had a duty to dispel any difficulties that they had to clear those away with concrete accuracy and that's from the united states supreme court case that one block so the united states supreme court has told us that when a judge responds to a jury question the judge must eliminate confusion with concrete accuracy and the opposite happened here instead of making explicit  and concrete why the fish for restraint was relevant the court sent a further confuse the jury the only reason that official restraint was relevant was to mr christie moment as his inten this court has made clear that if your intent in when you cross the border is to go to jail to have a warm bed in jail you are not guilty of the specific intent crime of attempted  restraint is that an issue in every case in every reentry case so every time you have a reentry case right at the border the government needs to decide whether or not they're going to file it as an attempt or  restraint free of official is restraint an element of the crime it is i mean the government must show that their intent was to enter and be able to move about freely you know in the populous where you define his intent right that we evaluate his intent correct but it's also just one of the factors you could considered in on the element of the conscious desire to enter the united states and then go to l a to work or was he isn't he's conscious desire to enter to get caught because in this case he was trying to get away from these smugglers who had shown total disregard for his safety was a little bit confused because he had been rowing against me but then the first piece of paper they gave me was exactly what i was asking for and so i said this is great i don't object i thought he was giving us two copies so that i  there's a huge huge problems with the way he breaks it down first he talks about what exactly did you object to that and that started to me and i just had to chew over arching things constant surveillance which has absolutely no place when it's an attempted entry and his awareness for george burns said but did anything and need not be aware that he's under surveillance which isn't a rational instruction to give a jury when their focus is supposed to be on his intent so of course he has to be you know it's and then it just keeps repeating that you need constant surveillance constant surveillance constant surveillance which is taking the jury on the on the left hand turn when they should be focusing on whether or not mr custom and his had the conscious desire to enter free from facial restraint when he was testifying and his cousin testified that their intent was to get caught because they would be much safer with border patrol than they would be with change when you have a founding case or an attempted case and i i kept trying to say it does make a difference because the focus is supposed to be conscious desire to enter free from official restraint but i was shut down  i i give what i think would be the proper instruction and i think it's in two places and there are three so the court could just say in the attempted entry context official restraining is relevant only to the defendant's conscious desire and in that context the government must prove that the defendant had the conscious desire to go at large within the united states without being captured by law enforcement that is to find the defendant guilty you must find that the defendant had the conscious desire to avoid apprehension when he climbed over the border fence a little wordy but the point is is that if the the definition should focus on intent correct this is my problem  approach though the jury didn't ask you know for some direct clarification of intent they just want to know what was meant by official restraint correct and this why is this error ok so i mean because it's not it doesn't purport to define intent it just it defines an official restraint and if it's all that's a factor to be considered in you know determining the defendant's intent which may be used to correctly that you know you want to go go by just the id of free of you know government restraint right so this you we have here it's not just that it's a god jury instruction in in  a vacuum but under united under falling by forces united states what we have is a response to a jury question and so that supposed to be crystal clear and so the jury hears side why what is not clear because it's not to define an intent because that was not the question it's only defiant official restraint now why isn't it clear it judge going to say well this is an attempt case so forget about official restraint could have said that right there would have been clear but no but but my point is as clear as this but my point is the question was not you know you know would you please define intent for us in this kind of case that would not the question w the court benjamin hawley for the united states the jury asked reasonably what does free from official restraint mean the core answered that question with how was it how did they even come up how it was the original instruction that was given so the original instruction there are five elements or five  stops and any which part does this occur so this was the sixth one that was added at offenses request in this case that the defendant the government had to prove the defendant intended to enter free from official restraint and that's the only time that phrase if the defendant intent enters with the intent to go into official restraint then he would be not guilty so that we're just telling the jury the government has to prove that he intended otherwise and that that the defense contention in this case is given that instruction and then they're back to liberate and they send out a note well what does official restraint mean exactly because that's the only time that phrase is used in that original set of instructions so they actually ask to question not this is this is what you what the judge  official restraint particularly in terms of surveillance so if the evidence was that mr castillo mendez entered and was actually surveilled the entire time which is not the evidence but that if that were the evidence that would be at least indicative or some evidence that that was his intent vehicle off the one side and he there's a plane that he testified was overhead he assumed the border patrol that is even if he doesn't go straight to that border patrol vehicle he can assume he's being watched and therefore didn't have to go straight to border patrol vehicle and would still be not guilty because contention that this is correct definition of show restraint for purposes of an attempt case yes because the definition does not change whether one intends to be free from a stranger or actually i and importantly that the jury asked two questions one was what defined as what does it mean and two about intent when does this incident occur so the judges answer the court's answer to those answer both of those questions the first one surely gets the definition is the second one that again focuses the jury back on this is what the government has to prove they have to prove the intent so that first answer that first instruction was simply defining terms the second was again focusing on intent when made by a second so instruction be that when they ask you the and the second to last since he says additionally the alien must lack the freedom to go at large and mix with the population but the alien need not be aware of this surveillance and that's who is under this kind of sustained surveillance is not enter the united states free of official restraint i mean the whole thing i just found the thing confusing well i think it's because it's not at all so if you give just that second answer judge the one of the defense team perfect where such talks about going at large mixing with population is not at all intuitive that being under surveillance is alone sufficient to prevent you from doing that that is someone is not contained in a port of entry is not actually more to patrol custody this court has determined that surveillance is sufficient to prevent them from going in another self well i think the reason i also find this instruction kind of confusing begs the reason is because it doesn't directly apply to an attempt case it meaning you know this long a definition of official restraint it's not really a relevant issue in the temp case right it is in the sense that whether one was under fiscal restraint is indicative of their intent so  think that's what i mean if you were not concerned with whether you know whether an alien was under official restraint as you would be found in the case were only concerned with the intent right right but the way one of the ways we can know a lot of precise example of what it all those don't matter in this case except to the extent they help to to discern the defendant's intent well i would agree with that but the was his intent and there's no reason to believe that the jury lost sight of that based on the stuff addition that they suddenly started debating whether he actually was under official restraint when all the instructions all of the argument the supplemental argument during deliberation all talk about his intent as to that second answer that second we know someone's intent we look at their actions and that's how they tied them together the same way i'm trying to the good the defense then focused on it's about the only reason we're talking about official restraint is because we care about intent and that's and then focused entirely on him to the way she i mean you know when you read her argument you didn't did you argue i did not know it was it the argument that the prosecutor makes it seems to be tailored for to a founding case so what i should get when she after the judge gives the instruction she stands up and gives this argument it seems like it's more related she says they didn't you know they were talked about constant surveillance and yeah right and so my response there is that that she's talking about the definition of official restraint then goes to the intent is so there was a period of time where there was no official restraint in this case right which sounds like a found in case yes except at the end when she's kind of together and is saying so how do we know what somebody's intent is we look at he actions before he jumped a fence after jump the fence those are all indicative of his intent which is again the second part she summarized it well in saying that this is what ultimately matters we have to figure out what did he intend to be intend to go as we say and get it free at large in the country or did he intend to go into border patrol custody and so that that summarize it but and the second reason that this is harmless besides what i just indicated is the evidence was otherwise overwhelming about the amount of payments that these smugglers would only get paid if he successfully made it in he had twice and these large groups of rocks did not seek out we're told for going out that first vehicle he went to never mention fleeing from smugglers either on the scene or back at the station the first quite enough money years of feeling but he did the problem was he did not go to he said there was more appropriate all right there he didn't go to that even once he for some reason he didn't want to go there if he thought the smugglers could get to him over the fence somehow he was otherwise avoiding  aware of surveillance that's not true because if he's aware of surveillance then that shows he intended to get caught and you have to want to get caught oh i thought that was he doesn't have to be aware as to when he doesn't have to be aware of it but what you're saying  factor in in your favor yes it shows yeah and so that's why the yes it shows that he would he wants to get caught and so i think the really this case in closing this case isn't just your first impression this court has never really had the cases the jury's out for like five minutes and we wait out in the hallway for them to come back with a guilty they deliberated for quite a while they had a question in this case they got it they were folk and then in there was testimony from the defendant and from his cousin that they had they both testified and said that they had the intent to get caught and that and they got the results as me that they were being watched by the smugglers who had threatened  they didn't go immediately to the to the border patrol vehicle that was right there and then even know if anyone was in it but they went directly north and as soon as border patrol came up that mr castillo said you got us and admitted i'm here without papers you got and the fact that he didn't say anything further and and invoked to his right to remain silent doesn't show that he had anything other than the intent to get caught if you didn't cancel the matter submitted