the double jeopardy issue as the court well knows the double jeopardy clause of the fifth amendment prevents well after it does not counsel it it seemed to me on the double jeopardy that when the church said you have anything to say you want to make a record when the jury was still there that was the time to say your honor we're not the ones that asking for a new trial we want to go on we want to objection but upon the government why because to begin with it was not changed to use motion you did absolutely nothing whatsoever to cause the grounds for the mistrial secondly he did nothing mess things go badly that was for me well no your honor mr shakily you did absolutely everything he could to cause the trial to go forward knowing that's it unless i'm missing something and i want you to educate me if i am he did not do everything he could or even anything to cause it to go forward what would have been causing it to go forward would have been your honor i want the credit go forward to say so while the jury is still there court had already just declared a mist one had a chance to say something it wasn't that had the situation i think there was times where there are many occasions does anyone want to make a record while everyone sits there and no one wants to know much to say anything else why wouldn't that be the time well what  get a tape recorder allow this witness to testify testify without the use of a court certified interpreter and in the event that there was some things some sort of a problem with respect to the a trip or taishan then we'd have a record that we well again i think it was incumbent upon the government because they're the ones that cause a mistrial the statue clearly required the government to obtain a court certified interpreter for the spanish speaking witness they did not do that the district court recognized that they did not do that and as a basis of that granted the medium's motion for mistrial again i think it's critical to this analysis that mr chandler you did not make the motion he did expressly joined in that objection but there was no expressed jointer in the motion for a mistrial indeed there was no implied jointer in the motion for a mistrial  said we'll accept that alternative and in the event that that didn't occur couldn't occur we will allow the government to take whatever time is necessary for it to procure explore certified interpreter the government went back attempted to obtain a court sort of fighting for that it could bring to the trial on short notice and they couldn't do it and as a result of that the counsel objected again and made a motion for a mistrial nowhere in that call it was it can't even be implied by the language change who you joined in that motion and again because it was the government's fault it was incumbent upon the government to offer a severance and to continue on with the proposals that the district court had made with the trial because that was acceptable to change the view now again there's about whether he gets to keep this jury or gets a different theory and whether he gets to keep the directing cross examinations that have been hurt by this theory or whether they go oh yeah well i don't know about that because i would line nine in with mr donohue not gonna hold up being in any kind of position to know if there's a problem with the spanish even though mr hooper stall may i just the thing years it's not going to it's just not going correctly so i'm going to declare a mistrial in the next sentence he says and bring in the jury if you would bar and i will and i will tell them that i have declared a mistrial so that juncture it was understood by everybody that the first time he uttered the words i'm going to declare well i would agree that the district court had declared a mistrial and if we look at footnote eight in faith based says that there's no formalistic requirement to make an objection after the fact i guess i'm tony gallagher representing me also known as me a pigment we had three issues in our blue brief the third we can see it has been decided by the supreme court's decision in  strikes to exclude women from the jury and secondly in the jury charge the district court refused to instruct the jury that the defendant you must knowingly conceal harbor or shield illegal aliens find a reason that was given or they find a reason for a strike nice focusing on a discriminating view of what the prosecutor's reasons were and with regard to miss load all the prosecutor said and i whether the prosecutor is whether what the prosecutor had given general mood general gender neutral reasons it goes to the intended prosecutor to discriminate and as we said in the group blue brief the court stated something totally severe is in a service in a functionary capacity at the place for employment which is what mr your can't instead below and i don't think that there's anything generally that in the excuse of mrs lowder so the court went beyond with the prosecutor s east indicated that comparative analysis would have demonstrated the protection to all nature of the government's strikes and because they were textual in this case and because there was no comparative analysis this court cannot adequately weigh whether or not the government's discriminatory discrimination purpose was shown therefore prong three was not really conducted by the district court below and this court must reverse for that reason and  with regard to the jury instruction issue we believe that as we've cited in our reply brief united states versus parmalee which is a seventh circuit case certainly assists this court in determining whether or not unknowingly should have been added to the jury instruction as the court recalls from our argument as well as from the excerpts of record in this case we urged the district court to add knowingly to the elements for the offense to either in the third or the fourth element the court refused to do that indicating that it would add a knowingly or general knowingly instruction now what's unique about this  form and the court instructed them that the verdict form the nothing to look at my instructions well if you look at the court's instructions knowingly isn't there that was the focus of the jury question certainly we believe th hundred ninety four had the best result that should have happened at the trial level and that is that the defendant's guilty knowledge should have been reflected in either element three or element four i thought that the and the court did not but it does track this the language of the ninth circuit pattern jury instructions now certainly the district court the lying on the ninth circuit pattern pattern jury instructions use the ninth circuit pattern jury instructions are request of the court was that the defendant has to act knowingly knowing what knowing that they have assisted the person conceal the person shielded the person or harbored the perfect person how could you have a purpose of avoiding the void in the person's detection by immigration authorities without knowing that your honour's purpose is it just kind of hangs out there without knowingly or without reckless disregard for the truth and what the parmalee court says is exactly that that the purpose is just hanging out there it's it's not tied into the mens rea of the defend and if it has to be tied into an unknowing act or it has to be tied into a reckless disregard for that purpose so he has to knowingly act with that purpose or reckless disregard for that purpose that's why i'm having trouble putting that together if i have a purpose to do something i can't have the purpose without knowing the things that are a predicate for that purpose well i'm trying to think of the logically how it could just be hanging and i think the court has answered its own question and that is that the purpose has to be tied into knowingly acting i can i can act with a certain purpose but i mean not act knowingly i mean  we make here and that is that they did not act knowingly that at least with regard to misuse them she acted out of mistake well but i think that would be if you did the act but it wasn't  you know how is it knowing that they're well your honor i'm on my staff sign i've gone through my stuff going and so the question i understand that i am answering the question i've gone through my stuff so i'm with the purpose of convincing you that my argument is correct but i've done so knowingly now i know that i'm beyond the time i can go through that stop sign not knowing that i've gone through it but i've gone through it with the purpose of going into the intersection so i have to know that i'm doing it for that specific purpose directly on point whether it be smith smith's case roberts case the guy can case or the bates case all of which were cited and the briefings done all that indicate that implied is equal to express consent the second step of that is what can show implied consent and is just client thought pointed out silence is can be recognized as indicative of court and parties became aware that there was a problem with the with the interpreters there were multiple discussions there were alternatives that were discussed the court acted very deliberately and consciously each gesture talking to counsel and finding out what they wish to do so there was no surprise in this case and the cases point out that if you have the opportunity to remain silent that is indicative of implied consent i think to directly respond some of the comments of palin's counsel the statements made by the court that he was going to declare a mistrial and are absolutely correct when made the motion for mistrial it was on the table at that time it was out there in fact there were even discussions of double jeopardy early on as the alternatives were just that were discussed in the case evolved when the co at that time so there was no surprise the other point is that i think it's absolutely correct that it was not at an irretrievable point when the court finally came in after they had already been multiple discussions there'd been a break of some twenty minutes the court came in and the parties all were aware that if the government cannot find a certified interpreter in this time period the court is actually dismissed counsel had adequate opportunity to state and she action to discuss this further of alternative the severance and in fact the court specifically asked for the die was cast do either that only arises when a mistrial is ordered over the objection of one of the defendants or if that defendant did not have an opportunity to respond or object i think the record indicates that counsel did have the opportunity of jackie and failed to do so moving on to the facts and questions well there's there's four people and there was the one that the prosecutor said something about the job with the newspaper but she didn't work much with people and just by the fact that she worked at the newspaper she didn't seem to have much interest in this case and in fact her perjury for the answers given that we're not very sophisticated i think it's important to look to the record to find and to see the precisely what the judge actually said because again i think there is no these are euphemisms for the prosecutor thinking she's really not smart enough to understand if this i think that certainly what the prosecutor was thinking is that perhaps this individual is not sophisticated or smart enough to understand the complexity i can understand what they're talking about functionary and all if what they mean is she's too dumb but we're too polite to just say right here in open court she's too dumb then i can understand what they're talking about well that prosecutor specifically said he closed his remarks on that sure is that i think the issues before the jury are somewhat complex and that's the reason we chose to strike her face done all of various reasons for answers to in the jury questionnaire the type of job that she had and her what the prosecution the end was her level of answers that there was discussion on the record about fact newspaper had written a couple of stories that she had at the restaurant but what's important is that the court ultimately returned to the reason specified by the prosecutor it did not that is i want to get all the women on the judge coming up with a reason doesn't help athens you know that's exactly right and i think that think i think the point the point that i try to make is the ultimately the judge that was one of the reasons expressed by the prosecution it was her job was one of the reasons that he utilized that as an establishing at least in his mind that he did not think that she w intellectually equipped to deal with the complexities of the case in the end the court returned to those and said that the recognition of her functionary job is gender neutral and therefore is not a pretext one of the points that i think needs to be brought out is concerns this aspect of comparative analysis this court has never required or prescribe a certain mechanism a to a conclusion that the prosecution's reasons those reasons proffered were not protection that is what is required under bassett and this is what this court has required in various cases the comparative analysis is simply a tool that may be utilized but it is not required in all cases and i think in some ways you know equates the comparative analysis with the proper vats and examination that is cases a comparative analysis it's not simply the lack of a comparative analysis that the court finds fault with the review in court finds fault with it is instead the recognition of what the record revealed through a comparative analysis and in those cases what the court recognized with reviewing court recognized was that a review of the record revealed that you had comparative characteristics between stricken and challenged jurors whether it be on views on the death penalty or that is stricken juror had a reluctance to view gruesome photographs just as one challenge sure did or that people lived in the same neighborhood or held the same views or had the same history in all of the cases the court was able to look through the record and recognized that the record contained issues of similar characteristics as challenge male jurors did that is what the court is looking at and that is absent here it is not merely the fact that a comparative analysis could be done the question here is what would the record have here based upon the questions that were asked were asked based on the jury forms there's no indication there's been brought to this force attention by the appellate that the record would have revealed anything and that is what the scores looking for related to the objective characteristics of juror number six and that was four out by the record yes stuff it would be at least in addition the prosecution's motives were discriminatory but that is not evident in this case both sides here we agree that those opinions control this matter but there is obviously disagreement as to what those cases mean over and over in those few cases especially grasp ont the court said to find the appropriate criminal intent the instructions must state that the action was taken for the purpose of violating the immigration laws that asked to be in there somewhere was there an intent to violate immigration laws that is the root of all of this and they quote the more a sec case and evil meaning mind must accompany an evil doing hand the only way we get there is by showing an intent to violate immigration laws in this case the jury instruction given stated precisely that take an action what is that action steelman and harboring of an alien who is known to be in the united states unlawfully that the in and of itself the government would concede is inadequate you need that criminal intent element how do you get that by express following the statutory language was that adequate did it actually bring the necessary mens rere requirement into the instructions it similarly determined that it did not what it stated was you could have unknowingly which concern the transportation of illegal aliens what it decided could be done was criminal intent was created by the words the transportation was done in order to help the to remain in the united states on lawfully that was the language which gave the criminal intent in order to help the alien remain in the country unlawfully in our case what gives you the criminal intent language is the specifically expressly that require criminal intent element i'm just curious as to how you respond to your opponent's argument he says my purpose is to answer the question i know that i'm speaking when the red light is purpose and that purpose is expressed you know what you are doing why you are doing it if you are doing something for it particularly purpose you cannot be doing it for any other purpose therefore you had to have been doing these things for one reason and one reason only and that is to violate the immigration laws of the united states with the language in this instruction was as good as clear as express and it could have been it did not need to rely on relation to other terms other definitions the fact is that your it could only come to one conclusion that there was criminal intent and so i would respond to it in that way that if you have a purpose you cannot have another and with that i will close and thank you for your attention for thank you coun