in this case the government criminally prosecuted mr gutierrez for illegal entry and the crux of the government's evidence was derived from mr gutierrez is a file and it was for that reason that mr requested a jury instruction that the jury be instructed as to the differing burdens of proof between the two proceeding this was critical for two reasons one it was mr gutierrez's theory of the defen two this is unique evidence judicial findings from another proceeding held under a lower standard of proof the jury needed an instruction as to what that evidence was how they could view it and how they could consider it oftentimes and there have been in the ninth circuit repeatedly approved the use of a file i'm sorry as in the ninth circuit repeatedly approved the use of the introduction of a ved so called a files in these kind of cases absolutely depend what you have on him and what's different here well this was his theory of the defense you have with the government creates is a mountain of evidence we have all these documents from an a file this occurred in an official proceeding and a judge made these findings and therefore he's guilty but at no time in jury was told they had to independently find that beyond a reasonable tell all the elements including that he was an alien right absolutely but the jury didn't know what weight to give that evidence the jury was not told that that evidence occurred under a much lower standard of proof and that was the crux of mr gutierrez's defense was what the government presented the documents and the information from  was determined under a lower standard of proof clear and convincing evidence and that it was his defense that the government had not submitted proved beyond a reasonable doubt that he was in an alley and the court did give a ninth circuit model instructions  is on an abuse of discretion standard i'm just suggested giving the model instructions in this kind of a case is an abuse of discretion i'm suggesting that the district court erred in denying his theory of the defense and i said that isn't my question please answer my question you said that the district court gave the model instructions the model instructions are those which have been put together by the ninth circuit as those instructions that should be given in this particular case given a documents giving whatever these are the instructions the district court had an instruction from you which was different than the model as i understand it now hope you're not suggesting it's wrong the district court in that determination is reviewed didn't know and not to novo but for an abuse of discretion i am trying to find the case that would suggest that because they didn't give the instructions you wanted them to give that in there was  couldn't find it and i don't think you've cited i mean you gave a great argument as to why i should have put your instruction in rather than some other instruction i got those all the time when i was on the district bench but i had to make a decision as to which instruction i would use and whether would cover the burden that would be necessary and i often looked at the model instructions to make that determination because the ninth circuit already reviewed those and said that's a good thing to do and i used the model and now you're saying because i didn't adopt your instruction as the district judge it was an abuse of my discretion am having a tough time with the argument i know you can go where you want to go but i'm having a tough time with that argument because abuse of discretion is giving deference to the district court in those tough to terminations on jury instructions and then even then if they made a bad decision i'd look at harmless error so all i'm trying to do is get you to think through the standard  review you've got to hit with when you come up here this is not what we would do this is the did the district court do it so badly that it was  logical that there's nothing in the record which would sustain it well and i don't think we need it so i i'm trying to get you to move on to another because i don't think that's your best argument i guess in summary what i would say is that it's inadequate taken as a whole when you take the instructions that were given and what was requested you look at scenarios where we enter for a for b evidence the jury is told how they can view that evidence what they can do with it when you have a prior conviction admitted the jury's told what they can do with it how they can view it was absolutely critical in this case that the jury knew that the majority almost the entire government's case well that wasn't almost all of the cases there were a ated records from the five and then there was a statement he gave to the officer on the scene the only evidence the only way in which the government would have had sufficient evidence to establish alienates was why bringing in those a file documents gutierrez is arrest and his admission that the scene standing alone that's not enough under hernandez this court has set up an individual's confession and there manner ventry those two alone is not us instructions regarding when a files are used well i think this court's line of cases in regards to theory of defense instructions well but you stated your theory of defense is that they have to prove that they weren't prevented beyond a reasonable doubt but isn't that always theri of defense but i mean it any criminal case if you said anything other than that as said you know you're always holding the prosecutor to the burden but it's so rare in a criminal case that you actually bring in judicial findings from another proceeding and that's the danger what weight is the jury going to get that without being told what that finding what happens but if if i'm to understand what happens in every case like this so it i was my question if you don't like the evidence and you don't like what the evidence says or what it is it seems to me it's the attorney's duty to say why the evidence does not meet the measure of burden of proof but it not just sit there but it's the judge's job to instruct the jury on the last a minute there's a lot of evidence that comes in from a lot of different ways facts from witnesses testimony reasonable doubt i just think the danger is without the jury being made aware of what the entire government's case was based on the jury's going to give it the same weight they're going to assume it's a judicial finding it was made under the same burden of proof and that's the danger here in these cases it was a simple theory of the defense instruction the evidence warranted that theory of the disk defense instruction and that's why mr gutierrez requested it now the other issue we raised was that the trial from the translator and administrating officer yes that's correct and as to the other there was not but it was essentially the same kind of statement right or was it wasn't material difference between those two statements there were not differences between so if either one of them was properly admitted the fact of the other day had been improperly admitted would be horrible sure yes i think it depends on the problem is here is if you start with a two thousand and thirteen statement and that was the officer who did testify a trial there are a number of questions doubts that are called into question when you review the documents she never testified at trial that she reviewed mr gutierrez or answers with him and then had him sign this so it's hard to say did he really adopt what was on paper you can't because he never testified these answers were read back to him for accuracy i think it's more apparent when you look at the face of the document there's a space there that said i have read or have read to me x number of pages and then it instructs the person to initial both page sign at the bottom and then also note if any corrections were made and that wasn't done it's completely blank i'm i'm interested by your argument because i never saw any your papers where you complain that the statements themselves are hearsay i believe in the original the only thing you ever argue about is that the translation is  isn't that a very tough part human for you if you're not going to challenge the statements in the persian place well i think you have to start with the  well look again i did never see that i saw the translation is hearsay and therefore somebody needs to come in and document about the translation but i did never hear that the statements themselves were hearsay and that to me was a final point well i i will double check but i thought the argument was says you know things can be hearsay but if no one of jack's then they become like just any other evidence correct i sometimes weyers don't object and let things and first strategic reasons my understanding here was the the written record of sworn statements both of them were inadmissible hearsay and the government's argument that they were adoptive admissions is contingent on the fact of whether mr gutierrez really did adopt these admissions in this case goes through the fact or you may want to look at your brief and make sure about that i will thank you very much best to start where we left off with the record of sworn statements the two thousand well if if do you agree that if we would find that salinas his signature is insufficient to allow admission of the second record of sworn statement the second statement should have been excluded no your honor i would then argue that it was in this was a public record and it was nonsense testimony and that although this court has never reached that exact  compare have any evidence that something like this would be non testimony but your best case for that my best case is more of the group of this is that this court has looked at to determine whether if all documents document could be considered adoptive and it said that a signed document even if signed or sorry signed document even written by another and others would words would be adopted by a party if you signed it and that signature would the reason why you want to make sure is the same case in that case we said except where there is a considerable language barrier and evidence does not support and the inference that the form was read to the victim or that the form was a verbatim record of watch signatories said that's what translator was gone from the room for much of the interview that he did not make the statements and then the answers on the form were not for me to him we have none of that here and i think the defendant testify in this trial he did not so well what was the by the defendant for that and a declaration and in the declaration what he said and what the court found i think you made reference in this ruling was that he did not remember the proceeding with this immigration officer i don't think that's in the record ok but in any event at the risk of asking you a leading question the would you agree that even if that second statement was wrongly admitted because it's so much overlap with what was in the first statement where the translator administrator did testify that it would be harmless or at worst oh absolutely there was considerable overlap the  two he's cross examined and he's cross examined about the signature line and how on the second page of the place that was supposed to say i had the following so many pages read to she was asked ok and that's to certify or to signify that this entire farm has been read by the individual or been read to them that answer actually the one that says signature of alien is explaining that i've read everything to them and then she continues that particular line says i have read or read to me the foregoing statements consisting of so many pages that is usually self from the computer we have a system and it auto populate and at that particular time later on know so i read to him after i was all the interpretations of what he has stated and i read that and then he says ok in other words information from you she did in fact she reviewed everything in this file she have her testimony in court the defendant told me the defendant told me why as to one of the statements because she don't have the person on one of the statements that the defendant told me right that terms of maybe i meet the person that came and i'm passing the statements one of them actually took the statement and the other one didn't write i mean that they didn't have two people come in for the statement it was one person for both of them the two thousand and fourteen translator questionnaire i did not did not comment so there they have a slightly different posture relative to if the if it's hearsay yes two thousand and fourteen would have to be admissi let me ask you this just that issue of the jury instruction and when in are and when introducing a files that whether the proposal of a different instruction to say that that the proceedings that are contained in the have a different standard of proof is that is that an issue that comes up in these trials all the time this is a standard request by defense counsel to get the the preponderance of the lower burden for what happens in the n f l proceedings i don't have a great answer in terms of percentage it does come up from time to time i'm just curious from the standpoint because counsel said there wasn't a published case on that and you know so i'm wondering is if this comes up in every single trial maybe the court should consider publishing it it's a request that i've seen more than once or for that's the best answer i can g  what was admitted into evidence were an administrative proceedings order and a reinstatement and those don't have the title of a judicial officer and then they have the title of a border patrol agent and it was made clear enough after ortiz's testimony that the defendant was not presented to an immigration judge so to the extent that there could be possible confusion about whether or not  from the border patrol agents the fact that he hid in brush lying face down in the dirt for over an hour all that was powerfully powerfully spoke to his alien age beyond that as we just discussed you had after or  testified about his statement saying that he was born in mexico his parents were born in mexico he had no permission to be in the united states and he'd been removed before you also had his field statement to the officer that he was a mexican citizen and that he hadn't been there before and then for the removal again we don't even need to rely on the documents we actually brought in the officer who removed him through arizona ten days before he returned so we really could have done without the documents all together they were helpful but the most powerful bit of evidence from the documents wasn't the order of removal and it wasn't the findings we didn't really rely argue that at all it was the record sworn statements and we covered that the evidence was going to come in one way or another finally i would emphasize that one reason the judge did not give the order besides the fact that the immigration judge order wasn't entered into evidence w we don't appear to have any additional questions thank you thank you the regards to the record of sworn statements the government's closing hinge heavily on that that was the first thing they highlighted in their closing argument was those two statements neither should have come in the two thousand and thirteen does not provide  significant in dish of reliability that mr gutierrez adopted the statement and secondly even though the twenty fourteen statement was basically a recitation of what was said earlier officer mccarthy did not testify a trial so we would ask this court to adopt the reasoning of the fifth circuit in your own caldera which i cited in my brief and find that the admission of a record of sworn statement also known as an affidavit is a violation of the confrontation clause thank you thank you both for your argument this matter will