or found and that is the crux of the first issue of the case mr prior to the trial government elected to proceed only on found an aspect of the charge however when the windows committed the entry aspect of the crime or found an aspect of the crime i knew then i knew that the government had dropped the attempt to issue you saying it also dropped the entry that is correct is duplicitous over here why does that faulty instruction correct the problem i mean i don't i don't see he made an objection i don't see why it but i guess the argument  though it tries to cover multiple bases and here we are there just arguing the watching the case argued before the court it seemed like this this is a recurrent problems the way but the that's the case law is that these are three district crimes and the government  difference can it make in this case we're not talking about attempt here we're talking about three or found and and found the way our case law has indicated that that reentry is part of being found in for highly depressed and states that there is a we need to commit the crime up found in with that entry so he doesn't make a difference in this case the jury could either determine that he was either found then or other other portion of the jury could determine that he so that was a misconstruction on the part of the trial court with regard to the facts of your client's case and the defense he put on what possible difference could it make i think that we were speculating as to what the jury could have decided and we don't know witness has something to say and your client refused to say so is the judge's post or a grant every subpoena that's asked for just because i think this guy might have something to say but i'm not going to tell you what it is i think the judge should exclude the prosecutor instead of my name is joe color and i represent the united states in this case i was counsel and trial court as well this case is about playing their indictment did charge entry attempted entry and being found in the united states the government cured of the alleged duplicity in this case by electing that found in charge among the three possible ways of violating the statute that were set forth in the indictment do with romero's martinez which is we don't look at the evidence we don't look at anything if it's duplicative and it's not sure and one of the two magic ways we reverse what do you do with this in this case the evidence was overwhelming that's not my question my question to you is what do you do with our case that said we don't care about the evidence we don't care about exactly that way and that's why i'm saying i'll take your word for it ok because in that case the court mentioned the existence of possible jurchen fusion whether the defendant in that case actually transport things to point out here number one as i stated this court has held repeatedly that beings being found in the united states cannot occur without an entry and in those circumstances the found prosecution you can find perhaps that attempt would be a separate and distinct charge from the found in or the or the entry following remarriage martinez but limit ramirez martina's to those particular circumstances because attempted entry and entry require different prove intent and i would i would respectfully submit an obviously this court is bound to follow remarriage martina's but i would respectfully submit that that decision was wrong  my remarks to that but getting to the two of france's the two methods as ensuring file aiding the statute entry and being found then they go hand in hand in every single case you cannot have tree without being found in the united states otherwise you can't have an answer without being found in x that's why you have three votes you the government can't prove it but you can't well you could you can prove he was there and he left but you didn't catch him in the united states but you're right with regard to the other way around which is one that matters here you can't have any found and without an entry that is absolutely credit doesn't have to be an illegal entry and you may not have committed the the entry i think it does you entered doesn't have to be if someone comes in illegally then he's not going to be illegally found in what you can't have that somebody enters in voluntarily what you have to prove that he didn't come across the point of a gun is not correct that is correct we have is not if if your if your unconscious drugged out and brought into this country and you have not committed the crime in the entry involuntary involuntary if you wake up and decide i think i'll stay here and wander around in the country for the next two years you can still be found but you certainly had to enter that is correct become found in the united states and in the former case that you describe someone who enters the united states and then leaves without being found the government must prove beyond a reasonable doubt the identity of the person who entered and then last and without finding somebody in the united states is wholly unrealistic to expect that the government would be able to charge that person and prove that charge beyond a reasonable doubt even if it came in and talk and talk to the bishop then the priest and said you know i'm  just snuck across the border and i'm here and i want you to know that i want to stay in this country forever in the priest as well let me let me call in the rest of the parish and they'll come be to obtain that person from the place to which he left and if the person were to come back into the united states that would be the charge that would be in front of the court and he would show that an f b i agent grabs him and drags them across the border hank you know we know that think and kind  the realistic scenario is this the defendant crossed the border he came across the colorado river where it was dry agent pedro gone as found him in the united states that is how the evidence was presented to the jury that is how the government explained the case to the jury the government explained the case in the opening statement that it must prove that the defendant voluntarily entered the united states in order to prove this found in charge the government came back in the closing argument something that was imbedded in the found in and that the jury must find the entry in order to convict on the found in room probably are those just with is the argument is based on the indictment that it was duplicitous while the defense makes that argument probably the government made the election of the charge which is exactly what is set forth in remarriages martina's and again humanity which was their rule twenty eight a letter that was the situation that happened however in that particular case the verdict form only instructed and the instruction was the jury was instruction on