district court judge she agreed with the defendant that mr von steer was well grounded the court may recall he was on the staff they left china i don't call the province but they left china they were ended up in the area of south korea mr yong at that point in resignation to captain he told captain year lee that he no longer wanted to continue participating on the basis for the letter of resignation fear i believe was fear in both the fact that he did not immigration laws of north korea but it's my understanding that he needed some type of paperwork or some kind of documentation when he was in south korea in order to get from south korea back to china the captain had those captain she had those documents refused to give them to mr you want  for help that's one of the issues that one of the i think all eventually ultimately all of this should have gone to the jury because there were lessons about language barriers whether or not it was was there testimony that of said yes i don't believe though that there was that would have been  e continued to carry on as he was the stowaways with rome overboard so that also put the ever the omnipresence of the stowaways upon mr yonder in the entire time that he was on that ship and that would instill fear upon h battery or some type of injury in thirty days that's not the case here how can say if you continue to protest your presence on the steps you're going to get injured in a week or two weeks in this particular case stowaways were immediately present continuously present and they were not with your contention that the direct instruction was far too it doesn't square with mr yuans testimony mr johnson i that when you took the stand and i think it should have been for the jury enough for the court or this court to make the decision whether or not who was more credible than the other the jury saw the eyes of the people who testified the jurors were never given an opportunity to consider the defense of the rest because they were never so instructed that if you was acting under duress that would constitute the first of the crimes charged outside of the record i do think that the record would have supported the giving such an instruction because when he learned that there was a little stowaway speak tempted to withdraw from the conspiracy he's off to resign he wanted off the ship he wanted literally off the ship he wanted out of the scene now the usa and there are probably if they argue that some of the overt acts that are committed however based upon the testimony of mr yuan he was not a knowing participant in the conspiracy from the time from the trip to china to the chips crip i talk too fast sometimes trip to south korea and if he was not a no involuntary participant and there was no agreement between the parties there was no conspiracy at that point in time when it's a conspiracy to develop winterize those that goes to the sufficiency of the evidence are when did all that happen that's all the matters that i think would have been titled the defense mr you want to instruction on the defense of withdraw from the conspiracy he did everything he could at that time to withdraw he was threatened with death is threatened with great bodily injury and again it goes to the to rest know i don't have that benefit with me so i'm doing the best i can not being able to know where my client is not being able to communicate with him not being able to notify him of any rulings by the court of a socialist so i believe based upon that he's been denied due process the to the court's satisfaction that there was so that each of these elements had been satisfied obviously the court makes the decision on whether to grant the dress instruction those three elements or whether the fende and committed as we have any additional thing that he has to prove to the jury beyond what he has to prove to the judge decides to give the instruction if the court decides to give the instruction then  or to escape and whether we had a grand well grounded fear that threat would be carried out i believe that based on the defendant's own testimony in viewing it move in the light was reason for he did say that he had a well luzhniki left the ship he admitted to the axis of the bridge into the radio equipment he admitted that he never attempted to contact the korean police he admitted that when he had a meeting with ship's representative come to the come to the ship the suit was going on easy to break down he never mentioned to the ship's representative that there were little stowaways on board and he also admitted that he never told united states customs inspectors that there opportunity contact authorities first opportunity he didn't do that mary has a duty to if you want the fence to work exactly right and again for many of the same for many of the same here the defendant is arguing that the suspension be that he would drew from the conspiracy which seems to suggest that he was a part of the conspiracy in the first place yet he denies being part of the conspiracy to defend his position at trial was that he was never a member of this conspiracy that he only found out about the aliens on board once he got on the ship and left china and that he was under duress the entire time that his own testimony that was not contradicted by various witnesses the government introduced but in any event even if you've even if he admitted to being a member of the conspiracy and attempted to withdraw in korea well that's too late because by that time there had i think the court also picked up on the nature of the supposed withdrawal which occurred in form of resignation letter the court is correct in that the resignation letter does not speak of aliens did not speak sto honor for whatever reason i don't believe that it actually was ever introduced although there was certainly testimony about the content and he didn't want it anyway it totally didn't matter in the  simply did not rise to that level it was made in passing it was not a even an inflammatory as he is the errors at issue in ny in miller or halliburton the jury already knew the captain we was in testimony come out during his testimony the previous day and this is not something the government argued in closing argument or anything like that so all of the government did make a mistake and inadvertently listening the testimony serving his sentence in i think it was in i think it was in may of two thousand and two he was deported from this country in june of two thousand and two  there's nothing in the record that suggests that the defendant even knows that we're here today much less that he exhibited any sort of anxiety or concern over the pendency of the appeal moreover the defendant  preceding attorney filed the notice of appeal to the direction of this client it was filed it was pending and nobody needed any attempt whatsoever to terminate the appeal and subsequently i was appointed i then proceeded on filing the opening grief but there was let him back to the country still have homeland security we still have borders with you i just can't get offline and fly in l a x next week they would have guards all over him they took him out they put him into some place araba be in san pedro and support him i don't know what the procedures are so i don't do that stuff but numerical basis but there has to be some showing some threshold showing that each of the elements are there that i think there has to be and i think there has to be evidence in the record from which a jury could believe yes that you could approach as well theory that the conspiracy started at the minute that they left the province and left the ship and it's their argument that at that point in time mr yon began to engage and overt acts have been completed so therefore by the time he got to south korea was too late to attempt goss testimony indicates that he was not aware of the fact that the stowaways were on board until finally he arrived and south korea when he was in south korea he made an attempt based upon that letter that was in chinese to withdraw from the conspiracy and also  the sufficiency of the evidence of the conspiracy is a kind of overlap you know in a way and i suppose i mean why it may be that your argument maybe i don't know what was very proud but i suppose the argument can be that when you first learn have the fact that there were still