towards the end of the rebuttal now what does the defendant say about how she got to mexico you heard on the statements that she said nothing she said she was taken by a friend and wouldn't provide any further information end of the first interrogation section session and two that her repeated selective in vocations during the second interview session should not have been admitted into evidence and should not have been argue by the government turning  to whether or not miss klein invoked her right to remain silent at the end of the interview session this is air that was playing opposite me to my hair specifically asked you have nothing further to say then and again shaking her head is that's the story you want you want it you want to excuse me that's the story new to us you want to stick with ok meaning he acknowledged that she had just she comes back and starts talking again the second day well that's where the agents don't scrupulously honest they make no state needs even acknowledging it at the beginning of the second interview session they just come on and say we have more questions for us are you willing to talk to us they can't just come out and say that they have to say they asked at least make a clarifying question for example you know you indicated earlier you had nothing further but at the end of the first statement she had said anything further to say that she indicates now so that's just an example of the agent pretty much bulldozing over the envelop prior invocation not even acknowledging that it existed and i think it's really particularly important to review the entire videotape from the first session because i think surrounds that minutes into it is when the miranda taking it in context particularly from the initial statements her demeanor and her actions of remaining silent through a majority part of it and then confirming at the end i have nothing you have nothing further to say you know that is a clear  confirming that there's no further questions at at all even the k t did nothing for the say and then maybe some ambiguity i mean maybe it's better practice to say something like are there any details you want to go over so that's not an implication but if you comment on the person's right meaning what they have to say that should trigger the fifth amendment protections but even if this wasn't even if she did not  yes because during the second interrogation there were three selected in vocations a right to remain silent towards the middle of she's question about the individual who mr klein saw in mexico just i believe seconds later he then starts asking who took her down a max mexico misapplying responded i don't want i'm not really i don't want to involve him you know a male friend of mine took me down there i think break the i don't want to involve her him is selecting invoking these she's insane she's not going to give up a name but if there is any i'm ambiguities cleared up because that is the agents to ask questions but again wasn't a male friend or female friend then she answers a male i just really don't feel like this bullshit i know you know i think that's a clear indication that she's not going to get into the day so that the second in difference because this is part of the government's case that because she wanted to tell who who was going down to mexico that this and it implies that she's guilty and that's exactly what the government argued during closing argument now what does this industry about how she got to mexico we heard in a statement she said nothing she was taken by a friend wouldn't provide any further information there directly stating because she won't provide information she must be guilty and that her whole story doesn't make sense and that's part of it in this this is a close case without either of these statements or the government arguing silence from guilt all you have is mr klein's in a car it's she's not the registered owner there's an individual that's hidden compartment that cannot identify him as klein was placed in that vehicle by another person the material witness claims that she was in the car for approximately forty five minutes i believe miss klein statements was she had been driving the car for about two hours somewhat consistent and the government's only other evidence was alleging nervousness this was based on its client looking straight ahead and chain smoking and remember she's in mind pre primary waiting to get into the expected inspection both you would that it's reasonable that someone that is a smoker would be chain smoking in line rather than smoking as they're driving and looking straight ahead to the inspection the rather side to side about what's going on around them so many at much of the government's evidence was put to question and was adamant in her denial she did not know that there was someone in the car and it's plausible that someone could be duped in this way that they just purchased the vehicle for four hundred dollars and that secret compartments and this is one of those cases that that's when i will and you have to lete look at how the stress to the jury not only do you have the prosecutors calming you know she when providing any information but the district court even validated that reason by in overruling the objection the district court says ladies and gentlemen your exclusive judges of the bat you looked at the vehicle  in this case in there there was some questions about pre arrest silence basically that when they told them how much drugs was in the car and in have a reaction here you had interview seen at least three closing argument factor plus the district court judge telling the jury that the government's argument so ok and i think if you look at this the strength of evidence as far as the lardy gomez in here it's very gomez the individual could be set up by a prostitute that only had about ten or fifteen minutes to give information about where the clients har was and that they could then mechanically change the gas tank and put marijuana into a gas tank it's entirely conceivable and plot just as plausible in this case that mr klein thought she was purchasing a car and driving to the border you know in both cases there's some inconsistencies and it may not be compelling evidence but it's enough to meet that or to defeat the government's burden of proving beyond a reasonable doubt that these may please the court christopher alexander for the united states i am the trial counsel in this case and certainly would like to have made this a much more clear presentation during the closing argument regarding that statement about nothing but what occurred during that statement is you see the next statement that follows is a comment specifically on the evidence that was offered those comments were directed at the evidence not based on the silence of miss klein now getting back to the specifics regarding the invocation argument by the defense first whether there was implication at the conclusion of the first interview this is an issue that was never a thought for this record is only being raised for the first time on appeal there is no martin is pressing the most to suppress wasn't aimed at this argument that there was a selective or that there was an implication of the conclusion of the first interview what if there was a motion that was filed to suppress but it wasn't geared at that specific  claim that there was an implication at the end of the first and i think very well that's a very good question because when the district court judge asked defense counsel after reviewing the tape whether there was any miranda issue the defense counsel said no now what you have here is the defendant being it finds of their miranda rights waiving those miranda rights in writing and then electing to make a statement now at the conclusion as judge moore law points out at the conclusion the defendant is asked do you have anything further to add and the defendant at that point indicates no i've got nothing for the add well that's not exactly what i said well enough you just paraphrasing your honor and it's sort of an important paraphrase on well it is clear it's some point she asked to leave but the purpose of what she was asking to to do in leaving is unclear why was she making that statement may  basically correct and then it's the may i leave or may i use may leave correct and at the beginning of the next interview even if there was any ambiguity the agents clarify that ambiguity regarding the defendant's statement what the agents asked was a clarifying question this is not a question designed to elicit incriminating evidence what the agents were trying to do was to try and find out whether she was willing to continue to time consuming each is in order to obtain and added to a videotape the videotapes themselves are recorded at real time so any change requires that you make that tape in real time for an example if if an interview is forty introduction of entire tape because it's too much travel and it takes too much time no no no that's that provide some foundation for why the edits that would have been necessary in order to introduce the first statement would have been extensive the defense had already objected to the introduction of any evidence regarding the defendant's methamphetamine use the next issue which the defense has raised in other cases is whether the agent accusations regarding how much time this spent at the port of entry whether that information should be admissible and that was an issue that was never raised but it would be a question as to whether that would be air the agen opportunity to review both the first statement and the second statement and found that there was no instance where the statements were taken out of context and then even to provide that additional safety  the united states intentionally did not object to the defense's inquiry regarding that first statement all of the information that the defense says that they were unable to present as a result of not playing the tape they got  they asked the agent madam wire about all the things they tactics her denials all those things were asked and eight officer none of my or provided responses consistent with what the tapes show the defense was able to ask whatever questions broadly they wanted to in order to establish the things that they've they they needed to establish the arguments that they made the district court i guess the original question now is why did the government what was said no it's not an issue of the pool of completeness it still remains hearsay without an exception and the other the argument now is that while we wanted to introduce it in order to establish demeanor while they were able to in retrospect maybe that would have been the best course but looking at whether that the district court found that there were two separate interviews one interview that occurred in forty five minutes later a second interview occurred yes and we reviewed that for clarity finding for clear well certainly i think it depends on what the challenge is if if we're looking at whether the specifically what one of the district court to the district court reviewed the tape and if the defense wanted to put any of this into dispute certainly they could have done so by making it up more of a record as to what specifically they wanted to introduce which they didn't and what the whole thing meant it but that's just it if they were permitted to argue that the exception which was the rule a defendant would ever would be able to introduce any videotaped statement that miranda warnings two or as it seems to me this is part of one entire interview she stopped talking at one point a rest of europe out of that area asking her questions again and she didn't really seem like town anchor types but well the problem is what if if we look at the statements in that context again it expands the the  hearsay rule exception to basically swallow the entire rule for any any videotape or audiotape statement it would automatically be admissible as defendants audible would be able to introduce their statement at any point first interview the were married to mornings were fresh in her mind the agent was the same two agents that participated in the second interview and they asked her are you still willing to answer our question and there's at that point she's she knows what her rights are she's been advised of those rights and she signed a written waiver saying that she is electing to make a statement so that makes them it makes it more likely that she was aware she knew what she was doing and there's no need to revise for miranda during that second statement because she knew what she was doing and she'd like to continue to provide statements and what was interesting regarding the the the challenge for the second statements is that at the conclusion of the interview something that's not cited in the reply brief the agent's office read my ask again are you speaking with us voluntarily answering questions at the beginning of the second interview she says the as and at the conclusion of the interview she's asked have you made all of these statements voluntarily and she again says yes well you know let's let's take your hypothetical about the  multiple interviews and it strikes me that in some cases that would be highly relevant uses the say start off with the very alerts defendant on tape who is answering the question in a forthright manner and there's another interview that's done some hours later and assert in a fourth you put in the fifth one that the defendant's tired hankers looking mumbling looking terrible and then and now the defense wants argue look i mean this person was interviewed over a series of  many hours and this was the first one and here's the phone that's going to mean seems to me that's relevant in here is there is a wait in which to introduce those prior interviews have the defendant testify sure sure have a break it wasn't a situation where the agents were sitting there taking a break the idea was to conclude the interview and what the agent said it to beginning of that second interview is that they had some additional question things that they wanted to clarify and that's what they did they asked those additional questions during the course of the second interview was the same questions and yes yes they did ask some of the same questions but they what they were trying to do was trying to get the specifics that they didn't get in the first  to see what she which she ended up doing was she said were guarding those allegations for whether they were selective able to patients during the first question and answer she was asked about if she every recording that they have i gather you it was an editing problem that was not a not a tactical decision most of it when you when you look at it from a performer practical standpoint and from a legal standpoint these were two separate interviews the practical point of trying to edit the first interview to make consistent with what the defense would be requesting as far as what would be admissible and what would not be admissible at the time of the challenge being made which was as the jury was was being impaneled would make it impossible to make the edits necessary not at all really i mean i have to do is have to move on or and i mean now you've got great editing know well in this was that this was the problem do when the first when the interview was played in its entirety the defense made a request to redact information regarding the hospital and the use of controlled substances going the second interview just mute that when he goes by well it in the course of a forty five minute interview it's very difficult to do to try and time it in the make sure that you're going to be able to do that the other thing is what is the jury going to think we're guarding the edits that are being made in front of them what what information is going to be excluded and then you have the mouth moving with the with the jury being able to some of them pass and being able to anticipate what is being said you've got to take it it that's the only thing that really is at issue here as well you have but you have the defense raising these issues regarding the what should be included and what should not be included right at trial onus should be on the defense to raise these issues sooner i don't disagree with you on that in particular and i think that you are trying to trying to have a clean trial i mean i grant you that minus admirable but they should just give the new button to the defense counsel model let them be responsible for exercising the stuff i want to and that's you know again that leads to news for the problem you don't have the district court ruling as to what what actually is able to come in he you know once the tape is edited the district court needs an opportunity to review it to make sure that it that the edits that were were quested by the court are in fact have been made so again it provides that that additional time period i necessary in order to ensure that you do have a clean trial and the the the bottom line regarding to the first and second interview is the first interview is hearsay without an exception and the defense would argue that it that it they argued in the district court were trying to introduce it in order to establish what tactics were used in order stablish my client's demeanor right they got that information out through officer net my but you just said that's not why they're trying to do  right it's difficult to predict what decisions will be made by the court what we had here was a situation where you had a videotape two interviews you just report found that both interviews were separate from the district court found that there was no issue regarding rule of completeness and that the and this finally regarding the information applied to demeanor if anything the videotape would have been cumulative my right to remain silent or have i answered that question and that's what klein did during the course of her interviews she was asked about who is this friend that you travel to mexico with and initially she she she does seem to indicate that she doesn't want to answer the question but then she goes on to ask the question it's a it's a male friend during the second quarter second go around regarding you know who she traveled to mexico with she's asked again about you know how can how can we get in touch with this person and again she seemed to provide some resistance but then answers that she doesn't know the name of the person that you travel to mexico with she says i don't know so she's answering the questions that she that the defense said klein is arguing now that she invoked selectively invoked her right to remain silent how and how can that not be ambiguous climate is answering the questions that she says that she has been focused that that's true all kinds of statements that are made after and because i don't want to talk anymore and i want my lawyer and then you keep asking questions will  answering that's that's the problem no no agent asked another question no agent asked another question after klein began making these statements she's making these statements of her own free will continuing the conversation it's not a situation where the agents are asking her questions and in some instances the agents are actually saying ok raising their hands trying to stop her from saying anything further  certainly difficult but what you have here is that the the agents when when they ask a question she says something that ambiguously could be could be argued as a invocation and then she provides the of begin by commenting on the last subject that no agent asked another question after mrs klein selectively involved remember after she made the comment amy i just really don't feel like this bullshit you know and that's regarding not the person that took her down to mexico again age and then meyer stopped question on that subject again at the very end of the interview it's agent byrd that starts again and he says and it's very important that we talk to him by law and you don't think we could talk to this person who went into mexico with how would we be able to get in touch with this person so he does start questioning on the very topic for waging this klein said she she did not context if the government's going to put in the second statements the second interview session we absolutely want the first one and again to show her change in demeanor and the actions of the agents that are compact somewhat dictate that demeanor i mean at the beginning of the tape she is openly answering questions again i don't care what the answers are are to those it just shows she's willing to duck as the agents badger h you know this can't be true it doesn't happen this way in my fifteen years of experience this absolutely doesn't happen that's why she gradually changed and then you know they say ok take you away forty five minutes later her hair is completely different and she's frustrated with the agents asking her the same questions over again and that explains the demeanor that she has in that the meter was about the government was wrong why not they said in opening statements you're going to see th the demeanor judge for yourselves well they're going to make that statement and in opening statements we should be able to explain that demeanor by what she was subjected to and this doesn't go to the truth of what she was saying  the governments are saying well they just want the hearsay x or the record ninety one and ninety two clearly go on for a page and a page and a half explaining that no it's the conduct of the agents during the first interview session that we want and to explain how why she may have been more invasive during the second interview is because of what she was of subjected to during the first so there's an absolute record that we were arguing this very theory that has nothing to do to with hearsay that is not offering it for the truth of the matter when this klein was saying and that means it is the novo review because we're i don't believe that there are any redactions asked of the first tape from my recollection we are asking them to start at the point the  i believe there was heavy you having taken drugs over the last day or so during the miranda i'm not sure if there was any more it was definitely minimal compared to what's at pre miranda their discussion of in this client's drug use that now you problems here is the district court didn't see that we were asking for the demeanor and evidence at all and that we really wanted the conduct of the agents and we had no objection for whatever the agency said on this we wanted that to show your honor had asked me earlier about the really advisement at the second interview and the government is making the argument that this was just a clarifying question i'd like to read a quote from lopez d s there is a cr distinction on the one hand and inquiry for the limited purpose of clarifying whether the defendant is invoking his right to remain silent or has changed his mind regarding an earlier assertion of that right and on the other hand questioning aimed at eliciting incriminating statements concerning the very subject on which the defendant has invoked his right i think the introduction from the second tape shows nothing about a clarifying question and it is just we would like to ask you more questions