his defense theories because the district court failed to give crucial jury instructions in precluded his expert and in this case in which credibility was key the government repeatedly bolster the agent's testimony and painted my client that the court must instruct on the definition of terms that are that are central to the jury's understanding of the accounts and defenses excessive force ha legal meaning in this context it means the same thing that it does in the context of a civil rights action based on excessive force it means that the force is objective we reasonable and necessary under all the circumstances this court in fact has a very detailed model soon jury instruction that clearly explains the standard and lays out factors that the court sees that case when the theory is excessive course addressed with good truth i was going to ask about the or analysis case and how you deal with the fact that a lawful th wasn't defined officers can use some force to arrest the defendant and the only force that would be unlawful would be if it's too much force or excessive so i think that point is pretty obvious and the defendant was free to argue excessive force under the  jury instruction but as i've explained the details of what excessive force needs to be very critical it has to be an objective reasonable reasonable this test ascii objective the problem is if you didn't didn't object here's a play or a review you have to show that the euro d is obvious and it seems like the fact that we didn't know we raised it and else we didn't seem to think it was a problem there that it's up to the district or the district court is presumed to know the law and to connect the dots so the fact that we don't have a case right on point does not preclude our prevailing on this issue because there are lots kiplinger cases where there wasn't case right on point but the legal principle is clear in here the legal principle is the need to define crucial terms and out of its claim under the law that the same definition applies in on and so therefore it's plain that there needed to be a definition here and in the context of this case where there are lots of ways the jury could have reasonably view the evidence if properly instructed it did affect a quite substantial riots in fac your honor and it is because there is nothing in the record to indicate that this was an intentional relinquishment of a no right it was the prosecutor who made the record on it and the prosecutor sad that the lack of knowledge base self and the defense instruction would be the alternative to the regular stop defense excessive force instruction alternative means no i don't have here let me find it in in these terms as i understand it there were no basically had a choice between using one of two model instructions that our court has put out out of the base the baseline instruction from which the modification would to go with i can't remember which one was chosen but the one that was not chosen is the one that contains the language that should have been given and so the on the record the prosecution says we had a discussion about this we we jointly decided to go with this other both theories is that the instruction has to be modified to allow the jury to acquit on both theories and it's clear under the law understand decisions under lucene a defense is entitled to instructions i agree that six point eight is good but i also want to get what five but that's not what they said that's correct your honor but there's no evidence that they knew that they were entitled to bump instructions and in a modified way that allowed the jury acquit on either theory and relinquish that and in fact after the jury instruction conference in closing argument they went on to argue over and over again mr since you know told you that he didn't know the officer was an agent and if you had  submit it and that was you know that was something that was argued over never been so they were they obviously were abandoning bacteria in favor of excessive force they were arguing both theories and under the evidence particularly because you know even turner admitted that before my client did anything except for try to get up and leave he grabbed my client forcibly knocked into the ground and then once they were on the ground he wrapped his arms skinny legs around him to prevent him from ple and a random person out in the desert that's that i think anyone would have a right to defend themselves and try to get away from somebody who's trying to do them harm so definitely they are this is you can i ask you if i write that novel instruction eight point five the i here say should have been given but wasn't what have required the jury to believe you both that the defendant didn't know that it turner was a better officer and also that the defendant reasonably believed that force was necessary to defend himself against the immediate use of unlawful course so basically what the regular is or for that well get it plus something and if so how is that better for him well because the instruction that was given focuses on the reasonableness of the action but under the lack of knowledge instruction but earache reasonably believed in both instruction so i don't understand it seems like the officer as direction just makes it have more elements he needs government can repeatedly argue that it wasn't reasonable for mr since you know to believe that to not know that they were agents that the government has to prove beyond a reasonable doubt that he didn't honestly believe that it doesn't matter how reasonable it was and that's clear from morton and from the monster action eight point five so why did the government's argument that is it was substantially prejudicial not to in which what the government's burden is and or because it seems like about why it's easier for the government not her i just have trouble of yours and why this would have been better well your honor what you have to do is you have to fashion the instructions so that the jury can either it quit if they have read it they reasonably doubt that my client honestly knew he was an officer and therefore proceed as though my client is acting against some both theories need to be presented to the jury so that they know that they can quit on either theory and that's clear under the siena the defense has the right to alternate alternate theories and very quickly because i would like to present time i just because credibility was central here obviously if properly instruction instructed the jury could have acquitted and reasonably view the evidence many ways but certainly if they had doubt it might be agents testimony and lead my client that would have made it easier for my client and there are a lot of good reasons to doubt the agents because they contradicted each other on very key points as emphasized on thirty of the reply brief on hand they were all if they were telling the truth so that was just plain and simple a part personal assurance of brassy that suggested matters outside the record supported my support of the agents that's texan couching there was no reasonable  inference from the evidence and it was very powerful coming from the prosecutor who is the one who had a chance to think about it to craft her remarks to because it was obviously a very considered part of her argument and  i don't think so because in the context of this case the evidence that under the evidence my client gave they had an inherent motive to lie so they did have a motive to lie the only way they didn't is if they were telling the truth and that's why it was just which stays the court's standard self defense instruction is sufficient to address a defendant's claim that an officer used excessive force in the court in this case even went beyond that  or criminal of some sort or that response might be perfectly justified so that's just me entirely separate from the excessive force when you get into excessive force if the defendant didn't know that the person grabbing him was a federal officer but in that scenario the defendant would be justified in using force some force no matter what the identity of entitled to an instruction as i read the cases the fent was entitled to an instruction that that is a legally viable defense to put forward that's entirely separate from the question whether you have a right to defend against the use of excessive maybe i'm weird what if what i'm saying is if a young officer did what this officer did that would be an awful force to defend could have defended himself against that the instruction it's given didn't make a distinction who the actor was so that if in fact the jury believe ok i think i've got where you're coming from maybe you can address why you think that we have this but maybe it's a waiver in this case because the defendant knew he could have asked for the instruction it was clear that was talked about on the record this instruction was available and he the defense counsel opted not to ask for it that's waiver he knew about it he made an intentional decision not to ask for it that's waiver the defense argued to the district noted that the evidence on the border patrol use of force policy needed to come in because it was relevant to whether the defendant the agents were acting within the scope of their duties basically and that's simply not legally accurate under eighteen u s c want to live it so if the defense was trying to bring it in for basically to confuse the jury for an improper purpose ultimately so if the court unless the use of force policy says if you do this it's excessive the court said they would with according to get it that would have meant that kind of testimony and but the use of force policy doesn't do that and the use of force policy does not define what excessive especially as the defense was i doing this the defense argued that if the agents were towing policy that force was excessive that's just plain out running that demonstrates the kind of fear of three reason where it could lead to confusion so the court didn't abuse its discretion do we have or isn't that think that the judge was applying for a three and excluding this evidence i think the fact that her statement it one point about i guess that it actually if i remember correctly the court excluded ted it with there was a danger  record by that statement what the persecuted with arguing is that the evidence presented indicates that they had no motive to lie that these idiots would just know that doing the job did you know would lead the  proper and isn't that outside the record i didn't think it's i think it's actually a fair read frames from the evidence that there was no evidence presented suggesting that any progress were improper but that is it ever happened before objections this year later in that sequence which were sustained by the court so i guess why doesn't the context actually make it worse for you not better i think it makes it better because  to get the prior questions were not characterizing either of the agents testimony with the defendant's testimony it was do they would just highlighting that they were different which is permissible it's this one question w the other questions were ok so you look at it in their context i think that makes it so here what a few lines earlier from the question you've been discussing with judge miller was so are you saying that did not happen talking about what the agent had said that seems very similar to contest your testimony lie which is bad or are you saying it could be somebody could be mistaken which is ok by not characterizing it at all the prosecutor in this case was staying within the lines of what helping her allowed because g the difference without characterizing why there's a difference and the why is what entire was focused on he and you know the as a whiner inventing as opposed to mistake when i'm misunderstanding so in that sense it was it was not inappropriate unless a court has any further questions and i'm sorry for the video i don't know what happened on that we can barely see you down there a of prior use of excessive force is there relevant the prosecutor had no what no real way to know one way or the other whether the officers had acted inappropriately before the expert issue  of three the border patrol policy closely tracks the objective reasonable the standard of the th amendment goes through all the factors you know brings out that sometimes a deviation from policy is not going to make it unreasonable so if the policy had come in and the jury even though they would have had the proper definition of excessive force the poor then at least they would have known about it so i think if anything it would have alleviated any confusion and also  and also educated the jury about some of the factors that they needed to consider for example that it's very important to warn in the spanish language that a blow to the back of the head can be compulsive and can be  serious bodily injury and also on the official duties that it alone and in stand to this court clearly said that an officer he use excessive force is not acting appropriately with an official duties and that wasn't the issue address so you know that was not a proper basis to exclude based on four of three because really acting without outside of official duties and using excessive force is kind of two ways of saying the same thing and then finally on the lock of knowledge on it the jury was not instructed that they had to consider whether or not my client knew it was an officer and as i said initially most juries know that officers can use some force in affecting her an arrest so they would not have necessarily thought that it was a mofo under the facts presented here unless they knew it was a defense that my client didn't know it was lost and thank you very much counsel because just