to the necessity defense instruction there was sufficient evidence shown to require the district court to give the necessity defense instruction that was requested however the district court found that there was not sufficient evidence and then this was and that is on the record at seventy two to seventy three and seventy six and on page eighty of the record the agent can state that the fires were in fact at one point in mexico upon his arrest mr torrance the man as was covered in ash predominantly from his he's an uninhabited area of mexico on the us border and being driven into the us by wildfires not necessarily there is running in the wildfire there that would have been the argument that the government could have made at in closing argument if the some kind of proffer of how that's that that he was compelled to violate the law that's what the necessity defense is that you're in circumstances in which you have two choices that are that are unacceptable one of the which i must violate the law in order to preserve life or do something else explanation as to what he was doing on that on the border in an uninhabited area of mexico in the first place well first i i don't want to concede that it's an uninhabited area that's just my belief there is nothing in the record to indicate either way and perhaps that's something that should be gotten into the district court but i think record seems to be completely silent as to that issue and i believe that it's that it's both of ours actually if i had known one way or the other and it was beneficial to my client i should have put it required is necessary and i think that the the district court should have at least allowed the defense to to argue to the to the jury about that issue and was not able to the second issue is as to the statements that were both agents exit the vehicle and they began to approach mr torrens menace and that's where they noticed the ash that was covering mr towards menace the agents as they were walking towards him they noticed that he was kind of looking away and trying to turn away from them questions i asked him what his citizenship was and i think given the fact that the two agents approached him and he was trying to basically avoid them it kind of shows that he with felt compelled to talk to them and all of the cases cited by the  you do have an obligation to speak to the officer right but i think that what i think the government is arguing is that it was a consensual encounter and not a terry stop if it was terry stop then the district court would have had a finding since two reasonable suspicion for the officers to approach him to speak to mr torrance units in the first question let me ask how are you doing was obviously not interrogation they were asking inquiring as to his health because of the situation that they're going on in the san diego area and in the border area for those three days but they're after when the atmosphere has been stripped question that's when interrogation weekends and i think that and given the situation that those were two agents and he was separated from the group of people that he was either with or near at the time and just across the way there's four other border patrol agents virtual cars and many other agents sheriffs and just a lot of other police activity going on i don't think there's any way that he would have felt free to leave and we felt compelled to answer their questions  ash only from the waist down we call this is the third and final day of the fire all the fire is pretty much at the now and more importantly the direction of the fires were never ever from software from mexico in sea knight states if anything go toward the fires and that is the critical problem in this particular request for a necessity defense this isn't a issue of whether there was just some evidence that was put forth the jury has to have evidence or the judge has to agent that's high that he was dealing with someone who possibly didn't understand english i don't area that he's familiar with then it became a situation in which he's acting up look i saw some sort of movements this person is trying to hide he's not responding to or his intent was consensual encounter or you are right do you know where you are can i in fact get you some medical help and that's what exactly happened in the very beginning certainly however we believe that  go outside of record we can use police reports we didn't use anything that shepard was concerned about what we do use was an abstract of judgment where we did use some sort of five judgments and convictions that was specifically reviewed by the district court and proven in front of the jury with their own questions that in fact is a consensual encounter nothing obviously harmful to mr torres men as arose from out there he didn't say anything that that was used against him at that point but it seems that mr cheney is arguing record i believe that given that the case law that i've been looking into it seems that you probably can and and this year i don't have any other questions thank you very much and