the third step of the bateson test now as we've argued in our briefs the district court has completely failed to conduct this step and the court at the court's case law is very clear that this is not something we have to ask for this is something that a district court has to automatically proceed to do so what happened here is the district court just said those are racially neutral reasons prosecutor gave several reasons and in the  certainly our best argument and i think a really clear example is the fact that as a prosecutor said one of the things that i'm looking toward is did any of these jurors serve on a jury and not reach a verdict and that was one of the reasons that the prosecutor structure number seven but if you look back at the record there were multiple times at least three times where the the juror said yes i served on a jury and then the prosecutor didn't perce verdict in fact sure twenty one if you look that record jerk twenty one said i served on a jury on a border crossing offense the offense that is most like the offense here and yet the prosecutor didn't proceed to ever ask a church twenty one what diverter whether they reached a verdict in that case so the very reasons that prosecutors given as to what the prosecutor was looking for wasn't played out in the prosecutor jurors who did serve on the jury but we don't know whether they reached a verdict or not or at least one other juror that you pointed out your number twenty one that's right so but another thing that i would i would point out your honor is for instance one of the things that the  government has raised its praises they said well the government only had six strikes how are they supposed to strike everyone and that you know there was supposedly reasons that they could have struck them for but if you look at the fact that the government struck  would be journal for five and basically journal for five said that that juror reached a verdict in two civil cases and that sure as far as we can tell didn't raise any of the other concerns the prosecutor either expressed or didn't express there was nothing about that  that seemed to raise any prosecution concerns and yet the government dropped that juror rather than juror twenty one who she didn't even ask if there was a verdict reached in the most similar type of case well but basically obviously went through a meaningful process to go because conclusion and it seems to me your quote quibbling not with the nature of with any kind of bias or or rubber stamping but you're just seen in the court's decision and of ours who you are and there you had a situation where the district court said the exact same thing the district court said i believe that these are racially neutral reasons and in fact the district court in alvarez you actually went much further and recall and look look at the record exactly to pinpoint what the sequence of the prem three exercice was but you seem to focus a lot on the church with some experience that the government didn't ask about the verdict and the government struck on the jury we look at what were the strikes that the prosecutor exercised and in this case there was just no reason for the prosecutor not to at a minimum add another example i would give your honor is for instance the one of the things the prosecutor cited was the border patrol former border patrol father and a prosecutor said well it just seemed like there was something there and i didn't feel comfortable about it but what the court case was said that if if the juror which the jury in this case said no that's not going be a problem if there was actually a problem and the prosecutor had a responsibility to actually inquire further and she didn't so for those reasons your honor we believe that the prosecutor just hasn't shown or we have shown i  hello may it please the court benjamin holly for the united states the district court did reach the third step and regardless of the trial level and here mr calderon has not proven have not met his burden of showing purposeful discrimination first the court found case that mr calderon was observed on video at all in fact their their request specifically for that page eight fifty five of the records requests to dispatch or other tapes or physical evidence which relate to the arrests here the agents on the ground were never in communication with the video operators and the video operators testified they were never in communication i never saw mr calderon on video were never in communication with the agents on the ground except for one said when he heard that they were following footprints were tracking it was five miles away as one of the age of testified this is a fifteen mile stretch of border there are multiple calls multiple events going on all of the same time and so you didn't have no reason to believe that backup if they said it wasn't for them then no reason to believe that this or come from on about two miles inside the border was on camera at all so as it turned out at the time of trial the agent testified that the the dark spots really were referring to this  that dark spot call absent that and in our view because it wasn't related there's no indication that you know what would happen is if the video operators observed him they would put out a call you know i have eyes on and then direct the agents to go left go right that's not what happened the thirty minutes before they even find the footprints there's that one reference the dark spot which the court found i could do with some trucks on a different area and the agents on the ground are following these footprints for two miles into the border so there's no reason to believe that these cameras  here because the cameras to be clear do not cover there are a lot of cameras but they don't cover every inch of border so for example in this particular area i believe there are about three cameras and they a swivel and they consume in a so that you can track somebody if you see someone but it's not that every inch of that border is on camera or even if it was the agents are able to watch all of those screens and anybody who crosses the border we wish it were that way but unfortunately the technology is not there so the practice is check the cameras and question i had asked earlier and there are cases here in the ninth in which the court has affirmed a batson challenge word there has not been a formal third step very well that would that was specifically the case i was a kid i was is a lanas and i think you see as well or it was my impression from reading those cases that in fact the court is not requiring some explanation right decision so is it your position then that step three was complied with in this informal manner correct that when the course that these are not based on race that necessarily requires the minimum if for instance the court says well as long as there was a decision made then you know we can go with that i think the difficulty there then comes with a standard review because if you have a district court and they you believe that they have reached a third batton that's a step but they haven't explained it on the record then you really have no way of saying well do we review this or clear errors in noble because we don't know if the reasons were good enough so if the court decides as you're suggesting we would alleged at a minimum the court the review that needs to be to novo because we don't have enough here to go on the record the other thing i that i would just like to address briefly is the issue of the video that you're on a brought up i think this goes to  broader problem in the southern district which is that it has always been the policy of the government to only have these videos for thirty days we never had an explanation for that i've had at least three cases where we've argued why aren't these video preserved longer we're on the border official restraint is a regular it's a defense we raise all the time and yet the government has never given us a satisfactory explanation for why these can't be preserved if this were an issue as we point out in the brief of well we're using v h s videotapes and there's no room for it that might be one thing but the electronic reminders here you made the request within that thirty day period absolutely yes we did and the other things that that i would just respond to in government counsel's statement of do you check the videos you check the cameras to see if there's anything on them i've never seen any evidence that and i'm not saying that that opposing counsel is not being truthful i'm just saying that in our experience it's just a fact that after thirty days there recycled and i've never heard of a situation where they've actually been checked prior to that the other thing is that because that's what i wanted the government to address it i need to look it's the issue that's presented here you know we have  to deal with the facts that we have in determining whether there was an indication that he was under constant surveillance so you know we can only deal with what's before us but i take your point that official restraint is an issue that should pop up repeatedly at the border and as to whether the government should change its practice and preserve it so that the fence is in a position in the pen that we assess the video i think that's something that the head of your office and the u s attorney needs to get together and really discuss and whether there's a good reason why logistically difficult for the government to to preserve at the the thirty days which is their practice and  safe nodding his head i'm sure to get conveyed to the office down there absolutely if i could just make one response that at a minimum i think that goes to the issue of the jury instruction and the quality of the government's conduct because they're still doing this practice there's no good reason and at a minimum we should have gotten jury instruction thank you thank you very much the matter submitted for a decision that we come to