the right to a jury trial that constitutional privilege also entails they can comment and write for the defendant to have a jury instruction for each element of the crime those are the words of the supreme court in united states versus go dean and there's an end bank the court should keep in mind that it is a constitutional right to the extent that i expressed it is the only extent let me ask you as i understand it there's a five foot fence goes for miles both directions barbed wire on the top where they caught the man american flags all over the place and jack in the box a post office huge post office how can we call a how do we avoid harmless error because the trial centered around the entry not around the found and there are two separate crimes under thirteen twenty six actually this is three counting an attempt but the founded offense is a different offense from and the government may charge in the content of proving the disjunctive but what this trial centered on was the entry not on the found in and i'm not sure where you say centered on what you mean by centered on those were the instructions  government before and after the aberrants was about entry however the government the evidence was very disputed about where how when why the entry occurred the defendant's direct testimony was very contradictory said that there was no sense there nothing about a five foot fence there was no foot fence no markers no boundaries your recall this is not your ordinary defendant he lives in a tomb he drinks very heavily i presume drugs very heavily not your ordinary man on the street by any means i'm sorry go ahead do you think are you saying that he did not he did not know he was entering the united states when he entered but when he was caught he recognized that he was in the united states well  is that i mean is that essentially what the factual vermine is the trial centered around the entry did not center around the fountain and he did not as i recall his direct testimony he was not on cross do you know you're in the us right now now where a person is found hundreds of miles from the border of course this court will presume that he entered voluntarily because he stayed but you don't know how long valdez was in the united states he might have entered that day he might have entered three weeks previous he kind of sleeps on the street the way i gather it so he might have been here a long time he might have been here a very short time and the distance from the border is really right on the border the agent testified you could see the port of entry from where he was now my vision is not good enough to see a mile and a half as the agent testified so if you can see the port of entry it's probably much less than and then a mile and a half and that's when he told that way but that doesn't mean his entry was voluntary the word voluntary is different from the word knowledge both of those are common words are in every single dictionary in the world but there are different concepts knowledge means you're aware of something voluntary comes from the latin stamboul oh i want to i it's something you do of choice if someone's mental state is that they don't have much of a mental state to begin with but it's clouded further by drugs and alcohol he may not be able to form the intent to voluntarily cross the border assuming he did it himself but the point here is that the government provided no evidence whatsoever of how where why and the circumstances of the entry which i objected was implied in various decisions and lo and behold in salazar gonzales there was a panel that agreed with me something different but anyway it's along the circuit right now as we speak today is that voluntariness is separate from knowledge and the record in this case is so clouded and so uncertain that the court cannot say beyond a reasonable doubt that the verdict would have them the same if they had been instructed that the circumstances of the entry had to be voluntary found to be voluntary as opposed to  just being there there is no we claim that the government is not entitle to a presumption even on a found in a fence because the circumstances are that the fellow is right at the border he's within eyesight of the border and that's what the age that line of analysis then how do you know why do you think the error if it was heart was wasn't harmless and it was not harmless because the government did not show the circumstance and salazar you had a group of eleven illegals and it was such that the agents could see the footprints of eleven illegals approaching the fence and on the other side of the fence they it's more of a herd i call it with all the respect that's twenty two feet on the ground and the agent followed those twenty two feet as they  cemetary and is found and the us north of the border near jack in the box post office he has to have walked across well you can see his footprints are not true true but how did he walk across that he just of voluntary only or did he not do so voluntarily was he dragged across by it but it was not there there's no evidence for that excuse me sir there's no evidence really at that as there is no evidence but there doesn't have to be because it's a basic element of the offense even if you didn't take the stand to produce any evidence the government has the burden of showing that the entry was voluntary but in this case isn't the circumstantial evidence as compelling here as wasn't a testimony fairly clear that he did have to come over at least a five foot fence to get in the united states conflict in the evidence your honor his testimony was that there was not a sense there there was no markers he lives there i assume he's not drugged or intoxicated all the time and he should know a person who resides a short distance from the border should certainly know whether there's a fence or not you should also know that there's a border there i mean some point the at some point his condition cuts both ways doesn't it i mean he doesn't become a very reliable source at trial if his basic defense is non complex mentalists well if i was your i think you convince me your honor but that's a factual conflict  fence answer i don't think i jumped the fence because i was very drunk i don't think even when you're not drunk you could jump the fence because it's very high you know in other words he knew a fence was there somewhere there was a fence not all not everywhere but there is a fence someplace harmless error in this case because the facts are clear beyond a reasonable doubt that the defendant would have been convicted but for that are the facts in this house why couldn't a jury counsel why couldn't the jury have believed after watching  testify and appraising him if they have been instructed that intent was needed why couldn't they have believed this guy is so not so he could jump a fence and have no idea he was jumping the fence i could have been so drunk he didn't even know he was climbing the fence because he's got this mental disability evidently just from looking at him everybody meets some thinks there's something wrong with the mentally and  also he's a heavy drinker so why couldn't the jury decide that between the two things there's a reasonable doubt i think neither says harmlessness has to be established beyond a reasonable know the contradiction doesn't have to be expressed words the jury got to see him testify so they could draw their own conclusions about the many and also the bare fact of living in a tomb in a mexican cemetery and  because of the overwhelming evidence in this case that was in front of the jury and the jury heard all the evidence in this case and the jury heard that the defendant was found one and a half miles from the border north of the border w missing an instruction on the element why is that harmless error or your honor actually the defendant had probably about five different defenses he said that he first of all he could not remember what happened that night that the only thing that he remembered was when he was in the cell yet he also argues that he could not have possibly jumped the fence that because he was so drunk he couldn't have climbed over the fence yet the evidence in front of the jury by agents there was that when he asked the defendant after reading him his miranda rights and he gave a sworn statement the defendant actually admitted that he eagerly jumped the fence between mexico into the united states now after the fact one of the fent took the stand he testified that he must have i don't wander using the word defenses but they're not defenses he doesn't need any defense the government has to prove in tension between beyond a reasonable doubt that's credible if intention is clear beyond a reasonable doubt even without an instruction that would be good enough hundred meter but he doesn't need a defense of drunkenness there is no such thing it fall into impacts occasion he doesn't need any defense at all so you have to show us where the american born in tucson arizona he claimed to be a united states citizen and when i asked him for his identification he said he did not have any or asked him why did you cross the border from mexico into the united states if you do not have identification these are all things that the defendants stated in force by he said that he was able to cross the border because the agents at the border know sam so he didn't have to show his identification it was well your problem i'm having with this back when i used to defend drunk drivers someone was so drunk when they got caught they had no idea what they were doing by the time i got out of the police station they'd sobered up enough to like i only had two beers was a typical  one why isn't there room for the try to conclude he was drunk didn't know what he was doing when he crossed the border by the time the cop caught him after the walk to the jack in the box from milan ere he was sober enough to li honor even though part of twenty two testified that it was a mile and a half he could still see the porter so in the distance that it took him to walk from the border to where he was found he was able to develop in his mind as to why he basically said that he couldn't remember which is basically having no evidence at all in that case and that is evidence that there was no evidence from the defendant that they can consider so the only evidence in front of the  honor he stated as a fact that he walked eighteen miles in the united states because we don't know which of the various versions and treat the jury would have that's why this cannot be declared to be harmless error it's not at all clear when where or how or even why he contrary finding his direct testimony is that he did not have the mental wherewithal to form an intent to reactor and i realize this creates a tension with specific intent versus general intent  specific intent requires a mental state general intent generally requires just merely knowledge or awareness however when voluntary ness is introduced as an element of the advance that whole situation changes because volunt  is by its nature means choice it means a decision it comes from a latin word which means i want to versus no which means i don't want to so it is a conflict in the law when you can thank you your own case to sort of be submitted to the next case on the oral argument calendar which is