through questions and answers and i counted no less than seven questions with six answers and in closing arguments commented on his right to silence and violated the supreme court's prescription indeed since it was preserved it's the government's burden in this case to demonstrate harmlessness beyond a reasonable doubt let me just give you a sort of colloquial statement of my difficulty with your position and get your reaction to it it seems to me that the prosecutor's most powerful argument was permissible one the pre arrest silence that when he presented himself with the border nothing about a man with a knife nothing about someone chasing a normal person who's by someone with a knife and who's terrified for their life when i finally  outcome what's wrong with that the prosecutor made those arguments and knew how to make them and limit them the prosecutor specifically asked the questions of each individual agent powerful evidence why isn't everything else pale by comparison because absolutely mr lott has explained precisely why he didn't make those statements and say look i walked up to them and said arrest me i want to be on the streets i want to be safe and even that he did that he did indeed make statements that he believed were suggestions to communicate his threats and he explained those the statements that weren't explained were in response to the prosecutor's questions where he went on to state things that just the first time you ever heard told anyone of the fear was yesterday and that question was answered only the answer was record and that's excerpt of record page two hundred six he also said he told no one on september seventeenth of these threats clearly in private and impermissible questioned the judge sustained his own ejection but nothing that threats and there's an answer there and then he says you never told any of the border between patrol agents about any threats that occur to you in mexico no stor you never told any of the border patrol agents who were there about after he's assured under dolittle and the miranda warnings that his silence with the border patrol agent harrington isn't going to be used against him it clearly was these were very powerful they were not  the government did go for it or in spite of the announcement but the problem with that is that just because the judge may believe because of pretrial hearings that it's in the pre processing and that the prosecutor in his own mind thinks that's what he's asking about this court's cases are very clear like no man is says specifically that well the government could have asked a question such as what was his isabel response instead of what was his if i'm wrong about this there was overwhelming evidence of guilt and therefore because he admitted that he is the elements of the crime we're talking about soley in defense of duress so the government away with it because the judge some have didn't understand where the line was where the prejudice specifically was the inference of guilt that the prosecution asked the jury to drop the prosecution did not let it in anyway the closing argument remarks didn't limit his questions to you know what if i was really scared i would have immediately said to the security officer oh my gosh there's people trying to kill me that's not his argument and he couldn't make that argument because mr montez in fact comes into the united states i mean he doesn't go without a needle with the population he hangs out at the port of entry right outside the door he keeps coming back and he asked repeatedly arrest me consistent with his statement that he wanted to be off the streets not necessarily for because he was afraid of somebody can and i thought oh because he didn't have any words for number three but there is a dispute between mr lopez a statement and the border the jury heard all of this yes and the jury made a determination regarding credibility on this issue but that determination was very early infringed upon by these comments on sounds because the prosecutors  i still keep coming back to imagining the absolutely perfectly proper argument that another prosecutor who says i want you to think about the first half hour or whatever it me would have had exactly the same effect and i guess i just have difficulty seeing why this very slightly broader argument would have a different effect on the jury who had an opportunity to look at your client in the i gaddis where the i guess my difficulty is that his silence for a very long period of time in this case because it took a long time for him to get arrested as you pointed out in your colloquy a whole lot of stuff happened before he was arrested so that whole all of that silence is completely admissible and is completely proper subject for argument questioning and i just have difficulty seeing that any jury would have had a different reaction if the demeanor and they just didn't believe his story of innocence that's not what the court said there or in the long verses territory of a lauria where there was one comment and the case was reversed in newman where there were three comment constructions which we don't even have here and in all of those cases there was also a suggestion and especially in baker that there could have been a proper argument as to the post a and the court in baker say that you know without an explanation of brand there in a limited instruction there's no reason to believe the jury understood the narrow grounds on which counsel statements may have been permissible and that and it in this particular case there really the prosecutor really focused i think primarily on the statements that you never told anybody nobody at no time does this must be fal and there was no explanation offered for the jury to fall back on to accept from mr lopez as to the subsequent period as to the border patrol agents which these no less than six of these seven questions focused upon that at the outset of the trial what he could ask questions about what you could use an argument what you could use a rebuttal and yet you used it on and educate only  purposefully because i'm sure as a well trained lawyer you would know how to limit the argument to comply with the judge's order so you do so for me you know evaluating why would someone do this it seems to me would be to get some tactical advantage which rich kind of makes me think that if there was something harmful about this and you knew what it was you are there was  specially in my closing argument i tried to focus on the immediacy and defense lawyer to tell anyone when he came across the border any of the initial agents is what i tried to focus on  filled out and that defendant claimed that he tried to indicate that he feared returning to mexico but then checked another box that was he listed there are two forms of that it really to me this is a credibility issue i don't really know if he was telling the truth i don't really know if it wasn't a dragging person you know maybe the next can police were pursuing him and i don't know how that would and he gets up there and testifies and the government overreach to further undermine the credibility it just seems to me that you can't meet your burden of proof that it was harmless also getting into the discrepancy on the box and any kind of miscommunication on the administrative rights form the defendant check boxes that defen statements to any of the officers about being chased because he was scared so that was the door was opened by defense  compliance the degree of cooperation during the interview was certainly addressed by defense and the government tried i tried to focus on he immediacy element the the evidence was strong here in the defendant it was over six hours later after he crossed the border he first asked to be arrested as nightfall was coming so there was no as far as the immediacy on that is it wasn't even close we're talking about six hours later he told no one in he admitted he told no officer regarding anything about being chased by anyone from mexico he passed through the primary officer who he didn't he came back to the security guard when he said i did not want to spend another night on the street that were the facts of this case he had an opportunity to immediately turn himself in when he crossed the border and there being no immediate threat of death or serious bodily injury and other alternatives to escape from the threat in immediately turning himself in in this case  in this matter so that seems a pretty fair focus on the post arrest silence because that's a pretty long and nice time was there from the giving of the tell anyone as well you know i just don't understand why the minute has probably a very strong case an argument over reaches in this kind of thing creating these grounds for missing try to be very brief first of all the government's position that the defense opened the door that wasn't the position taken in their brief with respect to a question of defense counsel their position in defen opened the door by asking about the form the form eight to six which is a form defense never said he didn't tell anybody anything and they also claim that the defense opened the door because they brought up evidence was compliant and that compliance went to the demeanor that the government actually elicited in the first place on direct examination i don't know where in the record the government's talking about that get ever tell any agent anything i do i'm not don't believe that that statement occurred i was trying to flip through quickly now i didn't hear a record say but that was not the position taken in their brief and i don't think it's supported by the record but what is supported by the record is their position during closing argument which was that the entire defense to rest theory was guided because nothing to anyone at any arrest going but he did not tell any of the agents any of the immigration officers any of the customs officials anybody that had been threatened whatsoever and then he goes on to say there was no duran's that was related to any that i said i want to be a west did arrest me and then he asked he never told agent but her agent hundreds and he said i told him i wanted to be arrested the reason that the government went on and asked in a way that they did they did because they knew there was no answer to that