of mr mendoza i'm going to address the four of forty issue the failure to strike the risk of death allegations and the exclusion of the state in the present intention with respect to the floor going to get the truck he is he gets the drug from his good buddy chewy whose last name he doesn't know an address he doesn't know he knows before he gets a truck he goes and uses the methamphetamine he knows he's too late to help the family but he gets the truck anyway he gets it and his good buddy chewy now gives him a truck with no gas gauge down doesn't tell him that the person is in the truck takes the risk that your client is going to try to gas up the truck t killing the illegal alien and indeed subjecting him to possible manslaughter charges not only cutting out surely three thousand dollars turns removed so that your client shows up at the border sweating doesn't kno heat is down never tries to fill it with gas and now you're saying the risk of death allegation is what it is harmful or and distorted this whole trial pretty much covered well i wouldn't character i'm not going to fall for it but i'll tell you your conclusion is correct yes i think that is true and i think that that there are a lot of responses to some of your eyes characterizations of the evidence for instance mr mendoza testified that he believed that there still was a benefit to be gained from his family for him getting the car even though he was going to you're correct he was going to be late and in fact his family testified that the move actually extended into the next day so i think there was very good on his son testified that he was already man of the news to write me didn't show up  definitely angry with him you know there's no question about it he didn't show up on time but there were still value for him showing up when he was planning to do it now i think that the thing about the if the construction of the compartment that your are brings up and the fact that what i agree that we have to live with that i think that's what the shine in our case talks about but i think the reason that we had prejudice in this case was that the anglians actual subjective experience of the ordeal was put into evidence and that was not that she was in sort of inert when she was kind of pulled out i mean nobody hit that heavily as it was true in the other case in here that where she was in the car was going to come out because of that didn't really go to the knowledge i mean are you really can do that but they can't draw an inference from is the testimony that she was suffocating that her feet were burning and that she smelled gas that all the stuff about her own subjective experience of the terror that's not relevant to the decision as to what sort of driver you're going to hire drive your van whether or not you're going to use a knowing or unknowing driver because those are events that take place after the arrangements to drive the van take place and i strongly disagree with your honor's suggestion that this emphasis as a this was an emphasized and i would go just emphasizing your good down below the car you twelve inches above the ground i think that goes to the entire piece of all the evidence that they put in they argued that the instructions that were given to the jury emphasized that telling them to find out whether or not mr meadows intentionally or recklessly created a risk that the special verdict form told them to do the same thing so the jury was clearly focused on that aspect of the evidence and the government's post hoc rationalization for putting it in that it was relevant to intent if that had actually been what the evidence had been offered for the could have been learning and knowledge to knowledge and then the could have been limiting instructions given to focus the jury on that use of the evidence but that instruction was never given because it was improper given the fact that the to a jury and was determined beyond a reasonable doubt yes yes i am and i think you're going are saying was what the district courts call right at the time it was made probably given the adeline decision but the bottom line is is that booker came along afterward basically a line approach was not correct and that one of the alternatives in book or in book or two is one one thing we can do is keep trama jury on the on the on the guidelines we have as we make an advisory we're making advisory if we have said judge we want that we want our six in our rights vindicated to have this guideline determination that i would agree with your honor but we made a motion to strike that allegation it shouldn't run out booker makes clear now and it's apply it's applicable to cases pending on direct review that the district basically the same fact pattern we have here except that instead of drugs we're dealing with aliens but it's the same type of analysis and i think that the key passage in garcia rosko says there is no logical basis from which to infer that garcia  ko knew that the suburban contained drugs because drugs were found in a car in which he was previously a passenger so that it regas the conclusion was that where there was cocaine in the roof panel and it also true as were the marijuana in the door panel of a mr mendoza running away from the scene and by the way garcia roseville ran to his passenger incidents that doesn't change anything contrary to the government said in its brief and they had another witness who testified that he processed them later on the only witness who actually testif mendoza being in the car was the witness who was called during the defense case who testified that he thought the mystery man does it was intoxicated and he had to start engines on that guy didn't say anything about where the alien was in the car he couldn't remember the car basically all he could say was that the car was was small so he didn't say anything about the alien being in a compartment didn't say anything about the alien being concealed in a manner similar to what happened in this case so i would suspect we disagree that there's any showing of similarity here at situation where you know for me once shame on you fool me twice shame on me and that's basically he should've been suspicious based upon his previous expect but if you look again at garcia rosko and again on the same page thirteen zero four whether mr garcia rosko shou suspicious of the request to drive the vehicle across the border is a separate issue and not logically related to the prior incident so the idea that he should have been suspicious based upon his previous passenger experience is directly foreclosed by gar rosko so you have both the knowledge aspect and that he should have been suspicious aspects both close for close by garcia rosko and i'd like to talk a lot about the really bad evidence in the case i'd like to talk about the good evidence in the case which  correct ok ok great thank you i think this is a case where the defense put on a strong defense they had a defendant getting up and testifying that he wasn't guilty of the offense the reason that he went to mexico was the barrel van you had two family members come in and get his father didn't show up didn't you really get all of the probative information you needed to go to the jury on that without further gilding the lily i mean it was pretty clear that the son was corroborating that the father was getting the truck to come in and help him out i think the thing that that's really key about that is it gave the jury a really stark choice is mr meadows a really masterful criminal who goes to the trouble of cynically using his own family by planting the seeds of his defense even before he  contender could even have heard it from the lawyers after mr mendoza's arrest but the bottom line is when you place that before the arrest that makes mr mendelsohn extremely careful criminal if in fact he is a criminal but anyway you have a situation where there is a defense it's put out credible people coming in and corroborating the defense in the case so i think that there is there is no argument here that the air is harmless i still have two minutes left if i could reserve i would like to remind us we are from the government mendoza received a fair trial in this case he was able to present his theory of the defense through his witnesses he chose voluntarily to take the stand and he testified to his story and to his denials knowledge the jury consider that testimony and they rejected that testimony by finding him guilty but defendant in this case now is trying to complain that he did not receive a fair trial that he was prejudiced however on each count that he's complaining of the record got knowledge that poker caused a change in the case law and that the decision to send that special allegation to the jury would be incorrect at this time however my position is that that respectfully don't think so and the reason being that the instruction that went to the jury was limited it was one part of the jury finding to first had to determine whether the defendant was guilty or not only then were they instructed to consider the special it affected the verdict here in this case however the government's position is that this evidence would come in in any event and the jury was going to hear this evident and they heard the evidence today how would that evidence of come in about her and i would know that that was actually fairly limited testimony right but what it did go to in terms of the element of the crime what did it show it's the government's position that that went along with the design of the van and a special compartment to show that a unique nature in this is really the bottom line what distinguishes this type of case i think from other forty four b cases that talk about drugs the unique nature of having a human being being smuggled changes the evaluation of the case because a human being with a buddy close friends the lows and drives a car he gets in the car the information about where the compartment was how the gas tank would be filled all of that would be relevant to his knowledge and i understand that argument but how is what she was that she's in there it goes to he has knowledge because a smuggler would not place in the chair a witness in those kind of conditions without telling a driver that they're in those kind of in that type of compartment with no padding that size that far off the ground with too little air holes is going to have those experiences so i think only the owners of the crime know i mean i understand why it's relevant in the context of this case because you were charging the you putting out that issue in front of the jury for a different reason but now with booker and going back in time it's a bit unfair but on the other hand it seems a little sick for example let's assume we just marijuana in their same case  it would make any difference i mean the question is designed so forth i just don't understand the the argument that her extreme situation is relevant to showing his knowledge when she's context of all the evidence that was presented that this court can conclude that that evidence by itself that additional evidence that a material witness testified to her subjective experiences so far tainted the verdict in this case the cause reversal because the jury heard all the evidence about the design of the van and they knew that just just the actual the driver driving that van with the gas tank on the it's completely implausible to think that he's not going to pull over and try and fill it up and he has to know that he can't do that or the entire ends of the smuggling operation are immediately defeated in this case so in the context of all the evidence that was presented i would submit that that limited evidence which was not unduly emphasized during the trial did not paint the jury's verdict in this case you know you didn't let the subject a whole lot of discussion closing argument well it's been a subject i believe that the closing argument and i did give the closing argument and as i recall and for me doing the record my focus was more on the design of the van in a closing argument and was the fact that this fits the unique design which is really a design that could only put in syria when it's at risk under the circumstances where an unknowing driver the first thing they would feel would be to fill up that mean i i'm responding to your ignorance of what just came and briefly did wouldn't play consideration the trial now you're trying to prove beyond a reasonable doubt that there was a substantial risk of death in the case and the jury did find beyond a reasonable doubt but the address statically the special allegation my closing argument it was part of my burden of proof at that time so i didn't bring that to the attention of the jury however i still think if you review the record i mean if you the closing argument you'll see that that the focus of the closing argument was not the material witnesses testimony about her feet burning and her being done a but i recall that was an instruction to the jury then to they had to find guilt before they reached the to the issue of of risk right and that they were separate but i wondered whether there was any discussion about in order in which you can say they were for how you use that evidence and not to use an appeal i think the instruction was simply that you know that the order was s jury's verdict because a right had to go in order to make the judge's findings it's true of course they have heard the evidence and they have heard some comment on it from me but today still the bottom line for them for the jury was a finder of fact of the defendant now in considering that question they had heard the defendant testimony they had heard the sounds testimony they heard his ex wife's personality they had rejected that there equally and they have looked at all of the evidence including the design of the van which was the highlight of the government instructions were proper they were not sufficient the reason being that the jury was first instructed by the pattern instruction that they did have to find out to defend acted for financial gain they were then instructed that under aiding and abetting theory under the pattern instruction that they had to find the defendants physically intended to aid and abet the full every element the commission of the crime that's proper the i guess the language that's being disputed is the language from the united supporters and when i believe where they talk about that separate definition of what the term commercial benefit means and that instruction was a paragraph given after the instructions of the elements which did say that commercial benefit can mean any benefit it can mean the defendant acting does not require the defendant we do have to consider the drain structures as a whole and how the jury would read the instructions of the whole without isolating one subject also i would submit that the proper reading of that little paragraph from angling is simply stating that which is true the defendant doesn't have to have already benefited if the language is past tense you don't have to find the defendant acted you don't even have to find a reason agreement to pay you simply have to find that the defendant in his mind subjectively intended to benefit now whether there was any  this case i would point out that in the record the evidence does support the finding also not only on aiding and abetting but that the defendant himself the appellant here personally acted for financial gain and there is still strong circumstantial evidence based on the defendant's own testimony and it was a defense tactical choice to inject this into the trial that they were going to inject the defendant's drug use into this trial they brought it out and they made decision the government didn't do that but once they brought that out the immediately brought out a motive for the defendant to do the smuggling and i commented that on closing argument i believe it's a proper inference for the jury to draw that a defendant who has a drug habit and made a drug habit hard drug habit has a financial motive to commit a crime such as this had a financial motive to take the risk of being caught because of his habit so in this case i think to acquit this court can also find even if it's find some air in the instructions that the jury in this case very very easily could have found and i argued as my closing argument that he didn't factor for personal financial gain so that there is no problem here either way the government when it dies you have a few seconds so in closing your honour's i would submit that the trial in this the tactical choice to bring out the drug use of course was substituted by the admission of the improper for a for b and that was the defense to the trial within a trial that mr mandela's it was forced to take when he had to defend against the passenger incident which by the way if he'd gone to that directly would have been given a rule twenty nine judgment of acquittal because there is absolutely no evidence and past your case without a confession or some additional evidence of rule twenty nine and is granted routinely other cases like such as mata so that defend against the four or four be charged clearly undercut his credibility he had to talk about the drug use actually what happened in this case was before this four or four of the evidence was allowed in by the district court the defense made a motion and limited to preclude any evidence of drug use so closing argument and i think that when you have evidence of limited probative value even a slight chance of prejudice under gonzales floors is indicative of error so again we have a case here where the guy testified that he was innocent he provided evidence to corroborate it i think that we can't say that the errors are harmless under the circumstances when there are two very significant errors that have been established and i think thank you very much