primary issue and two additional issues in this case that are presented is the first whether it is then it should be compelled to incriminate himself by signing a fingerprint card and whether his refusal to sign that fingerprint card should be introduced in evidence know is that he speak spanish and his lawyer spoke spanish and his lawyer and he had a conversation we don't know if he refused what we know is the lawyer said i will sign for him you're making an assumption as to the conversation there's no record of what was said between them well your honor i was the attorney in question in this case and what happened was that he was asked to sign and that question was presented to him and then he was advised not to say you were the lawyer involved yet you testify as to what was said between you and your client i did not know so that's not in the record we can only go by the record and what do we have from the record what we have from the record he has he was asked to sign and the lawyer said you said i will sign for him that's all we have yes your however the testimony at trial that was presented to the jury by the testimony  mr beers who was the fingerprint expert presented by the government was that mr hoyer in effect refused to sign the fingerprint car in effect yes sure you know i believe that the excerpt of record shows that mr bear's testimony fingerprints those were not ordered by the court your honor mr hoyer was only order to give fingerprints exemplars which are not protected and it's not my position that those are protected however by signing the fingerprint card he was being asked to authenticate that c and provide a change in the link of evidence against him that trial he refused to do so on the advice of counsel exercising his fifth amendment right not to incriminate himself that in turn was introduced in evidence against him in violation of his constitutional right is the problem that signing it would indicate there his fingerprints it would be a claim to identity your honor and we have testimony of someone who actually put his hand on the document and said that he had his fingerprints what would be the prejudice here we have an eyewitness or says these are his fingerprints i was there i could his hand on that document how would you be prejudiced i believe is the greatest comes in the fact that one of the main defenses that was presented at trial was the issue of of identity i briefly if you however i think that even in the government's closing argument at york to eighty six and to eighty seven the government stated to the jury one of the issues here is identity do we have the right person in the cross examination of the file custodian agent trombley are two thirteen to two seventeen it was brought out that there were at least three different signatures in a file that the government purporting to be mr hoar as a file therefore i do believe that there was prejudice and this was not harmless because when the jury was asked to consider reasonable doubt in whether identity of mr h and he had been linked to his aid file they were also presented with the the argument that his lawyer told him not to sign a thing or print card claiming identity therefore i think that he was prejudiced because this went directly to one of his arguments files for mr herrera so i don't believe that it was harmless your honor and i do believe that prejudice resulted from this introduction of this evidence the second issue your honor is whether mr i don't think that district court made that finding i think that the another link issue and i'm going to answer the question is that there were no findings as to voluntariness that were made on the record and as required by federal rule criminal procedure twelve and creates or via another case that i briefed and twenty in jail or those findings are required i don't think that the district court said that there is nothing here i just don't i think there's a fact they said think that that's an incorrect but that's an incorrect assessment of the declaration and the reason is because it's under thirty five zero one and also jackson began it was clear that it's the government's burden to prove the voluntariness of statements were confession before introducing it into evidence mr voyage and submitted the declaration which alleged facts that if true such as he did not understand what was being said and he was not read any rights whatsoever i think that's also in the e r those are factors that go directly to the thirty five to one analysis and that well knowing that it's the government's burden to prove the voluntariness the statements that those facts alleged if true would not allow a judge to rule by a preponderance of the evidence that those statements were voluntary and yet i see that i have two minutes left i'd like to reserve thank you imposed and for those reasons the government is asking that this court affirmed the conviction and sentence in its entirety i would like to take with the court's permission the issues as they were raised by the defense in order the first being the evidentiary hearing the record i clear in this case on pages twenty four to twenty nine of the experts of record that the district court judge gave the defense counsel every opportunity to submit any contested facts to require this evidentiary hearing supplemental declaration and i'll consider that no supplemental declaration was ever submitted in this case the only declaration that was submitted was insufficient on its face and that's because the statements that were made in the declaration were subjective statements they were statements that i did not feel free to leave i felt pressured to talk and clearly under the existing law it's an objective standard that there must be some objective facts to necessitate an eviden otherwise a hearing is not justified and the record is clear in this case that the district court judge went above and beyond to give defense counsel that opportunity to submit those facts and those facts simply were never submitted to the court to sit back to the border surveillance is florrie's the border patrol agent handcuffed the defendant after chasing him for three quarters of a mile subduing him handcuffing him and then asking him to field questions to citizenship and rights of the united states and without giving miranda warnings on appeal the court did find that that was permissible even though that if it was handcuffed the government's a mess that this case is similar and in fact the facts are even more in favor of supporting the admission of the statements because  defendant was not chased and subdued he was encountered among a group of four people he was among other people he was with that at the border place it was via of self and for safety reasons one border patrol agent against four unknown people he's just come upon in about this issue is apparently if i read the record correctly there were conflicting statements made to the court by the this new u s attorney on the one hand apparently at the pretrial motion there was an indication that there was no cause to be no handcuffs so forth and then  statement was unintentional and was certainly something that was not intended to in any way influence the district court more importantly at the trial of this case the full evidence came out and the agent did testify who handcuffed the defendant and took those statements and he was subject to full cross examination and the district court at that time of course certainly had all of the facts before it and it was clear it's clear from the record that was fully fleshed out that the facts before  the fingerprint card the fingerprint card was introduced as it is routinely done in these these types of trials pursuant to the order of the court for the taking a fingerprint example as there is no protection of course for fingerprint examplar and the only issue that arose and it was i would submit fairly innocuous issue when you look at the talents of how the of the record was a very limited part of the trial a rose when the card was introduced and there was an objection to the actual language on the card the fingerprint expert had in fact written attorney refuse client signature and that's that's in the government's supplemental xor record i want to make sure the court to see exactly what was introduced that one line was was on the card but that was only on the card because the fingerprint examiner in his routine practice was always asked every defendant to sign the fingerprint card however after trial the only testimony that came out about this and this was cited in the government's brief is that the fingerprint examiner testified he didn't speak spanish he asked the defendant to sign it but he believes he asked the defense counsel to interpret to ask him to call sign the card and he said that he would there was a hearsay objection the court inquired overrule the objection and the government made no further inquiry after that there was no more questions about this point and there was no comment in closing argument about this fingerprint card about this line about attorney refusing client's signature the evidence at trial was that the fingerprint examiner did personally take the fingerprints he saw the defendant places fingerprints on the card in court the fingerprint examiner did point to the defendant and identify him as the man who put his finger prints on the card so the government to miss first of all that there is no air there is no constitutional lawyer in this case there's no implication of the fifth or sixth amendment right and any air that could conceivably be found is harmless this was a very limited testimony and the fingerprint examiner did personally identify the defendant as being the every person only has one a file and this was explained during the during the testimony it is true that one a phone number can only go to one person but it is not uncommon for an individual to have more than one a file and this is with requires that if you're going to cite a case in oral argument let us know that in advance i apologize when i was out of town on vacation when this case was decided and just return this week with a leave of the court i would ask either for the opportunity for some briefing before you leave the courtroom be sure and go to the deputy clerk and indicate to him the full citation of the case and make copies for all the members of the court as well as opposing counsel thank your honor with leave the court with the court like me to address or don't believe so you are and this is why because even though it was not alleged in the indictment this court has held in the past that when a jury makes a finding beyond a reasonable doubt on an element of a crime it can also presume that other reasonable steps that it had to take to make that finding were also found beyond reason find beyond reasonable doubt a prior removal before they can find the defendant guilty so the government's position is that they necessarily had to find that this remove on august tenth two thousand and four is removal they rely on it's the only one that's in evidence in the record thank you mr beers testimony at york two thirty eight the question presented to him was when you finished your fingerprints from the defendant after all in the mouth of the car did you pass the defendant to sign the card mr beers his answer was yes i did this naturally gave the jury information that he asked him to sign a card when the card went in evidence his signature was not there what was there was attorney refuse client signature this was prejudicial it was not harmless because again at trial the issue  identity and i think that there was no period of instruction given and so i don't think that this is an arc with this issue at all i think that it was very prejudicial to mr hoyer and it prejudiced in that trial if if his fifth amendment rights were not implicated then it at the very least  object on that specific ground your honor i objected in the middle of the direct testimony of mr beers and told the court that this was going into an area which was going to result in a constitutional violation under doral i did not object under six of them and over i did raise that in my briefs and i believe that i made the general i commit that there was going to be a constitutional violation of this testimony was introduced finally or i think that the statements were prejudicial because mr hoyer invoked when he was finally brought to the border patrol station and therefore the only confession that was presented at trial were the field statements so that this wasn't harmless error and that there was no specific finding made on the record as required und