infer well first of all the area that they're in and the duties that they're performing there's direct testimony that they're performing line watch duties which the agents described as we're actually driving back and forth looking for foot traffic that comes from the this nightscope operator in a position where you can't monitor people coming into the united states and can only monitor areas a mile north or further from the border but what doesn't make sense who doesn't make sense is the martin family for a mile says that they saw him when he crossed the border there's nothing direct that they saw on the mexico side there's nothing directly on the u s side and i think what's important to remember is that you know there was an exhibit similar to trial that sort of described basically shows the positioning of this pond's area and then blow up photograph the actual area where the alleged apprehension took place but it doesn't show so where the scope operator was right we don't know exactly where the scope operator was we don't know what he is monitoring and i think if you look at the lopez case from the circuit in that case you had a situation where the arresting officer couldn't remember arresting the person in that case and let you testified as well you know i don't remember arresting this person but my usual practice is that i watch people coming from the south from it's something basically in through the out door of the the port of entry at calexico and if i see someone i'll follow him into the shopping center and ask him about immigration status but he had no idea when he arrested mr  but not have entered the united states without an instruction on official restraint as far as you know under situations where a nightscope operator would view an individual but not report it to someone else well that has  on the scope into after the individuals had reached the other side of the canal so there are circumstances that this court knows about workmates go to operators not reveal the presence of someone in jail some time later and that's exactly what could have occurred here we don't know because the government didn't prove it but i think if you read these kids together you know released locust and you contrast that with past behind us that this court has pretty much held you need to call the person who first sees the individual coming to the united states and you need that individual to testify and affirmatively show that they were first seeing that in the united states the case is they say if they find somebody united states they're you know it's presumed that they're here question is would it be reasonable for the jury to infer that it was from constant surveillance from the time he entered the country well i think there's another key piece of evidence here and that's that the person the arresting agent had no idea when that surveillance began and that's key because this is a border patrol agent with two years experience experience in this area and for him not to have at least some idea of where this surveillance began i think is telling because now if you're asking the jury  in the arresting agent had no idea i don't see how reasonable juror could have some idea of where the surveillance began i mean if the arresting agent on a case talked about constant surveillance from the time that that moment they enter the united states that was our standard review determined whether or not it will determination that you were going to get it with the public that is the actual ruling district court held wasn't that there was insufficient evidence the district observation begin to have to order but just because you can draw that inference doesn't necessarily mean that no it doesn't that's for me but it's a reasonable inference that's my point that's all you need to support instruction but i don't think that's all the evidence in this in this case ron if you look at the other operator was watching these individuals tracking north exit of record eighty seven eighteen proof great actually which was manning the scope put it on alert on the radio that he had a group of seven individuals heading north right around this m the testimony is that not even great the next go by operator position the three other agents above the group and when they actually got out of their vehicles then they come down on the group to find them hiding so this isn't just a they're hiding in the and he's watching a group of people tracking north and positions the agents above them and if they were we're talking about reasonable inferences but if there are two equally reasonable