xerox machine to enhance the fingerprint and photo after the first trial ended in a hung jury the prosecutor took the key piece of evidence exhibit five which is it for ninety and he admitted that he basically use xerox machine to enhance a fingerprint that was barely visible by making it darker and lightened a photograph in which the person's face had previously been almost blacked out and this is a problem this violated the federal rules of evidence and i want to go directly to why we think that isn't this something in a sense that happens a lot let's say you have you know the fine print in a contract and  it's you know fuzzy and gray and it's blown up on a giant white board for the jury to read i mean this is kind of standard fare is it not to enlarge and claire clear up you know difficult to read or difficult to look at exhibits i think that the line your honor is between enlarging and enhancing we're not saying that someone can't enlarge an exhibit and people do that all the time that's not the problem we're also not saying that someone other than the lawyer can enhance a document for instance you know they can make it clear and experts do that all the time if this was a case where a third party other than the prosecutor had enhanced relevant here the first one is the fact that is this an accurate reproduction and the question is if it is actually being enhanced is it in fact an accurate reproduction of the original so that's the first one the other one is was this unfair to admit and the problem that we have here is this that this was unfair to admit because we had no way of cross examining the person who did this and hansen and the reason that this is a bigger problem than just this case and the reason why it's not necessarily restricted to prosecutors or defense attorneys or it could be civil attorneys as well is as technology advances it's going to become more and more tempting for lawyers to use technology to say well you know that that's a little bit fuzzy let me just photoshop this let me just clean it up a little let me just you know use that the technology that that is getting better every day to essentially change the nature of any except here's what i'm looking for looking for was some notes about your comment that it was only the lawyer who set the second trial i think there was the custodian of the file who was cross examined or w examined about whether this was remained an accurate depiction or whether this was an accurate rendition so it wasn't just the lawyer there was a foundation laid for it your honor and if i would could i would point to e r sixty seven and there for instance what i believe this is i'm not sure this is the expert or if it's a focus judean but basically the prosecutor asked the person does this appear to have been altered in any way other than the fact that it's blown up in the person says no and the problem is that the person being cross examined there didn't have personal knowledge of the enhancement they had done it themselves and was there person testify that the enlargement was a fair and accurate depiction of the photograph and that have not altered that that is correct the problem is that we didn't have the ability to for let's say that it was an accurate reproduction let's let's assume that  the problem is that we still didn't have the ability to cross examine the person who had enhanced the photo to say it took us to object on that ground that we had an object that you want of the custodian of the person you wanted that you want to be able to cross examine the person who made th not you are not like you had a chance to cross examine the person who said it was fair and accurate and i've you know compared them so you had that opportunity and if you didn't ask to question someone else why wouldn't that be playing her review you that he had put you in a very awkward position or she had put you in a very awkward position by doing the copying themselves we could have made yes exactly that that i think it would have been better that i mean i feel i feel like you're sort of you're sort of stuck with claiming that this isn't the best evidence without being able to say we didn't get that we didn't get to get to cross examine the custodians i i would contend your honor that we made it sufficient objection we said look this is not an accurate reproduction we should be able to you know this this should come in i think that that was sufficient the court may disagree but but we do think that that was sufficient so really what this gets to is the question of should a person who is a lawyer be able to do the enhancement and frankly they shouldn't because there just seems like such a totally different argument than you made in the district corner i mean it's just it just seems like it's so different in kind that that i have difficulty seeing without coming out to the district court's attention i notice it's an important it's an important point surely but it seems a little bit late nothing remarkable about that but the districts that i think i've had three documents before and sometimes scanners or printers have a lever on them that allows you to darken the thing in the images that are i think one of the other problems here your honor is that basically then the prosecutor in his questioning never it was able to or never drew out that this was ever enhanced and we didn't have the ability to do that i understand that oh it was very clear that the district court knew that it was enhanced and  but the jury didn't well but the district court did say this is real i said it looks like a misrepresentation it looks like a completely different thing to print and the court said sounds like wonderful fodder for cross examination and we couldn't to no and that's exactly what their been said no it doesn't beribboned says we don't have to it doesn't say we can't you know i'd like you to address my question knowing that you disagree with my interpretation of the case  knowing what the record is now why i was simply submissive all why was it mr beers is testimony admissable right i'm actually not going to argue that your honor i fundamentally disagree with your honor over that interpretation of beribboned because what the government's that you're here entitle to do that but if we were to disagree with you and right now i don't know what my colleagues think because we don't pretty pretty confer but just or are you going to argue are you going to respond to the question of what we should decide if we are the ones to decide it your honor what i would say is that the idea found in the first trial that he was the errors made in the second trial when the when the district court says that that's a jury question i would i would disagree that a finding was made in the first trial even if it was made and even if it could carry whether we can decide it and it looks to me as though the district court has already said i've seen mr beers before counsel you've seen mr beers before and he has testified so many times in court there's no question  second trial the district court inexplicably takes a very different approach that's right so i think it does come down to you know we certainly wouldn't object if the court is going to remain and we think that the remained should be for a new trial i new little bit of time that i have left i'm going to go directly to the pretrial motion to dismiss there were three errors here basically first of all the agent kelley essentially didn't he admitted eight times that he only summarized the information that by regulation he was supposed to read in its entirety to the person who was being expedited removal there was also this whole issue of at this point in terms of withdrawal relief we have absolutely no idea what standard is being used when you have a person who is being considered for withdrawal they used to use the six factors in the inspectors field manual then numerous sources said that's no longer used the without a standard this court isn't able to decide prejudice and then the final thing i'll just say your honor is the right to counsel issue an expedited removal and this is been argued before and i would just say in terms of setting aside the statutory arguments for a moment setting aside the a p a arguments if we look at this under a matthew eldridge analysis i have a question about your claim i thought his claim was that he was not a vine just that he right that would come from page forty three of the opening brief which is different than whether he could have counsel whether in other words he wasn't the ninth counsel he's asking for advice am i right about custodian and expert beares testify that these were accurate reproduction appear at your thirty two and thirty three sixty seven through sixty nine and seventy eight through seventy exhibits similar to these one case from the district in minnesota said that changes to brightness or so on remarkable that they couldn't possibly affect the accuracy of the exhibits but counsel raises a really good question about about  vancing technology with things like photoshop because you could start now start changing coloration and then put it into black and white and end up with really different shading and it seems to me that there is that there is a teacher there so to the extent that danger exists your honor i don't think it exists in this case and the reason i say that is because i think was added to or taken away you do we do we know that that whoever copied these was that you or was it somebody else no your honor that was  know that trial counsel did this and that didn't do anything other than make adjustments on a regular copy machine i believe that's reflected at pages eleven through fourteen of the excerpts of record where he the prosecutor essentially  then i think in a situation like the one we have here where there's nothing added to or removed from the image in the court it's properly found that in a preliminary determination under one of four then i think it's perfectly appropriate for a witness to testify that it's an accurate reproduction and a number of the cases as well if those specific argument him been made would be i mean you presumably your office would have had the opportunity to have someone else  that copying individual could have been questioned i mean that would be it's possible you're hostile i suppose but i don't know that it's necessary in this circumstance so to give some examples  gordon case that we cite from the eighth circuit the fornier case we cited from the southern district of new york cop case we cite from the southern district of ohio all involved exhibits that were created by someone other than the individual who testify i'd and the court nevertheless found that those exhibits were accurate reproductions because there were experts who could testify to that effect now certainly you can imagine extreme examples where the changes are so extreme that the well let me let me let me take you there because if you said just a bit ago that you'd only change the brightness setting that my work on the photograph how does that how does that work on the on the fingerprint i've got anything at all in the copy this been provided to me on the are there isn't anything i could do with that that would get us anything yes your honor so there's actually a problem with the scan of the p d f so you can see the photograph or the fingerprint on the original so it was both enlarged and then and then  or that's correct but i guess the point i'm making is on exhibit five itself are copies not just good as the one that was in court is right and i do have that copy if the court would like to take a look at it but you it is a fainter fingerprint but you can see the fingerprint on  five which is the sort of a file document so so again it's not a matter of a blank box turning into a fingerprint it's a matter of a light fingerprint turning into a somewhat darker woman it isn't an enlargement then darkening of the fingerprint something that i would be handled by an expert in fingerprinting as opposed to the u s attorney i don't think so your honor again this is a process that number of course we've cited that it does not affect the accuracy of the image at all if something was there that an expert might be able to say that but i wouldn't say i know enough about fingerprinting to know whether making it darker or making it bigger makes it harder to read or easier to read or easier to compare and that's something an expert on to do well and again i might agree if this were something other than just hitting the copy button you know if something has been added to or taken away from the i guess the dark i thought you dark issue there was no plane error in meeting the ari and exercising to gate keeping function here i do agree under that under bare in the court has the option to consider whether the testimony was  certainly the government whether ready to concede that the district court didn't exercise its proper function no you are you think that you think that a turning that over to the jury was proper no i simply don't think that that's what happened here certainly that's not what happened on agree they are poorly worded and taken in a vacuum they may be problematic but directly after those comments the courts that is that it is for the jury to decide how much weight to give those comments based on the reasons for them and what the court appears that's that's pretty that's pretty close to what you would say with any witness right well it but i think the reason the court is saying that is because it wants to avoid the impression that expert testimony but it's up to you to decide whether the witness by virtue of his experience or training i qualified and i agree in a vacuum that's a problematic comment but because of what came after and again i also think you have to look at what came before we have two trials two extensive what dyer's two times where the court explicitly over rules of the actions to admitting the expert testimony and at least one finding of reliability on page two twenty of the excerpts of record where the court says i find that there is a basis for mr beers to offer an essentially ignore everything that came before the first trial that there is no reason to do that and certainly not on plane air review this court has time and again emphasized that courts have extensive discretion when fashion why is this plane error if you on this one because there was no objection to the gate keeping function and the court has made clear that issues of admissability and gate keeping are not the same so because there was no objection into the keeping function planar review is appropriate and then as i alluded to earlier at steps three and four of planar review it is certainly appropriate to consider whether the testimony was admissible that's exactly what this court did and it's a young inquiry but certainly on plane air review where you have steps three and four to look at it did not undermine probably a substantial rights or the fairness and integrity of the judicial proceedings to admit obviously admis testimony so with the remaining time if there are no other questions i'll turn to the due process issues and i'd like to start with the prejudice issue solely because it sweeps across all of the  process issues and it all circle back to the others if i have time this court held in barabbas alvarado that if there was any question as to what standards were applied and it was disputed in that case the question was was the field manual applied or was a b i a standard for withdraw relief applied the court would simply hold that relief was not plausible if under the field manual the claim would still fail so even if there was a question here as to what was applied under this court's finding precedent the appropriate response is to apply the field manual again we don't think that's the case we think the record shows that the field manual was applied pages thirty eight three forty three removed three prior times he intentionally violated the law as we know that because he didn't come to report of injury he came through the mountains and was found twelve miles inland he couldn't even easily overcome those grounds of inadmissibility because he had that aggravated felony he's relatively young he's thirty years old and he's healthy again he was healthy enough to come through the mountains and no humanitarian factors favor him and that's because his entire  family with the exception of a brother and uncle are now his wife and children are there his mother's there are three other siblings are there and in addition he has that aggravated felony for an alien smuggling and has admitted that he smuggled alien successfully six times before that for a total of thirty to thirty six aliens so there are no factors suggesting that it would be plausible that he would be granted withdraw all over his application for admission here so there was no prejudice now if i can hit on the actual due process issues beginning with the notice an opportunity to respond agent kelly testified and the district court found in these findings are undisputed at footnote eight page thirty seven of the opening brief concedes these findings that agent kelley covered all of the material in the four might sixty seven and he left quote no doubt as to the understanding kaba had of that material so for purposes of notice and an opportunity to respond got all of the notice that he was entitled to for due process purposes with regard to the right to an attorney the opinion is that in that case the proper standard for analyzing the due process right was not waived support then too deferential in applying that standard at all we've suggested that the weiss test is the proper test to apply because we're dealing with plenary powers of congress in fact the supreme court has said that there is no possible area over which congress exercises more power than immigration and court applies matthews the old ridge i think all of the factors weigh against recognizing the right to counsel here the private interest is weak when we're dealing with individuals who have only been here for less than fourteen days the risk of erroneous deprivation of low because the only inquiry is whether the alien has a valid documents allowing them to remain within the country and if they indicate that they've ever had any sort of status that they're a refugee then they get extra process that's outlined in eight c f r two thirty five three before through seven they get extra process so the risk of erroneous deprivation is low here and then finally the government interest  just to respond directly to the matthews the eldridge if this court decides that it would like to wade into the matthews v eldridge i think that this is actually a really good time to ask for more briefing and i'll tell you why since briefing concluded in this case there's been an explosion of new entries on our southern border we're dealing with this every day it's mostly silent seekers and there's a huge interest on their behalf that really changes the nature of the first inquiry under the  why because your honor there's there's a numerous statutory bases a p bases that we've laid out in our in our briefing the other thing i would say your honor is i think it's a little bit incorrect what opposing coun said when you have an asylum seeker who crosses the border they are actually put into expedited removal and they're given an expedited removal order and they are questioned and answers that come out during that questioning then can be used against them in their asylum case is a huge very important interest so i would just say if the court wants to wade into this i think we're in a different posture now and it would behoove the court to ask for updated briefing on this but i'll move on very briefly to another point in terms of the affected the outcome of the trial and i saw the quote that your honor was referring to but when i read there ben they're going to me is absolutely clear that the answer is if there is a abdication of this this dawber duty that basically you have to look at whether the jury would have reached the same verdict even if the evidence had not been admitted thank you counsel thank you on their case just argued is submitted and we appreciate both of your comments they were very helpful on who you are a jerk