charged with assaulting the officer in charge of barracks five a trial she wanted to defend herself by having the jury hear that the officer in charge provoked turn into a fight from the moment she arrived at the facility the officers targeted her because of who she was singled her out for differential treatment and then pushed her excuse me toward a steep flight of stairs because she proffered some evidence of both prongs of entrapment government in lack of predisposition the district court should have allowed the entrapment defense to go to the jury and its failure to do so is reversible error so one of the arguments the government makes is that even if you're right that the district court made a mistake on the question of inducement there wasn't enough evidence of previous of the lack of predisposition in the record to get you instructions so if we assume that the only evidence you're allowed to rely on for that is evidence that was actually introduced at the trial not what was discussed in the pretrial proffer but was actually introduced at the trial what's your best case for sufficient evidence of like a predisposition so the facts that came before the jury in terms of predisposition are you asking about the  or i'm talking about what age and talk about the jury heard ok so the jury heard both and saw the video miska margot prior to the assault that she was seated in a chair leaning back with her arms shielding her from the sun minding her own business the officer in charge approached her in stood over her the whole time there was testimony that miska margaux didn't yell then the officer in charge was the one that initiated the conversation she ordered miska margot to go inside the building and misc margot complied with every order to v so she was compliant during the initial course of her interaction with agent mulder view knows then when she was separated from the other women detainees taken into a building and surrounded by large male border patrol guards and shoved toward a steep flight of stairs that's when she reacted and swung agent toward agent all to be no sin assaulted her and so i think that's reasonable or that's some evidence from which the jury can conclude that she reluctantly resorted to violence out of fear for her life so  of if what we're limited to is what was actually introduced in front of the jury all of the evidence of like a predisposition comes from the same course of events of centrally correct look at things our position of course is that the district court made its decision i think where the government and  where we disagree is that the district court made its decision not only on the basis of the evidence a deuced in the government's case in chief but also on the basis of miss cargoes pretrial proffer and the district court's ruling is that page four i believe for sixteen to four twenty of the record and our position is that both parties in the district court were incorporating the pretrial proffer and that here what happened was that the district court actually denied the defense not just found there is insufficient evidence cherry support for the jury instruction  prevented defendant from putting whatever evidence of that defense a defendant on to do so i think that comes at pages four sixteen to four twenty and this the timing of this is important and so what happened here was that during the government's case in chief the government realized that if entrapment came to play then it would have the burden to disprove or to prove miska margaux was predisposed so it wanted to call predisposition witnesses in its case in chief it didn't want to run the risk of arresting miska margaux not presenting a defense and then being foreclosed from raising pre disposition at all so it asked the district court to rule on entrapment during the case in chief so is that was that was the context that led to the timing and then during the course of that discussion defense counsel basically asked for the defense relying on the evidence that had already come out in the government's case in chief as well as the evidence that had been proffered pretrial so didn't the court ask if the defendant ought to put on an initial evidence and that if and said now yes your honor but i think that the wording about is important so the court asked does the defense want the court to consider any evidence that may come in prior to rule in the defense prior to ruling on this and then defense counsel said i think the evidence of already in the record i sufficient and our position is that by saying evidence that's already in the record as opposed to evidence that's already in the government's case in chief counsel was incorporating her pretrial proffer i was the judge supposed to figure that out well i think the judge did understand that your honor because the very next statement the judge made is that on page four sixteen again so the parties the bow with brief the matter so the district court itself was referring to the pretrial proffer in the briefing on the matter i think at a minimum however this court has confronted a similar situation in a case we cited in the opening brief united states versus ybarra opinion and that is excuse me that is basically there the court said at six fifty seven of third one thousand insite one thousand and four it was a case where the parties again like here were disputing whether you see this was in the opening it was in the opening brief or on or this was a case where the parties were disputing whether the district court had denied a duress defense or whether the district or had allowed the defense to present evidence of duress but simply found there wasn't enough support to warrant the instruction and the court there said at page one thousand four the court believe it appears the district court didn't put preclude the duress defense prior  trial but because there is some ambiguity in the district court's ruling we will not read the less construe it as a preclusion of the defense and determine whether the pretrial proffer plus the evidence at trial was sufficient to warrant the defense and so essentially that if you read on it says  goes on to say that the difference between the evidence prover before trial and the evidence presented at trial wasn't dispositive that's correct your honor i mean it's not really the same here because you have a lot of stuff that was in the pretrial proffer that wasn't actually introduced in evidence at the trial well i would i would dispute that it's a lot of stuff i think the difference in terms of and do stuffs are some well the difference in terms of inducement i think what didn't come out at trial is that miska market was subjected to harassment and slurs based on her gender identity that age involving you know swore at her repeatedly that she wasn't given food on certain occasions and that she wasn't given gender appropriate undergarments that i think but what did come out was that she was denied medical care and th contrast to the other women detainees who were given medical care she was held in solitary confinement and essentially isolation for the entire week leading up to the assault there were she was singled out to wear a mask no other women at the facility were made to wear masks and then she was punished for not having a mouse with her and that punishment of course included essentially it involves you know physically assaulting this commercial as well in the pretrial proffer was there other evidence of lack of predisposition other than again the way since she was a young girl and that she was not prone to violence i see that i have about ninety seconds left if i may reserve the remainder of my time yes  during the eliminate proceedings district court repeatedly stated that she was not going to deny the defendant the defense the question about whether the entrapment instruction would be provided the district court submitted would be determined after hearing what evidence actually came out but in terms of an opportunity to present a defense that was never denied to miska margot at all and we know that not only from the district court's remarks at the motion in limine a hearing but from the evidence that actually did come out so the witnesses that ms were puffy just identified were actually ordered to appear in trial the district court did not deny subpoenas for those witnesses the two other detainees at barracks five nor did the district court den julie the district court in fact issued those subpoenas and ordered those witnesses to appear so that ms kamar go could if she wanted to attempt to pursue an entrapment defense none of those witnesses were called the trial and the to attempt to get into the conditions of her confinement so there were questions for example about policies regarding transgender detainees in your three twenty seven housing frustration suit gender detainees that you our three twenty eight medical treatment thirty one when the district judge said in the part of the transcript that fence counsel who did that or when the the defense lawyer said i think that the evidence that's already in the record is sufficient to warrant a defense of entrapment this is during the trial in the judge says all right so the parties of both brief the matters anyone wish to address it further so defense counsel basically said the trial attorney at that point was saying i'm relying on everything in the record in the district court essentially letter to believe that that was the case with what's your take on that it's just not faithful to the record your honor the briefing that the district court was considering was mid trial briefing that both parties had provided about the entrapment instruction that appears that you are five ten to five thirteen that was the government submission and then e r five fifteen to strive seventeen which was miss kamar ghost submission i think miska margaux submission is the most telling and what miss camargo submission during the trial before the district court stated  had considered the briefing was considering whether the entrapment instruction was appropriate or not that briefing at b r five fifteen to five seventeen is entirely about what evidence at trial supported the slight evidence necessary to get the jury instruction margo's attorneys wrote for example in this case there is at a minimum slight evidence of inducement if not more and the only things that miss him are those attorneys identify is the fact that mr margo was made to wear a face mask and that she was shot there was nothing about the conditions of confinement there was nothing about hormone therapy there was nothing about undergarments there was nothing about slurs of course because none of that was a listen to trial but there was provocation here she was are mistreated in this context and i guess what i'm looking for is what's the dividing line and when is enough rope provocation enough to establish a well there was no provocation in her treatment what came out at that her conditions of confinement provoked her all comes from pretrial filings it was a self serving declaration that miska margot herself provided in connection with a motion to suppress none of those facts were before the jury the only facts that were before the margot identified in her pleadings at the trial to support the jury instruction was the fact that she felt that she had to wear a face mask when she wasn't sick and that she had endured a shot or a push inside the facilities after she was asked to leave when she became agitated and destructive those facts together are insufficient as a matter of law to prove prove inducement or provocation that would ixtapa the government from pursuing a prosecution for an assault on an officer m camargo punched in effect to use excessive force in relation to the shove that was provided and therefore could not pursue a self defense defense what she is trying to do in light of that is suggest that even an reasonable applications  force in response to for example a show of is nonetheless excused because she was unhappy with the conditions of confinement that simply is not the state of the law nor is it what the supreme  in jacobson when they were describing me and trap meant defense so in this case i think the record is very clear that ms come margot had an opportunity to present whatever defense she wanted and in fact i think the district court went far beyond what it had to in giving law to to miska margot to raise these sorts of issues before the jury she was unable to do it with the witnesses that the government had produced and when she was unable to do it i think ultimately her attorneys made the  decision strategic call not to present an entrapment defense because it would be in tension with and dilute the force of her other defense which was i didn't do it it was either reflexive or i didn't actually hit and strike the agent the supreme united states had indicated would come in against her and that was propensity evidence involving a prior two thousand and sixteen arrest where she resisted arrest and became combative as well as testimony from a detained tension facility officer at the m would indicate that miss margaret did not follow the rules and was not compliant so for those reasons we think that ms can margot obviously have the opportunity to present a defense and that the district court did not abuse its discretion in determining that there was not even the slight evidence of indu or lack of predisposition to support a jury instruction unless the court has any questions the united states its thank you thank your hono so like to turn the court's attention to page five twenty of the excerpts of record i think that's the best evidence that the government itself in the heat of trial understood that the decision on entrapment was being made on the basis not just of the evidence in the case in shows the government itself was recognizing that any evidence that was to come in in the forthcoming defense case was part of the analysis in the forthcoming defense case was the subject of misc margo's pretrial proffer then when the district court did not allow the defense obviously she didn't put those witnesses on and so so i think that does support that that it was the denial of an if defense not just simply miss carmichael electing to arrest the instruction on the basis of the government's case in chief as for the government's characterization on appeal of the evidence that actually came out at trial it's not simply that miss carter was made to wear face mask and push i think the government really does minimize the evidence that came out at trial and takes a kind of divide and conquer approach it's the fact that  mentioned she was held in solitary confinement she was denied medical care and there was evidence at trial but that was not how the other women at the facility were treated that she was the only one she was singled out to wear the face mask and so it wasn't simply this issue of the facemask going to push it was her differential treatment in comparison to all of the other women a trial and of course the jury did hear that she was the only transgender woman at the facility at the time so for those reasons we would ask the court to vacat