pallant cruiser scotto in this case i would first like to address the trial court's error and prohibiting mr cruz a sculptor from presenting the evidence from his defense investigator which would impeached the primary government witness at trial it's been our contention throughout that's the trial force limitation on the presentation of this evidence violated mr cruise's scotto sixth and fifth amendment rights and goes to the core of his constitutional rights at trial the investigator was called specifically to impeach the case statement on whether or not he was yourself because of the t and muscle problems and the ability to remain focused while on duty for that long most jurors and myself included i have never done an eight hour shift a surveillance those sorts of factors do not pop into my mind when i think about whether or not this person is is lying when he says i was you know i was looking in this direction and that direction the process the prosecution in their responding because of the credibility of the agent being open to dispute and yet the trial could you make an offer proof in connection with your i certainly did you with a brief summary and then the summary is that he would have testified that you always want to make sure that you position your vehicle in the direction that you're looking that if you position your vehicle in one direction and then you proceed to look in another direction it's going to be impossible to continue that for an eight hour shift you're going to have mu to occur to him in the first place and that's what i experienced in this case was that as trial counsel it didn't occur to me initially until my investigator brought it up to me that this is implausible that you would position your your car  direction and then you would be surveilling and another direction and he has a right to present that evidence that's really the bottom line he has a right to present this evidence he has a right to put on the best case that he can and the case agent yes and i also asked him about his expertise in surveillance and he specifically mentioned how many surveillance cases times he's been out you know hundreds of times so the allegation that he was unqualified there was no request to take him on why dear the objection was relevant to the objection to i mean the response of the trial court to the relevant objection was  was improper and she wasn't going to allow it but she made the reference to the other question because i was asking both how would you normally position your vehicle when doing a long shift to surveillance and then when i was shut down and that i said you know you heard the testimony of the agent was there anything that that struck you as unusual or problematic about that testimony trying to get at that same evidence that it's it's a reasonable and workable as the surveillance agent to point your vehicle in one direction and be looking and the other of the border this was just during the examination it wasn't characterized as you at that particular time and actually it was after i had moved off of his qualifications and into the actual questions relevant to my inquiry which was added to the surveillance  agent vote you know it was the case agent in the primary agent in this case since the only issue at trial was the official restraint issues the pacheco the prosecution  it's routine in drug cases that we have the da agent take the stand in rebuttal and testify as an expert witness on surveillance and counter surveillance about what drug dealers do and do not do and that is never excluded because of lack of notice because its rebuttal impeachment question will you you heard the testimony region regarding how he was border patrol vehicle with vision and where he was looking was there anything about that that struck you as odd o the first landing was speculation which would indicate to me that there was no foundation upon which this witness could testify and secondly the court did state that for three which is an und you know if you were surveying this area you know what would you do although i don't think that would be speculative either quite frankly i don't think that the question called for any form of speculation i was asking because there's the east west bank and then there are fences along the actual border of the channel that run somewhat north south but since the channel itself curves around there direction curves as well there are any fences along the enclosed area exactly and along that triangle so one hundred yards down from the border up from the border is this observation post right that's correct there are the you can and you can just walk through the channel you know unimpeded but you can't you have to you have to pass that you have to pass that border patrol permanent post officer who's who's right there not there but there are some concrete sort of ditch which marked the international boundary line and he had already crossed that line when the agent claims he first saw him that gets to the other issue of whether or not that was indeed the first time he saw him but the asians testimonies the first time you saw him he was one hundred yards and he was running alongside the fence as your honor pointed out he had not yet passed beyond that fence area and and  to an area that was free from these obstructions and the officer was on the other side of the river pat and drove across the driveway and apprehended mr cruz's scotto and he did exactly what he was supposed to do he served as the primary line of defense which he admitted that's what he was there for he was there to make sure that people didn't cross through the border there is a post there twenty four hours a day seven days a week it is a prominent border patrol post at that result for surveillance where no one is around to constitute official restraint where in this case you have an actual armed border patrol officer in his vehicle and he's there stopping this guy who my position is that if he hasn't passed that point where the post he hasn't entered three of official restraint that that post position which is interior into the united states just as the port of entry i now that post position forms a kind of line there and until he has broken through that line he has not broken through free from official restraint it's like an invisible fence if you would like an electric fence if you will you know that's there until he can't scales that particular imaginary fence he has not broken free from the restraint which is the presence of the arm and their position their forms that sort of restraint and they may you know dip down to get their coffee but if the person has not passed by that post then the person  another one hundred yards and you order for your heart right well i think it would depend on the facts of the case i think every case is facts and specific but here we have a very limited area and we have a permanent  post there just a few yards into the united states right where that the fences are and so i think under the peculiar facts of our case that that permanent post does form the border there and i understand i'm over my one forty two open point directly at the gap and then to move on to you place your vehicle in the direction that you are going to watch when you're going to do an eight hour shift a surveillance i do not believe that there's any undue prejudice in this and it goes directly to his defense given the instruction of the court on pick checco he was limited to attacking the credibility of the agent who was on duty there to argue that the agent had actually seen him and this was really his only chance to do it and it wasn't going to take very long the trial only took a day and he has that sixth amendment right to present some evidence official restrained doctrine and we dispute that but that was the instruction it was critical that he be able to argue that despite the testimony of the agent he really didn't must have seen him cross the border since that's where the vehicles are positioned and that's really going to be looking when you're an agent on duty at the gap and in the sense that he was precluded from presenting that evidence and he was left with non evidentiary closing argument at one point it was either south or south west and then another point it was west yes he did not riyadh did not agree with me that he pointed his vehicle directly sound but that was another area in which i argument that because of where the agent was at that time and where he arrested cruiser scope which is running along one of those fences along the the bank of the of the cha