beginning with the theory of defense instruction the instruction that was given in this case did not adequately instruct the jury as to the defendant's defense the instruction merely says that the defendant contended that theory the facts adequately covered by other instructions and at that point the judge agrees and indeed gives the instruction minus to spend his face on the government objection and by doing the healing the reason that conscious desire to answer or whether the conscious desire relates to being without permission in addition the whole idea of having a conscious desire not to have permission doesn't really make any sense  all over the world can have the conscious desire to have permission to enter the united states that doesn't make them not guilty illegal entry the key fact here is that a mistake of fact as shown and prestigious told very that that mistake of fact negatives at least some light on what law you should use to decide what happens in the standard is they would say it was plain there the standard is going to be whether the instruction given adequately covers the defense theory the cases that the government cites for the proposition that the jury doesn't have to be told that they must acquit or that the jury doesn't have to be told the instructions in a way that puts too much emphasis on the defense case all of those are cases that merely fill back to the rule that  to the next issue another reason that this condition violated the sixth amendment is because it occurred in violation of shelton which is a new supreme court decision that happened before this trial that an individual can not have their their sense enhanced or i'm sorry cannot be convicted because of a prior proceeding that was on council  simply by calling something civil or criminal that isn't going to conclude whether or not it's civil or criminal i think that sure ok but it isn't clear that the right  that's basically what they limited nichols to but we're not talking about a mere sensing passing before this deportation or without this report haitian this individual could not be convicted at all of the crime that he was convicted of he was convicted of felony illegal entry after deportation and subject to sixty three months imprisonment and that was a direct result of the fact that he was deported or the deportation proceedings and shelter says that's not  anymore after shelton shelton makes very clear what the limitations of nichols law are and it makes a clear rule that what makes a difference its potential and that's when there's potential for punishment that this  they would be not guilty of the crime if the jury believed it and that is just the case here as i mentioned earlier hostile fire can be read several different ways conscious desire is one thing and perfect is another you not guilty of an attempted entry not something that makes you not guilty of being found in the united states i think that for example for a found in a fenced in that case having him take a fact in something that is going to argument here comes from mason and just pointing out again what it is that happened in the record the trial counsel cited to the cakes it cited to mason when they submitted the proposed instruction and they pointed out again to the judge saying that stands for the proposition that the jury never has to be told that they have to quit if they believe the defense theory and that's what i was trying to get to earlier that's put now that he read that he cited does sound really good in terms of the statement that he made  you is that that particular instruction that was cited was adequately covered by other parts of the defense's instruction it's not the case that the court in warren struck out the mere sense that the jury would have to acquit if they on mental the sixth amendment is that you are you have a right not to please have the jury be told this is what ten to ten but you have a right to have the jury be told what the law is on what it is that you are  instruction of record i think that's a long way to go i think the court passed on it the government had a chance to argue about it below and they want it and that's why we're here now after this idea about him having a mistake about whether valid i just think that that really stretches the meaning of the word valid if he thought it was valid i think implicit in that is that he thought that it was  he thought that he had permission to enter the government didn't say below all of this is a misstatement of law what the government said below was as they're saying now this is adequately covered by the other instruction and so they can't come up here now and say oh it was simply an clarify a little bit talking about well he didn't really commit a mistake and then at the very beginning of defense counsel closing he says yesterday i told you this was not going to be a simple the theme and what mrs clinton told you was  go to the final issue the shelton if you must of the discussion here during his part was about prejudice and i could see how that would seem very relevant was never any discussion of whether or not he'd actually committed to solve they don't look to prejudice they look to the fact that there was no council pointed and secondly he talked about how there was this waiver of tribal and i think that's even more on all sorts of shells and because shelton goes really far to talk about how this individual was warned several times the defendant and felt they were told again and again about the peril of being represented oneself they were told about the perils but no time and with the key in shelton where they told that the government would provide them with an attorney and in the expert records a supplemental extra record  even more he's told you can have an attorney but at no cost to the government is told the government will not provide you with an attorney and that's the key to what's going on here this waiver that he's talking about well that's after he shelton waived after all that discussion because he was that he was not entitle to the government paying for the attorney and that he was interested and there's evidence that it's more to develop also an agenda being represented by someone for federal