please the court counsel good morning harriet levin i represent mr king on a speech here as before i begin my argument i would like to just state that as argument to which is the an align argument i'd like to submit that matter on the brief i believe it's adequately covered and i would like to address the argument one which is the entitle and the defendant to a jury instruction regarding official restraint i submit to the court that under the facts of this case if there was sufficient evidence to warrant the giving of an instruction on official strain meaning your claim is testimony the officer comes up behind you grab you by the hand and then he tells me how come you didn't grant i was being watched the there was a dispatch to agent mcnamara and other border patrol agents upon seeing individuals at that fence and the agents were there within a very short time these are border patrol agents on bicycles who drive right there very quickly so he was within seven yards of the boundary fence and two minutes after he's entered a court that's according to his testimony but i submit that is supported by the testimony agent and yet the judge allowed defense counsel to argue it and why would you allow a man to argue that issue to the jury if you do not believe that there was at least some evidence to support that argument which again is kind of counterintuitive to the denial of the instruction if you say there's no evidence and that was the judge's words there's no evidence to support the instruction and you're repeating yourself the judge didn't have any responsibility given a jury instruction unless there's proposed to correct your instruction your position you have to take years for your instruction that was proposed was a correct statement of the law believe even that instruction is pretty far afield whatever judicial restraint is not sure the jury would understand which additional restraint it has and that was what the instruction asked the alien be free from judicial restraint in addition it's pretty broad isn't it freedom to go at large and mixed with the population what words that come from well it came from why  what we wouldn't even get to your issue unless there is a proper instruction how do you how can you argue this is a proper instruction the law well it was pretty close and i agree with you that that the instruction that mr nabil dot proposed was a bit that's exactly what i'm saying imbecile language is amazing judicial restraint can be unbeknown to the alien such as surveillance i mean talk about a model of plain language well i'm glad i'm not the child nevertheless i think that the court is charged with knowing the law and certainly once the jury came back and asked for instruction i mean i just didn't quite get that he didn't like that one when i was a trial judge it seemed to me that no i'm not saying that at all i'm saying that trial counsel gave an instruction which i agree with you was inadequate but the by that point in time after the trial court said you can argue this issue to the jury and then the jury comes back with a question asking for instruction on the law the fischel restraint by that point in time the trial judge should have taken the option of either instructing both country seven yards from the border fence for the errors of trial counsel and i do think that under the facts of this case there was sufficient evidence to merit an appropriate instruction it is unfortunate indeed that trial counsel did not provide one in a timely manner and one that covered the law correctly you know throughout the year the first thing you're supposed to do is the trial lawyers look at the instructions not the last yes you're right lawyers from the end and then it's a scramble and you get in this kind of a mess yes and you're right your honor and considering that this was the crux of his defense he absolutely should have had a proper instruction prepared in advance and told the defendant that he was being watched the whole time that he saw the group of aliens come through the hole he saw the defendant off back and forth and he saw the defendant by the bushies so seem to me however implausible that may be or however unbelievable it might be it is evidence that the defendant was under continuous surveillance the whole time  i don't get the concept of letting an argument go forward on a legal concept without a just instruction to the jury to guide their and that point in time whether the instruction misstated the law by using traditional instead of official or not it seems to me there hosty be some answer w they wanted some guidance from with respect to that and i think that that really falls under the category of invited confusion because just a part of clearly told the fence counsel that he was not going to give that instruction he said and he gave them an explicit warning and the warning is on page you give an explicit warning that if you want to argue something that is not going to be backed up by an instruction then that's your it's your case  something that is not for which there is not to be a jury instruction on you believe his testimony and through the other facts isn't it clear that he has a legitimate defense of not exceeding official restraint no your entire if that's true he has a good official restraint a lack of official restraint that would be correct i'm sorry for interrupting but that would be correct your honor if that's all that the defendant testified to on page one seventy seven of the i'm sorry not sitting he was lying down excuse me against the hill and then the key portion comes on the following page of the transcript page one seventy eight where he says i was on the side of the hill and he he meaning mcnamara well what i'm suggesting to you is that the only way that this doesn't make sense that you want to have an instruction is it's impossible for a mcknight american to think because if the jury decide whether or not he said it and whether it was true rather than us doing it based upon a record the answer is no your honor and the reason is this it's because it is not a credibility question you consider if you consider the defendant's testimony in total which consisted of hearsay double hearsay mind reading even as times and acknowledge that came into evidence and and it is becoming substantive length but he only indicated how i was being watched the whole time that he saw us when he came in through the hall when he walked back and forth and i was standing by three by the bushes that's what he said then he later said that he was actually by phil which is where he was found so if i'm watching you and i blink this instruction came about at the at the very last minute that the government had rested and it had and then this is when it came up in the context of the rule twenty nine judgment of acquittal when he asked for the instruction and then the attorney he gave him ten minutes to come up with an instruction he gave them a bad one the badly mistakes the law not only just the judicial restraint aspect of it but also that it doesn't mention that he has to be under constant surveillance doesn't say anything about being consequent or constant surveillance in addition the issue was renewed the following day so the attorney had all that evening to come back with a properly worded instruction just a minute here you're talking now it came out a message regardless of how you characterize the argument obviously in the minds of the jury there was a question so they come out and they say we want some and law on what is the official restraint and that instruction was that it was the standard instruction that did not include official restraint that it include all the normal elements but did not include official restraint then the official restraint would have been a defense and the jury raised it and the judge says i'm not going to talk to about it where does that leave us didn't the judge commit there by not instructing on and on that if you know because there was no evidence to support the  have to end up then if the statement by mcnamara allegedly made to the defendant was believed by the jury under the circumstances then there would be a basis for official restraint i am you have to  have to get asked to decide that the jury could not have accepted that statement is true and therefore the facts were never before the jury right now your honor i am out of time i answer your question from which you would thank you your hon no because if you consider the answer is no because if you consider his testimony he was and i'm talking about the kind of testimony agent mcnamara did not have him under constant surveillance by his own admission he says he came up from behind him i was on the side of the hill and he came behind the hill there is no evidence that he had saw him the entire time and he even said further if you go back one page in the transcript there is evidence from the defendant claims he said yes but then he he doesn't even try to argue that it was a contradictory statement and that's a credibility issue whether or not the defendant was lying or not but he says that he was lying down he was lying down against this hill who was lying down against the hill and then age mcnamara comes up behind him according to the defendant's testimony so he was out of sight for at least something and it would have been more than the pitch a comedy in a blink of an eye sort of situation he would have been out of sight and  and i would ask the courts take a look at page one seventy eight of the transcript unless there are any further questions thank you very much ok thank you think this court is correctly recognizing that this is a situation where the trial court suborned the fact finding role of the jury and refused to give them instruction on how to apply the facts to the law once the jury asked for directions on the law of official a strain that court was duty bound to give the jury the instruction and i'm not saying the question had given the instruction that mr not the dots to admit it but i am saying that there was ample opportunity for the court to provide instant proper instruction to that yury so that they could have properly considered the evidence and applied it i also submit that once the court allowed trial counsel to argue that issue there is an implicit finding that there was in fact some evidence and as judge reimer characterized it even if it was stand there was some evidence here he asked for the instruction on official restraint on two separate occasions who're before what before the jury earlier the one that was in there yes he asked the court to provide was what was his objection may i find it in the in the excerpts of the record if you want to know specifically