one or more of the jurors that mr symtab was staring at the jurors and trying to threaten them or in some way fluence their verdict it was brought to counsel's attention during an afternoon break the first day of i guess i should clarify that the or more than one juror who felt that mr stern tough it been trying to influence them you know what the exact information was and what the key information  imparted by the court was that as i recall the court's words that there had been a statement made by one of the jurors two on one of the marshals that he or she felt that mr sim top had been hi i recall there was the district court focus its attention on mr sim time and seemed to treat it as a problem that he had and he denied that he was staring at anybody and then the next day wasn't of the motion it was made or the request was made for the camp was for interrogation of the juror and there was a specific motion made to candice or interrogate the gerry the prize the court that i think that the appropriate action would be to canvass the jurors when i knew somebody had raised so are we review this for abuse of discretion in the third and sixth circuits similar allegations were made and district judge for not specifically questioning the juror and noted in the sixth circuit they expressed the concern that to allow a defendant to manipulate possibly manipulate the  journey would be a problem so given the abuse of discretion standard in the you know district courts fairly wide latitude what is that we should be doing with this at this stage of the proceedings i think at the very least what this against your argument that there was a precedent i would assume that a jury that was prejudiced would want to convict on every count before and i could and i guess my response to that that is i don't think either i or this court can come to that conclusion which is we don't know i see what you're saying but i don't think what we hire cases have recognized that when the jury returns a split verdict that that tends to undercut an argument that the defendant was pre whatever the issue is that he's claiming it was harmful to and i guess that in other cases i don't think that the ninth circuit is held under you know these particular circumstance that that something that would be taken into consideration again i would just repeat my think that's right i could file a case directly on point but but i do have the same concern that judge fisher was questioning you about and that is from a chart trial judges and a trial lawyers perspective there are times when it is better to sort of leave well enough alone and not create a problem by conducting the hearing and meeting a bigger issue out of the and may have been the case your client deny that he was eyeballing with jury and trying to intimidate anyone and as i read the record judge hadn't looked at it and said ok i'll accept accept it for the word and then he ad outside the presence of the jury your client to make sure that nothing like that would occur in the future why shouldn't we conclude then that the abuse of discretion standard that's good enough under on this record i would say it's not good enough number one precisely because mr symtab tonight that he was staring at the cherry and so the jury may very well have that thought on misconstrued something he was doing and and ultimately that that affected its verdict i think also what i would with what i would suggest that the judge should have done here is to question the juror both as to whether or not he or she was unduly affected by this and also whether or not that your had communicated his or her concern i'm sorry we're not hearing hold on hold on we're not hearing you ok mary rose very good ok you used her you you use the five minutes of your time all right i will haul away from here then jurors perception and what troubles me from what i see on the record from judge hadden is that his focus was entirely on admonishing the defendant who deny that he did it so that left hanging the question that counsels raise now is that we still don't know whether the juror who took enough trouble to talk to the marshal and said here she felt threatened ever had that issue resolved as far as they were concerned the fact that they were admonished not to make their minds up or whatever and i'm not sure exactly which issue judge has and was addressing when he made those remarks but even if he was addressing that to the issue of  were that they felt that they they were just bothered by and wanted to stop this i recall i know that was clearly the case in the first circuit decision so here we have a case where in fact the communication was that the dirt did feel threatened and you know when we 're looking for guidance as to how you resolve the i which i agree is a very close and difficult question but if a juror is in fact intimidated and feels true and then nothing happens in the process that alleviates that  we're left with a potential due process violation and so while there is a discretion there we have to have some ability to look look back and say was it handled properly i don't know what we do with called an eye flashing incident something i had never heard of but apparently within the nation it is a serious threat to whatever i flashing it is to do i flashing and we had some of that going on in that case and i was able to you know query the jurors make sure that nobody was intimidated by by that behavior the defendant  remember went on to get convicted in the appeals were denied and that was the end of it you know i think that what church tallman says is absolutely on the mark one of the concerns  trial judge when you have a situation like this is that you don't want to amplify the problem in other words you don't want if you see that the problem is not significant you don't want for instance to even if you sequest them in and say you know is this going to impact your verdict is this going to you know the jury then even if you tell the jury don't talk to your fellow jurors about this they go back into the jury room and then sometimes don't heed the judge's instructions and because everybody is curious as to why they were called in on the other hand i'm a little troubled by the fact that we don't know precisely what impact  s threat may have had on that juror because they were never asked and i don't i don't know because the record isn't clear here as to why judge hadn't didn't make that inquiry but if he would have said on the record well i'm not doing this because i've observed the juror i didn't see any of this myself and i don't want to create a bigger problem that would have alleviated some of the concern but he didn't say anything he just said well i'm not going to take a position on this and t government's argument somewhat speaks for itself we don't know we don't know what effect this had and that's why there should have at least been some sort of inquiry into the effect this may have amateur state where you're not taking the position that that hearing is required in every  instance in which there is the suggestion that something that happened in the courtroom as opposed to an external influence on the jury requires a hearing are you know you know and i think the judge fisher is correct and the sixth circuit case i think the third or first whatever it was this is a case that i think is taken outside of those other cases and that's why i think something should have been done to determine what effect if any this had on the jury i think you have to just so the evidence you're hearing not a new trial necessarily would you agree with them the government that if we were to agree that the proper remedy is now a new trial rather than a residential hearing that an evidentiary hearing would