the morning honors in may it please the court my name is lauren clark and i represent mr vazquez this conviction in this case should be reversed for two reasons that both go to the heart of the case that as mr vasquez his testimony at trial first counsel to know they were not sit well throughout the trial the marshals in a typical trial the marshals might sit at defense counsel table in a suit they might sit behind counsel table they might sent in the audience section watching trial but they remained stationary throughout the trial this was different in this case and there was not any reason in the record or any indication of why they were acting in such a different manner is the common practice no your honor it is not not at all in fact a couple of months later i had to have a trial where a client in custody testified and he walked across the courtroom by himself in front of the jury sat in testified by himself in front of the jury walked back to counsel table the marshals were present in court wearing suits sitting strategically placed for school security purposes but that's not something i've never seen that happen before and this district and my co counsel had been practicing at the time i think for sixteen years at federal defenders and had never seen it was the marshals policy was to always place themselves between the defendant and the jury and he thought that was common but it is never something that i have seen before if the court is like you have the exact science to ninety six and ninety seven is th say ninety six to the bottom ninety six to the top of ninety seven the problem here though with regard to this issue is that mr vasquez is being accused of sneaking into the united states without permission and what's being conveyed to the jury here is that he's so dangerous that he can't even walk twenty feet to defense counsel table without law enforcement escorting him so even if a jury were to believe his testimony they might think they should convict him anyway because he's so dangerous that he had seen seven government witnesses a parade of witnesses coming into the courtroom and escorted sitting by themselves while they testified but all of that changed for mr basket as and because this was a defendant specific security concern and because the jury very well could have thought that he was such a flight risk and so dangerous that they would convict him even if they believed him because of this heightened security and there was absolutely no finding of need the disher court in the self at sentencing this is one twenty nine of the record said that mr vasquez's prior convictions were quote a product of juvenile misbehavior he had some theft convictions as a young man otherwise just status based offenses so there's certainly no nothing no violent courtroom outburst there's nothing to indicate that this heightened security measure that was completely uncommon in our district should be employed as the standard that would review the district judge allowing this to happen it is abuse of discretion your honor but i think under hanks and you the court can determine whether the district  even identified at the proper legal rule the novo and then determine if you would we have the clue that was prejudicial not necessarily your honor the government cited to a brief that says that in less inherently prejudicial the you should find prejudice i think under this case we do have prejudice here as i already indicated but because this is a defendant specific security measure and not generalized courtroom security it is one of those inherently prejudicial practices we would disagree on th witnesses testifying without any type of added security measure but they thought something completely different scene when mr vasquez testified now that marshall is sitting next to him as he stands from the jury stand the marshal stands as he walks across the courtroom the marshal is trailing right behind him all in the presence of the jury and the district court found that heard it said that he didn't want to send the jury out so that for the nicety of having the defendant walk across the room  so this is prejudice to mr vasquez because this happened in front of the jury and was not could not be seen in any capacity as general i squirm security when the measure was so focused i would like to turn to my second issue though with regard to the government impermissibly commenting on mr vasquez post arrest silence there was about ninety seconds from according to the dispatch tapes from when mr vazquez entered the united states and when he was actually arrested most of that time he was running according to the testimony at the primary drug and i think well it went back and forth between walking jogging and running depending on his report his testimony and on cross but either way for most of that time was not his interaction or wasn't a ninety second interaction conversation with you defied and study most of that time with his coming into the united states he had a couple of seconds where he managed to get out i'm being chased and then he was arrested agent five then testified that he took him to the station and spent some time i mean presumably some time we didn't there was not anything in the record to indicate how much time but the questioning and the argument in closing was whether mr vasquez ever said in the of these things but the ordinary case the cops are not involved in the transactions that are part of the crime or the alleged crime here the exchange with footage really goes to whether or not this is a crime or not so the testimony or not just of the for the saying something i was being chased for not saying something like please arrest me that all goes to the actual that either way the defense at trial was that mr vasquez didn't have the intent to enter the specific intent to enter the united states free from facial restraint course so whether he had said one thing or another we started going to the same basic defense of he was this court has evaluated similar circumstances i believe lopez is the case where the defendant had claimed ahead address defense at trial and he had many interactions with law enforcement some of them  the government in that case commented did the defendant ever say that he was coming indeed of the united states because of duress and he never said that and then this court found that even though he some of that might have been permissible and some of that might not because of the language of ever and never the jury certainly would not have been able to understand the limitations of what was permissible and what wasn't permissible and so they still found oil error because of the language ever and never and we have that exact language on ok if you'll only suggest he never said anything else i would still have zero issue with the word only because that still implies that he should have said something else and that would still be and inferring that he remained still be an impermissible comment on his silen had the prosecutor just said he said he was chased now he's had more time and now he's saying giving more details to the chase and said something about the consistency of those two statements that would have been permissible i please the court daniels if on behalf of the united states your honor on the first issue the district court was within its discretion that your idea to have the marshal do this know your honor and the marshals indicated to defense counsel that the they were going to you practice regularly in this court i assume i do yes and is this customary to do it this way i was trying to think of that back here i've done a dozen or so trials i honestly can't remember when the defendant testifies where the marshals are i mean they're always wearing suits and win the marshal says here's what i want to do in the courtroom to make a record and let each side what's appropriate your i think at the more extreme levels when we're talking about shackling or the use of prison clothes the law is clear that the court has to make a factual finding that this is theirs is the least restrictive means possible and that's compelling interest in this morgan vi s'pore oh the court explicitly held that when it's a lesser form of security like the one here that fact finding is not required on the record and in this case the court frankly didn't say a whole lot about why it was agreeing with the marshals recommendation but the record certainly contains enough information to support the need for at least this minimal amount of security i mean this was not a defendant who had a violent history but it was a four time convicted felon a gang member and someone who was in custody had been ordered detained by the court and he was about to take the stand in a very stressful situation to be cross examined by the prosecutor the court what have been around was well within its discretion and allowing at least this we're going to with a good ever acted out either in custody there at the court time i'm not sure it's not in the record your honor because the p s r course doesn't come into the leader correct at the very least he was a four time convicted felon about to take the stand in a highly stressful situation and know what the nature of the courtroom setup is it is about twenty feet from where the marshals would normally said so the jury is right next to where he would be testifying he's right next to the court and the other courtroom staff and that situation and it's certainly not i logical or implausible from the court to allow a single plainclothes marshal to sit at some distance from the defendant and between him and the jury how would have a following him in strikes me as odd actually again he wasn't the court before he went for that the marshal was not going to be touching him he was not going to be really physically escorting him he walked as the courts had approximately ten feet behind him for the twenty feet before he got back to the counsel table this was after he was done he backed down yes but again given the given the abuse of discretion standard and that the district courts responsibility to maintain the security in their own courtroom this this particular security arrangement falls within that discretion to for any way prejudicial to based on what the district court said this was so  jury would not have even noticed it at that the defense has not even argued how this would cause actual prejudice particularly in light of the other evidence in this case that the defendant knowingly came to did your you know that he was i mean it wouldn't we no one would have ever said that explicitly i think it would be fairly obvious as it is the supreme court said in holbrook versus flynn the the jurors know that the defendant appearing before them is not there by choice or by happenstance there's some amount of this practice here was even less noticeable or agree just and other practices but this court has affirmed including multiple uniformed officers in the courtroom and other visible signs that the defendant is in custody could you move on to so much issue yes your honor there's essentially three time periods that are at issue in this case there's the time period before the defendant was arrested when he first encountered agent fudge and field there's the time period after his miranda rights when he agreed to make a statement and then there's a sort of two hour window in between the two defense first argument is that that the prosecutor was actually commenting on this two hour window in between but there's nothing in the record to suggest that that's what the prosecutor was saying he's going to say that he never right never covers the entire period what he said he said never and then he immediately followed that by saying here's what he said agent here's what he said when he was arrested when he was witness about that two hour period except i think there was one question on redirect of the defendant himself where the defense counsel asked how long did you wait before you were interviewed but that idea that two hour window was somehow a time when he should have been speaking or that that's the prosecutor was somehow secretly commenting on that when he said ever that's just simply not supported by the record as a factual matter as to the defendant second argument that the prosecutor was improperly commenting on his silence post miranda  the defendant did not invoke his right to try to remain silent and he spoke and he gave a story that was inconsistent with what he told the agents after his arrest and consistent was that his story is course you're right i think first of all the standard is whether it's even arguably inconsistent once the defendant waives is miranda rights and talks just question whether it's arguably inconsistent and i think about it is in this case for two reasons one when the defender was interviewed post arrest he said that he was being chased when he came into the united states that is different from the testimony he gave on the stand here on the stand he didn't say he was being chased he gave this sort of elaborate day long story about running into the same three people three times and at the century said he felt uneasy when he saw this person on the bike for the third time and decided to come into the united states that's different from being chased by someone across the border  when he was interviewed post arrest he said that he was he didn't know who the person that was chasing him and then when he took the stand he gave again a long story about in this knowledge of jesus no he never test of the day knew the names of these people least that's what the defendant did here a one word response or two word response that i was being chased is very different from this long elaborate story about running into the same guy on a bicycle three times and feeling uneasy given that at least arguable inconsistency this was fair grounds for both cross examination and for comment during closing that closing argument unless  two main pieces of evidence in this case that the jury saw that that showed beyond a reasonable doubt that this defendant was not coming into the united states because he was fleeing and was trying to be arrested first with the video evidence which was directly inconsistent with what he was saying and showed him sort of casually walking along the edge of a of the border fence climbing over an interior fence and then walking through the pedestrian lanes which are sort of the vehicle lanes which is not of court he's walking at a normal pace before that point and then secondly when he first encountered agent fudge he didn't not only didn't say i want to be arrested he moved around the vehicle and continued on into the united states and i only stopped at that point and said he was being chased and then thirdly the defendant story that he gave on the stand was not believable it was sort of a bizarre rambling story involving running into the same people on multiple occasions around mexicali running for three miles to the border somehow happening to see the same person on the bicycle at the same dirt lot where he ultimately climbed over the fence so all of the evidence in this case  supported the jury's conclusion that this defendant knowing that came into the united states not to be arrested but to come see his family as he admitted in his post or a statement so for that reason even if it is doyle error we would argue that it's harmless was being chased and then he provided more details when he had an opportunity to but even if the court found that the statements were inconsistent the prosecutor didn't limit his comments to the perceived inconsistency between the statements and instead he something that is impermissible under under crudo and under a chair with sanchez that he was inviting the jury to draw meaning from the silence and not to simply point out that he had said something different before and when i looked at cruel it was talking about  doing that in the context of a person that is in the middle of a statement invoke their right to a i think that person requested an attorney here there was never in any and vocation of miranda as i understood the statement resign i watched or listen to  two points very on our first of corroded rely in part on miss career as indication but that wasn't the only analysis that was done what it said was it is the prosecutor trying to draw meaning from the silence or simply explaining a prior inconsistent statement that the prosecutor in korea could have tried to just had prior impeach based on prior inconsistent statements but instead took it a step farther to talk about what wasn't said she did invoke but that wasn't the only form of analysis that this court went into but then second miss caruso gave a statement of between five and seven minutes before she invoked her pre invasion statement is longer than mr vasquez his entire statement his entire statement was just over five minutes long almost all leading questions and he provided simple one word answers to the questions he's not under any obligation to answer complete answers or to provide additional details he answered the questions that were asked of him i thought the question was is there anything else you want to say and he's essentially no no but he also then to kind of lead into something that mr that opposing counsel just said is that he said he admitted that he wanted to see as his children and that was something that was explained as the stand too that his mom was coming down to make cally at that time that he was arrested regardless though we need to get the dual air of the fifth amendment error is clear based on even the one seen in based on the bulk of the evidence that even the one statement that ever and never language or harmlessness though we need to look at the entire statements the entire cross examination the entire closing argument and although there are other is other evidence referenced now that wasn't the bulk of what the