after agents deliberately used and invalid and confusing miranda vital third district court erred in permitting the government to introduce evidence of a personal use him out of a small amount of marijuana to prove knowledge of of a distributable quantity of methods that i mean that was in the car and finally the district court erred in finding that the government's dual purpose checkpoint did not violate the fourth and then let me ask you a quick question and firstly i would assume that if your client done which i'm sure you wish volunteer who after getting a miranda warning is doesn't say anything you want to be able to introduce that in this case as evidence that he was guilty absolutely and i think that this is a very easy case because this guy's not a codefendant he's not even a witness he's gone the government released him and the thing that irrationality underpinning no one is getting to the fundamental point either either it's evidence of guilt  the passenger as i argue to the district court here for the cycle he starts the full panoply of his constitutional rights and when we just oppose that with the behavior of my client on these unique facts the passengers assertion of his constitutional rights is pro and actually the supreme court commented on that in a case called wainwright vs greenfield where they stated that start looking forward here the point of the dual holding is that it is fundamentally unfair to promise an arrest of person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony that's weighing right versus greenfield a supreme court case one hundred eighty six and that's  that assertion of constitutional rights can be probed for example the government's immigration judges use immigration defendant's assertion that this fosters all rights they can draw a negative inference from that they do that on a daily basis things to that first of all beginning with the as like as i can see before maybe the passenger invoking in a vacuum doesn't mean anything but when we marry that with what he did at this secondary object into the search that has compound in this was the point that i really wanted to make in closing argument is that the passenger is sophisticate we can infer from the way the passenger behaves he said he's a sophisticated smuggler and he knows which of the typical juror would not but the passenger knows that if he's a passenger in a drug smuggling case and he invokes he will likely be released that is a high degree of sophistication and it also tends to show that he's getting a free ride for his drugs that if he's in the passenger he's sitting on top of his product he gets a free ride he doesn't have to ask the dr for permission to let him take to put the meth in the car he has an opportunity to put the put the spare tire on the car he has a couple of different opportunities and he doesn't have to pay the passenger to drive it he knows that they get stuff which is exactly what happened if he votes he's gone and leaves mr murtha open the back and that's the argument that i want to make to the jury so those those be my two points on that that there's compound itself a tory evidence and f there to twelve sixty four and this court said one per hardy's assertion of his constitutional right to not obliterate another party's right to a fair proceeding not allowing the negative inference to be drawn poses substantial problems for an adverse party who is deprived of a source of information that might conceivably be determinative in the search for the truth i think that there's this issue really and i mean tried this case and this is really speaks to the heart of what it means to get a fair trial it's the government's burden to prove their case it's the defendant's right to elicit testimony in facts and argue those facts that move the ball for him that advance his theory of the case and even the even the hail court which the  government mentions in their brief the hill court says that this type of evidence would have an impact on the jury and that is that is why mr murtha was deprived of his fundamental right to present a defense and it's under it's not as if we're trying to exclude something that did happen we're simply trying to give the jury the complete picture and withdraws from michelle move on to the miranda issue what we have here is pretty straightforward the evidence before the district court was that  was at least fifty percent likely that this agent before giving miranda warnings says to the suspect this is your last opportunity to help yourself i'll tell the prosecutor that you cooperated he could tell he might tell the judge and then that would result in a lower sentence but it was not a question was it was lester only or just it is via opportunity is your opportunity and i thought there was some discussion about what exactly you know and i don't have the year before me evidence if you will is a much sure and i know you're going to go to the point of the shifting burden but it did release was coming on the state of the evidence there was nothing to suggest that it was given other than a statement that sometimes i do sometimes i don't and then the officers say i do it for people because my client is a migrant farm worker who doesn't speak english so it's more likely that they gave him this preamble to his or her sometime after by would thank you that's true visa b the defendant who's who is charging that the defendant silence if it's but counsel is posing a different issue and that is the other individual has not been charged is under no it was not on trial so the question is we do allow inferences in various of the situations with an immigration civil cases that are so why in this situation should the jury not be told especially after having the evidence come in on the fourth amendment assertion by the by the other individual and by the way also when given miranda rights of this person refused to respond if it's not but the point of the prosecutors were trying to get it in and now you're telling us well now if that says no probative value isn't that the government taking two different positions depending on whose ox is being gored i don't believe so you know because i mean i don't know why other prosecutors in third party culpability cases it's abuse of discretion so even if you were three authors sitting in this case might have a different view that's not the standard you apply the rule for three terminations of the district quarter given considerable deference that's the if this were air is it harmless because the fact that you want that the defense wanted the jury got all of that is that the other party objected and was trying to prevent the search and isn't that really what the defense wanted and so even if we could say there was some abuse my point was whether even if there were some abused in not letting in the silence doesn't that cover what the proposed use would have been absolutely and  ample other evidence in primary they got in the fact that even through the inspector it was directing questions to the driver the passenger answered most of them they got in the fact that secondary that the passenger vociferous lee objected not only to the search but to his own pat were able to argue fully in what was the one thing they didn't get obeid the way he invoked his rights that's all they could have said about an indication by definition means of absence of communication there's nothing more they could have gotten from that specifically identified that evidence is the most damaging evidence to this defense case where he claims he was in yuma arizona on his way to salinas in the north central valley to go to work the prosecutor called not only  president of the company that he claimed he worked for altie but to foreman to say they have based in arizona they have no business in salinas they never even go up there so that is a pretty damaging lie that was given in his interview so i think that already court was well aware of what the burden was that the government has the burden of proving you know intelligent waiver and i don't think there's anything in the record which indicates that that wasn't complied with but a couple other points i want to make i find it's most interesting this fact wasn't even brought up circumstances and this is just one circumstance i don't know how this court can stand in a position to overrule that in the district court on this issue and i see that my time is up to three of the questions otherwise wilson thank you counsel arizona the salinas california it's like seven or eight hour drive this is that's not what he said it was in the state the circumstances of my client's statement the government chose not to videotape not to audiotape not to have my client write his own statement not even have my client signed the statement that is attributed to him the agent that took the statement was not fluent he considered himself proficiency spanish not fluent and finally the agent did not include the stuff about commuting to salinas in his report he was  court has can system we recognize that improper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the due process clause this is such a unique and proper circumstance where the should have been put before the jury i would point out that with respect to the third issue we haven't discussed that the government got to introduce evidence that my client had a small personal use amount of marijuana on hand in some some theory that that that  that goes the way you can argue it either way but but this involves that doesn't go away it just seems unfair to me that just for three door only swung one way with the but the invoke was in there also a concern that the prejudic hundred five that the authority granted a trial court to exclude evidence that is under the prejudice we've seen with of confusing or misleading must yield to a defendant's constitutional right to present all relevant evidence that's what i didn't get to do here that's what mr murtha was prejudice i'm running out of time just briefly i thought the docu drama that that were president johnson was talking to his speechwriter before he had to give a big speech and he said to his speechwriter put the music to that invoke was my music for this closing argument that's what should have been before the jury that's what would have given this rumor of a fair trial thank you lisa miller thank you both for your arguments