one of our district judges made a comment once that trial's a living thing when everyone comes together it's nobody knows quite what's going to happen and some attorneys don't even like to do retrials because that other proof before the jury a prior to the partition so it could have been the only basis for the jury to found our deportation and finally they were the only basis for showing removal from the united states physical removal from united states there was no witness at any time who said i took mr behavior to mexico i removed him physically from the united states and i did last wish agreed that there had to be proven and the only evidence of that was the documentary evidence where it was the war of deportation  government contends are non testimonial in nature these are not in the nature and i believe the government's lavery refers to agency with a view toward prosecution then it would clearly fall within and what is testimonial it seems that the supreme court in crawford that's the evil to be avoided that they have kind of like a civil law system that treats like france have where you can bring in documents and the essence of the case like this is is the documents but so i think that a definition of what is testimonial would have to in clude documents to death in this case are kept by the department of homeland security for prostate criminal prosecutions in the form of deportations proceedings which are also to be used in criminal prosecutions such as this case and in addition have it have a substantial are relying strictly on documents that in the spirit of crawford in the hold of proffered clearly are such records exist or not so i think both fall whether under testimonial as types of testimonial evidence under crawford but after the court's question it is conceivable that the court more than your honest and very on behalf of the united states from the southern district of california i guess i'll start with the crockett issues in this particular case i say indicated in my letter brief which sounds like everybody received in a timely manner but i didn't find a lot of it is what you think the test is how would you define i was thinking about that during your question opposing counsel your honor i think that the t should be yes the document involved somehow represents something akin to testimony such as they indicated the proffered grand available for you to delay the trial that's true i they they may be available for use but i don't think that they are created in constant play gin of either prosecution or further trial that it will be used in a proceeding or would lead an objective person to believe the statement would be available and it fits in with that or would leave would would need a reasonable person to anticipate the statement w document that documents for lack of authorities evidence that somebody has left the united states this was in conjunction with the stipulation that we had to enter into by the parties of the order of the immigration judge because i believe part of the materials that you all request included the order of the immigration judge which was some thirty five pages long we couldn't put that in what is your understanding made on the document on the warrant what's the reason for that and what happens to the purpose for the notation and information on the document for it is a record that i think it completes the deportation process right that's that's what i think that's what i know from talking to immigration naturalization and it's not you think because people think you may need to use it again absolutely not absolutely  i document you're done as part of the processing and healing for deportation the fact that he may come back here she may come back later and it may be used against him i it's my understanding that the idea that a document was flung forth or a statement that was brought forth where there was no ability to cross examine at all to the extent that the court deems it to be relevant all of the documents that were brought forth in the trial against the appellant were brought in and through an individual representative of the immigration and naturalization service he in fact had actually done a manual examination of mr bayne as extensive a so i don't i do have a node in my grief your honor but agent writing there actually testified that not only had he made a man and searched the entire file he was the one who sent off to washington for further information regarding any evidence out there and of course to this this evidence in the end was not disputed substantively because it would have been counterproductive to the defendant's position that judge wardlaw had made a question about the immigration proceedings the deportation hearings it is certainly the government's position that there was no fundamental flaw in reviewing the materials last night for the umpteenth time in this case i was able to discern that in fact with regard to the critical testimony of the witness that is of whom mr the he complains the i think the clear reading of that transcript indicate bored with life just more lies positive it would be the government's position that there was no due process violation and certainly no prejudice he closed a clear reading of the immigration transcript in said brother at the same time that i don't think that really takes away from the due process violation of going forward over her objection without him being present and the fact that my understanding was that agents have called her the witness in question was brought back he did get it he did get a second crack at it but that as the others incorporate the arguments i made earlier i think that that just wasn't enough you know in my view to make up for the gro witness it says it's actually part or not witnessed fully identify source means departure this is clearly something is being kept for purposes of anticipation of subsequent litigation you decide that question without some kind of examination of the government as to why they keep the documents well i think if the test were is  these documents being created where an objective witness would believe that they are to be used in subsequent prosecution clearly the answer would be yes as to the documents used by the government in this case and at the heart of this is the right of cross examination that we didn't have as a result of the fact that these documents were introduced without an