multiple errors in his cage each contributed to undermining his defense that he came to be arrested first the government lowered its burden to prove the intent element by misstating the law in its rebuttal closing our argument and the district court failed to neutralize the harm caused by the government's incorrect statement and second the district court erred by refusing to give the missing witness instruction requested by mr cordova by using the wrong legal rule as the first it's your contention that they misstated the law of the substantive law of what it meant to enter the united states or is it that they left out the intent part here is that they left out the intent but they were talking about that i mean they were another words the law has two pieces you have to intend to and what you have to intend to do  that what they were talking about was what did you have to intend to do respectfully that's in correct your honor the very first thing the government said was the jury instruction doesn't say come into the country in order to go live at large that's the intent element in order but then the second sentence they did a bait and switch and they said it is coming into the country and you are at large so they started with the intent and then the immediately removed the intent and so that's where we can see that that that they were misstating the law as to this offense and even as we go to the sidebar the very first question the judge asked the government was what is your theory and the government's very first answer was it's my understanding that you are at large the moment you're inside the country if the government was trying to let's say explain further the intent element or as they argued in their briefs response to the defen closing argument they would have said it doesn't say in order to go live it large it says in order to be at large but they would have kept the in order that in fact i want them to be seen rightly your honor i don't believe so i think that because the explain the difference between live at large and be at large but your honor what they did was you harm with the second part of the car i mean do you think that they were wrong in saying that if you are ten feet on the other side of th here was inaccurate because it is saying again and i think that this point is very important it took the in order to call it a large the in order is the intent element and i had read it i asked you whether their statement leaving it of what their statement with regard to the substantive piece of what it is you have to intend to do was that inaccurate i understand you think that they left off the intent and that was misleading but wasn't accurate as to what it means to except this little pledge that i noticed but it doesn't seem to be matter here you know on the surveillance yes of course we're not at that point we hadn't gotten into the details of the official front and what that means but what i would note is a few things first of all mr cordova took the stand and he admitted on the stand every element including that he was at large he admitted that he crossed he admitted that he crossed with a group he admitted that he was walking inside the united states and so the problem with what the government did here was it basically gave itself almost a directed verdict it got up and said it's not in order to go live it large it is you are at large whether for ten feet and so on and so what it did was it took what mr cordova testified to and gave itself a verdict of guilty there could be no other verdict if he was at large at ten feet and his intense didn't matter and i think it's important that the district court saw the problem i think it's important that the district court had a nine minute sidebar to talk about this i think it's even more important that this court has noted very recently and to steal mendez how confusing this aspect of the law is this court said that the jury instruction as to this is not a model of clarity that it is confusing and so what we're talking about is the only contested on it being spoken about in rebuttal and you know like i said it was an element that he had not an element but it  fact that he admitted that he was at large once he was inside the country it's a confusing element that this court has recognized as confusing and then ultimately the district court never ruled on the objection neither before or after the sidebar the district court did not get a curative the district court did not turn the jury back to the instructions already stated and so i think all of those do go together to say that that this was this is a problem i mean that this was really going to weigh the scales very far in favor of the for attempt that there needs to be a specific intent to be that to come from a why is this intent he actually was there that's why i couldn't understand what why is he being charged with attempt to enter when they actually found him there the problem being because it doesn't need to found him for some reason or because i'm just wondering why or even here i know we are but i'm just curious ya know it's hard for me to speculate as to why the government makes the attention for both that's correct why the change occurs when he was charged us when he was charged that's the way it was charge your honor but i do think the court's point turns back around to another interesting aspect of this which is almost brings into question issues of double jeopardy if the court if the government can get up in its rebuttal provide a closing argument essentially argue that guilt is based on the same as the found in elements and then later if they don't win that way try to do a found  where mr cordova was charged with attempt and he presented a full defense based on the attempted charge and so i really don't think it can be really understated how important the statement was based on its timing the  point of the law that it was focusing on which like we said was confusing appointments or court over took the stand and admitted and so on i see that i have two minutes left i would like loser to reserve time for about oh thank  again you know i was more crazy for the united states all due respect i think defense is putting it making a mountain out of a molehill vis a whole claim comes down to force three sentences on excerpts of record three twenty the first thing that the prosecutor is arguing in rebuttal is in response to two errors by defense counsel that excerpt of record three zero nine an excerpt of record three nineteen where she uses the  at large when he says in this first sentence let's be clear the jury instruction doesn't say come into the country in order to go live it large period that is one hundred percent accurate when he says in his next sentence that isn't what the law is with regards to this that's also one hundred percent accurate his next statement isn't even a complete sentence he says it is coming into the country and you are at large and whether or not he is at large for ten feet on the other side of that fence one hundred feet a quarter mile or a half mile objection they go to side bar it's side bar the judge case is short he saw that this could be confusing language he wanted to head this off at the pass he fleshes out with the prosecutor where  going with that language there wasn't a lot there wasn't any talk about that in the initial summation and then the prosecutor says well it was in response to those two statements it living at large and then there's a lot of back and forth all outside the presence of the jury about what this intent element requires in there and they're after even the defense i think they admit in their own brief it on page twenty four of the opening brief when the government res the only thing i sometimes do you know there might be concern years ago when this whole fischler strait really kind of blew up sometimes there was ambiguity about whether the alien was under continual surveillance when you've got the scope operator and you know that this was a mile from the border because i was right so maybe that's the only thing that i can infer exactly but you know be that as of me again i mean i appreciate  fense counsel's passion or advocacy but i would simply say this isn't misconduct it's not a misstatement of the law in this court gives great deference to the district judge who's on the scene who seen the entire trial at the end of argument when the defense move for a mistrial again to page three hundred thirty three of excerpts of record judge says he says i don't think there is any misconduct i don't think that a cure of instruction is necessary the only concern that i had was not there was going to be an argument that would either be mishandled or an accurate so that being said i mean it wasn't an actual argument to begin with the supreme court and the donnelly versus de christof or says you shouldn't assume that a jury gives the worst possible inference to ambiguous remarks when there's a plethora of other interpretations and judge has did exactly what he's supposed to he acted as a gatekeeper he saw an issue and he took care of it so is forest other than that i don't really know what else to say about his intent defense counsel's right that was the sole issue whether he intended to come back to get caught or not both sides argued that to the hilt and  have maybe one thing your honor there is an allegation again you know i didn't write this brief and i'm preparing on like well they you know she says we repeat we requested the identities of these people for months in the government only gave it two  trial prior to trial i looked through the record every single page there was never a request for that her excerpts are two pages fifty want to fifty two excerpts of record that was when after the close of evidence the defen raised the issue of the missing witness for the very first time and when you look at judge hayes was understandably frustrated and when he says well this is the first i'm hearing about this usually parties bring this up before trial if you would have let me know there was an issue i would have held a hearing if there would have been some kind of issue i would have given you the information you want but there was none of that in the defense and we didn't know what the defense was that it would be that he's coming back to get treatment for his disease until trial there he defended himself testified that i didn't tell any of the other people who i was with what my plan was there evidence was that it happened at night past eight pm l in the wilderness there's no lights this is what i'm getting at is not only was there not a repeated request for these witness identities under that second prong of lee although carmen's to protest for missing witness it was entirely speculative that these witnesses could have had anything in school potoroo and even delcarmen says the government is free to deport witnesses were there is no basis for believing that they have exculpatory evidence and i appreciate i know my point in bringing up you were kind enough to give me an opportunity to put that in the re i think your honor i'll start with the missing witness instruction a few things mr cordova told the agents the moment that they found him in the field in the hills that he was a j p positive and that was in the record it was in the record that they gave him a mask because of his illness that they searched for the few medications he had with him they couldn't find them in the hills and so the idea that this was a big surprise everybody is not true it was known from the beginning of the case that he was hiv positive quest the requests that were cited in the requests for the jury instruction word by e mail to the prosecutor the first prosecutor who was on the on the case asking for the identities of the witnesses saying that we could as soon as soon as the case was indicted it and was going towards trial that is when the requests for the identities started when we got those identities we realized it was a chance for us i'm sorry how long after you asked did you get them two weeks before trial and  you asked six or seven months i believe he was indicted in july and then his trial went forward i believe the following february but tell me if i'm wrong i guess i'm inclined to fall you there is we have to have the identities to subpoena them and so the problem that was faced by the defense was it was impossible to even investigate these individuals to find out what their testimony would be because the government had complete possession of their identit anybody any indication that you might want to call these people other than requesting the identities your honor no but i think that it was obvious from the way the case was going that the reason we were asking for those identities was so that we could interview those individuals so i think the request themselves is the indication in trial we ask for the identities of agents percipient witnesses different things so we can interview those individuals and find out if they could be helpful to the case i can show the only thing these people could few things including that your honor this case was a credibility battle between you and that would be difficult because it was dark but leave that hour ahead this case was a credibility battle between the arresting agent and mr cordova all right the question is whether there was anything they would have observed or known that was with that was being disputed that kind of matter right and every point of corroboration to mr cordova's testimony would have been a step in his favor in this case because it was a credibility battle but that the government it wasn't clear to me from the opening for a fight it seemed pretty clear by the end of the briefing that there really wasn't a dispute about whether he was the guy in the middle of t d a few things first of all the government did not except that he was the one in the trail they said we can't tell who was where i have no idea so we'll just move forward and talk about the person in the trail and what we observed so even if the person arrested the closest to him which was in very very close could say yes he was the one in the path that would have been important and if each other individual could identify where they would have were arrested it would have been well we're not sure but we'll accept it for the sake of argument it would have been no he's right he went and he sat down in a path yes the person closest might have been able to testify as to sitting or lying down he did not tell them his specific diagnosis he did however comment on the symptoms he was experiencing and those individuals that i'm sorry and i am sure that nobody was jelling as well but it was even particularly doubting whether he was going to united states to get treatment or question is how was he doing that correct but i think if he had exhibited the symptoms he was saying he exhibited it would have lent credibility to the idea that he didn't want to wait and wander into america he wanted to be arrested is that all the speculative in the key is you have to show that the testimony would have been favorable to the government and you don't know what they w there's a few responses your honor first of all focusing on the speculative or focusing i'm sorry on the the second test the proper test for mature witness instruction i just need to show a reasonable inference mr cordova needs to show a reasonable inference he doesn't to prove up the facts and so i think in the light of everything we were able to retrieve from what we had we were able to show that reasonable inference but even aside from that the problem with the words that the judge used as it was completely tied to what the government knew before it deported these individuals which means it was completely tied to the only test he ever mentioned which is the test for granting the dismissal and so he never even acknowledge that there was a separate and second test and so i think under this court's decision hinks