mistrial in this the record shows the district court acted abruptly and without a careful exercise of discretion and as a result its decision to declare a mistrial was based on based on a mis understanding of specifically notes that parties are able to supplement their jury instructions at any point during the trial now mr merrill abbado's defense counsel explained that at the point that it filed these the bench instruction it was not sure whether or not they were going to actually pursue and request these instruction because of course it depends on what sort of facts were used at trial but the real question that this court must decide in this is that with these meeting a close call is that what you're asking them to do no your honor so a few points st in terms of the deference special deference is only reserved or cases where the trial court determination should is based on his own personal assessments and subjective observations because ultimately the question is whether or not a fair trial could proceed or whether or not the proceedings proceedings need to be turmoil and what can you rely upon for that situations again when the district court uses its own personal observations to determine for example there was juror bias that could not allow for a fair trial now in this case we do not have the defense counsel sandbagging the government because there was no unfair surprise now this court this one circuit under united states hernia has created that a lesson there are specific rules or precedents that were choir advance henschel alternatives shoe terminating the procedure it must choose an alternative it is less harmful or less less harmful than ending these proceedings and depriving the defendant of his right to be tried by the forward everything was centered around this belief that the government was unfairly surprised and this court's precedent is clear in hernandez the mesa the defense has no obligation to disclose its theory of defense to the government defense counsel intended to their entire defense was based on holding the government to its standard creating reasonable doubt to the element that the government must prove in this case the element of alien  government was aware that regardless of any defense that the that defense counsel put forth it had the burden to prove beyond a reasonable doubt the alien it alone so even though we have this finding from the district court that's waiting for the question in this case is did it create a situation where a fair trial would not have been able to proceed and the answer is no because what the district court should have done in this was taken a in the procedure clarified the legal issue and at the very least what the district court should have done is asked the jurors if he believed that this this trial was going to require extensive briefing which we believe began on the basis of  is necessary in this case but the reason why it's important for you know in situations where we are reviewing whether a man or a sense is because this court in united states been travelling has instructed that in determining whether discretion was trial like ambush tactics just fixed is a very experienced childish he acted within his discretion in declaring a mistrial due to the conduct of just best counsel and the impact that that reading i do think there are scenarios where defense theories may come up during trial and can be presented at a later time however that was not the case here if you actually look at these jury instruction basis to be withheld and they were provided late inconsistent with the court's deadline so in this case no i don't believe that there was any basis to ignore the court's deadline not to mention these instructions were provided to the court after the new deadline to sell so if the the real reason was because they wanted to maintain these defense theories and see how they came out a trial wouldn't have to bent's have wanted this with the judge in advance what they have brought it up at the calendar call that there may be additional instructions if they knew about this they should have at least complied with the court deadlines and they did not do that i mean it's it seems to me that the court was said th what was going to happen now that seems like a reasonable reason that was small the way let me ask you what is going to be required to find out what the situation was with this jury whether anybody had any problem saying an extra day i don't know that that sounds to me like this was something that was going to delay this for a very d long maybe a day as he required to find out what the jurors abilities were with regard to this was that  requirement was he supposed to find that out i don't believe there was a requirement but i do believe the record reflects that he contemplated that issue so to begin with it was not merely this alien it is you that caused the mistrial if you look at the record right before the declaration of the mistrial a whole nother issue developed regarding the one thousand nine hundred and sixty four taishan proceedings the late disclosed exhibit and whether or not there could be a collateral attack as to those proceedings in front of the jury and that's when defense counsel started begging not to declare a mistrial or not to exclude that evidence because that was the sole defense of the defendant at this point we have three maybe four complicated issues in front of the judge he noted in the record that he had only canvassed this jury up to three days and that he needed a briefing schedule and i think if you look at the records subsequent to the trial it confirms that judge hicks was correct introducing that this was not a one to two day continuance this case was briefed extensively post trial he contemplated a briefing schedule when he declared the mistrial so i do think he considered his options fully and he determined he was going to need multiple days extensive think on multiple issues in order to make this determination and that decision is titled to great deference so you're saying that at that point he was not required by doubt it was during the three days or or days you could just assume that this was going to take a while and that jurors would it would be fair to them you could just assume that without asking this i don't think that he just assumed it i think he was considering what he the jurors on and what he needed to do in that circumstance could he have asked the jury can you stay for an extra day or t yes he could have asked that would that have alleviated the problems he was facing i don't think so because he needed to not only conduct a trial but he knew he needed extensive briefing which was going to take longer than a few days so i don't know that that would have basis i think that's and in arizona versus washington and but in this case i will say that at the time he didn't cover all of the base factors generally when he was making this ruling is the subsequent order merely gave more detail to his under the circumstances that is set for the arizona vs washington that the role of the reviewing court is not necessarily to say there's one way that this should have happened and assess whether or not the district court did that i think their role is to assess the base factors and whether there was sound discretion exercise and giving judge case deference with regard to what he needed in order to make these decisions about fairly asked that the parties brief all of the proposed alien age defenses so that would have included in this case i believe there was a foundling and citizenship theory that may or may not have been a derivative and who are acquiring citizenship theory it wasn't ever clear in the briefing of defense finance proceed under those theories he also wanted extensive briefing on these evidentiary matters relating to the one thousand nine hundred and sixty quotation proceedings because as this court may recall there was a whole motion to dismiss filed during the discovery phase on whether or not the deportation was legally sufficient the judge found that it was on the morning of trial by the air defense trial counsel provided and updated exhibit lists listing several exhibits that have to do with the notice provided for those deportation proceedings the fact that the defendant was a young age the fact that he was deported in absentia all of those issues have been declared legally sufficient by the judge so there needed to be extensive briefing additionally on whether or not those items could be presented to the jury under just your rules of evidence so there are quite a few issues that were requested to you breach those  believe the judge has fully ruled on all of those issues at this time  lot of the questions and discussion about deference to the district or judge the deference that we give is whether or not he's proceedings and needed to be terminated because a fair trial was now impossible if we don't give deference to whether court judge appropriately considered whether he needed more time so what the president here requires is that we're not we're not asking the judge to ask any specific question every single day but the disher court judge record the district court judge concluded that it was without asking the jurors reasonable to assume that a continuation a continuance of the proceedings would not be feasible this was an abuse of discretion because the just report judge did not take that