of the apparent william jenkins in this case mr jenkins fifth amendment right to remain silent was violated where he was told by agent special agent and you chase prior to giving any miranda warnings if you agree to make a statement and quietly and cooperate and tell me what happened i will tell the prosecutor that you will cooperate and you likely disk receive less time but alternatively if you refused to cooperate i would tell the prosecutor that you  uncooperative and you're likely to be prosecuted to the full extent of the law that in and of itself is course of the fifth amendment requires that the defendant has the right to remain silent and should be suffered no penalty for his silence in this case i'm not trying to suggest that i or any member of the panel is taking sides on this but my understanding is the district court concluded that your client was not credible is that right that's that's not correct and that's the government cited that as well i think with the district court referred to in regards to my client's credibility specifically when the district court was addressing the circumstances surrounding the fourth amendment and if you look on x or page one thirty eight line twelve it beginning on line twelve with the district court is referring to is my client's versions of events versus agent morgan's version of versions of events who is the a yes you are if referring to page one thirty eight of the excerpts of record if i find it that agent morgan was credible and that you were not in your accounts i credit agent morgan's account that you were moving quickly and i think you were trying to get lot quickly i specifically your address reject your testimony that there was a five minute interim where you and your wife discussed what went on in the secondary area the credibility determination by the court was only cabin to that regards in regards to the fourth amendment circumstance not in regards to the fifth amendment circumstance and in fact the district court accepted as true what agent she said had told my client concerning cooperation versus not cooperation and that is an excerpt of record one forty two if i may quote i accept it as true that agency's was going to tell the prosecutor one way or the other these folks were cooperative or uncooperative the problem is the effect on the cure of this type of thing the district court not only went on to accept that cooperation versus not cooperation telling my client that prior to advising any miranda that as true it also specifically stated agencies not to do this that it's a bad practice just the words of the wise and i'm referring to excerpt of record one forty four i wouldn't do that in the future i just think it is troublesome when the incentive to talk is discussed at the beginning  district court specifically credited what agencies and what my client claimed when he testified he was told that the government also conceded that in that in their argument as well so there is no question in this case that's true but this was more true than a lie well it was but the problem here and i think this court has already determined in internet states me telling a defendant that the prosecutor would be told of non cooperation that they refused to make a statement is punishing them it's chilling their right to refuse to make a statement it's chilling their are required to be familiar with the sentencing guidelines in criminal cases and or you know i think your case is going to federal court i think you are going to be charged whether you talk with me or not i just want you to know  that your sentence and the length of may be determined by how soon you accept responsibility and how candid you are with me now with that understanding here's your rights do you want to talk with there be a problem i th ink there would be you aren't because even though what i just described is it absolutely true i think that as the district court indicating it's a dangerous gambit to enter into this discussion prior to the admission of miranda that should be something that should come on at the end of the the defendant has the right to remain silent and something with what your honor just suggested that hypothetical could potentially induce the defendant to cooperate and to make a statement where it is not of his own free will but is it is now he's being advised of the operation of law in the operation of the god lies that is not something i think that that the agent should do at the at the beginning he should  number is right it should be a free choice to whether to waive that right or not and it should not be induced by any threats even if they are true in that regard so i think that refusal to cooperate is every defendant's right under the fifth amendment because there is no legitimate purpose for the statement that failure to cooperate will be reported and because it's only apparent objective is to coerce that this court disapproved of making those type of wreck representations and in this case that's only one circumstance that happened under the totality of the circumstances you have additional threats that were made in this regard you have the promise of leniency his well established law in that regard in addition you have the threat and candidly this was something that agent chase denied although later on he said that he couldn't recall the specific discussion concerning mr j wife mr jenkins when he testified claimed that he was told by even chase if you do not cooperate and make a statement to me and tell me what happened your wife would be arrested his wife was a passenger in the car at that time so the agent chased it denied that and then stated that he comes specifically recall but the district court made no adverse finding in regards to that statement but even disregarding that the first circumstances courses and as a but that's not the analysis if mr jenkins was asking for advice what should i do what should i not do the agent should not have told him or made many promises in order to get him to waive his rights or any threats whether they be implicit or explicit and in this case that when that is what happens if you're honest have no other questions in regards to the fifth the men and i just like to briefly turn to the fourth amendment argument in this case in this case we believe that after or mrs jenkins were given permission to leave written permission to leave after they had been detained for forty five minutes their cars thoroughly searched and their identities verified they were given written permission to leave and after that were stopped for a second time in their car and subject to search we would concede that the the at the border there is the government has a greater protection and there is no reason the suspicion required for the first stop that's clear i would concede that however for the second stop it was unnecessary delay and excessive and in order to stop them for a second time reasonable suspicion required and in this case there was not there was no reasonable suspicion as the court recently held in us v mendez you cannot just determine that reasonable suspicion is established because somebody had been arrested in this case agent working believe that he recognized miss jenkins from a previous incident where she had been detained at the port of entry that in and of itself as us the mendez instructs which was issued on october thirtieth by this court is not enough because it categorizes a great group of people the other circumstances surrounding reasonable suspicion was the fact that mr jenkins was moving quickly to the car but after being detained for forty five minutes to an hour for a search anybody would want to leave the border quickly so reasonable suspicion should have been required it wasn't in this case that it should court determined wasn't and we believe that it should have been required because they had already been detained searched a first time and allowed to leave given permission to leave and reasonable suspicion in this case was not required and without a save any i was twenty seconds f that she had informed him during the up post and that's where the drugs are if you know you're out of the drugs were found on the side panels of the van and also they were found behind the expressed admission of dominion and control over the vehicle well in this case if you believe that statement the state as i got in this vehicle on the mexican side of the border in that case one of the the deep bass injure was convicted of the charges and this court reversed that conviction but one of the things that the corps noticed with that look that the pickup truck rental contract was transported boarding they were to transport across the border counterfeit money and it turned out to be drugs would you take the same  was cocaine and it turned out to be marijuana no indication in that case i will not take the same position because under the court's instructions the government does not need to show that the defendant knew the financing please the court turning to mr jenkins initial arguments with respect to the fifth amendment i think it's important to recognize that this is a totality of the circumstances standard review in terms of standard  employs when making a determination about whether someone has voluntarily waive the miranda rights in this case i think it's important to note that i don't think it's appropriate to compartmentalise the district court's determination with respect to credibility district court did not find mr jenkins credible with respect to his testimony now assume for the purpose of this ruling what mr jenkins said was said to him was correct i  correct i don't think that that is entirely correct your honor i think if you look at pages one forty two one forty three of the excerpts of the record with respect to mr jenkins the district court says it's not in that that mr jenkins testimony with respect to that one agent chase did not recall saying anything about mrs jenkins i think in terms of the totality of the circumstances review the judge appropriately made the determination that well cajun james went in there exchange between agent chase and the defendant mr jacobs was not sufficient to overcome his will in that he felt so cool worst that he could not exercise his right to decline not to speak to here is mr jenkins looking for answers looking for advice he is engaging in agent changing the conversation he is the one who brought up the subject is of his wife it was not age chase saying i see that your wife is here i hear she's a student she's diabetic knows it was the defendant himself saying what's going to happen to my wife and as agent chase testified he has absolutely no recollection specifically what he said about his wife so i think  the court was guided by more recent cases of united states versus okafor and i think those facts are very very similar to the facts that we have in this case we haven't found it stopped  just as in this case and the agent approaching this defendant and saying here's what's going to happen i'm going to write you know you can cooperate you cannot cooperate i'm going to tell the prosecutor in united states result for this court found that was not sufficient doesn't get arrested and i think a lot of times it depends on what what is that there are circumstances where we are a driver will exonerate a passenger but that was not the exchange here this was not something where  look if you admit to this we're going to cut your wife we're not going to prosecute or there's absolutely nothing in the record to indicate that if that was the case and as a prelude to miranda if that was the case then the defendant i think would have a far more color but argument that his will was overcome because he was looking out for his wife and in this situation she's the one who raised the subject of his wife and what was going to happen to his wife and a if he said anything was going to interview her as well i'm going to write down what she has to say if she has anything to say and i i think the testimony was unclear but mr jenkins was testimony wise at that age and chase told him that i'm going to talk to your wife as well and if your wife cooperate i'm going to tell that's the prosecutor and if your wife doesn't cooperate i'm not going to tell the prosecutor so that those are the those are the statements that were agreed upon in terms of we're talking about our border search and in i don't want to call in unlimited power at the border by the government to do searches but flora's months he makes very clear that the united states has that came in gas tank was dropped and mark narcotics were found in the gas tank and that took according to supreme court between one and two hours and according supreme court that's not unreasonable so this notion that somehow that the defendants had received an exit code and had not yet left the port of entry but were spotted by a very aware conscientious inspector who wanted to make further inquiry i think that's that's the type of thing that that floor is one time you know did not want to chill we're talking about a border search here and that the government should have this type of broad power to conduct these searches  at the border and this is not a gauntlet that's been set up to get through the through through the port of entry i think the situation would be far more different if if there were repeated searches after repeated searches after repeated searches you go from step to step to step and it takes multiple steps to exit the port of entry and generally speaking at the port of entry there's a primary sometimes you get set the secondary and then you leave and this situation they were st chased that car down and once he got to that car noticed things notice and discrepancies with respect to that vehicle and conducted an additional search there's nothing on reasonable doubt that  evidence concerning mrs you know this is jenkins with respect to that issue your honor i think it's important to emphasize the standard of review here is that who the reasonable jury a reasonable juror based on this evidence that they had made these arrangements and they both had suspicions about certain things in the vehicle the radio the intent and things of that nature that arouse or suspicion that there might be drugs the jury is hearing all of this the jury clearly did not believe what they told agent chase and was their defense that they were smuggling aliens and from that from that the jury can infer look this was a joint venture this was a joint venture not between two strangers but between a husband and a wife who both told similar stories to agent chase at the port of entry who both maintain their innocence based on the fact that they said that they thought they were smuggling alien rather than drugs and the jury discounted that the jury discounted the notion that they were smuggling alien rather than drugs but clearly credited the this is the part of the story that they had engaged in a joint venture a joint venture to smuggle an alien and from that in reasonable j that they were both in this together and i think that's sufficient evidence now the case is that this is jensen sites in a brief and that mr molina stated here today i think are we're talking about strangers or people who are mere acquaintances the savants case and i believe the whole case both involved their side in the government's brief both involve a husband and wife and from that and from the evidence to juice the trial the jury could infer the courts that the jury could infer that because of the special relationship spouses that they could the jury there's enough evidence there that the jury could convey can find that that was a joint venture that the wife had as much dominion control or was involved in it as the husband was and with that i would submit ok thank there was no adverse credibility finding as to anything that mr jackson said in regards to his fifth amendment what happened concerning his fifth amendment right and his and his waiver of rights the most the court said was an excerpt of record in regards regards to the government's rights upon okafor in oka for what happened was the defendant was told that the that if you cooperated and made a statement the prosecutor would be told and he would likely receive less time but in this case even chase went one step further and this court has said in tingle that's one step too far and he advised them of the adverse that if you do not make a statement the government will be told of that and you'll be prosecuted to the fullest