of focus on the testimony of two government witnesses that her statement was false witnesses jackson were said and then focus on the testimony of another witness a state official who testified that the state of arizona officially rejected her identical factual claim to her defense in this case if there's time i'll address the jury instruction issues where the district court erred in allowing expert testimony from officer jackson a senior citizenship adjudicator from citizenship and immigration services that miss fell does is not a united states citizen it correctly precluded that testimony in the st trial you didn't offer a mere generalized opinion it's the government's really only response on this that when he said someone in this situation is not a citizen he didn't use her name but he was talking about her in context he was asked about her a file he was asked to describe what was in her a file he did he was asked if he had concerns with the documents in her a file and that only the last minute because the prosecutor switched from talking about misspelled dess to an individual or person and asks if an individual has the same documents would that be of concern in the answer is yes it would tell me that they're not a u s citizen so this court held into a cruise that ultimate issue a question that either asked for the ultimate issue or here and answer the balance here is the ultimate legal conclusion is improper really because you switch from talking about the defendant to talking about a defendant i'm sorry an individual or wrong was whether she submitted a false statement claiming she was born in america when there was a nother document that seemed to indicate that she was born in mexico and so that was the issue she took the stand so the jury had the competing accounts and they concluded obviously that they did not believe her and they convicted so but even before we got to her taking the stand what was the issue what was the relevance of any of the expert testimony i think we agree with that and i think you're hitting on the same concern the district court had in saying i don't want an expert to come in and tell the jury that she is or isn't a citizen because the expert doesn't know where she was born the expert is in no better position to determine that that the jurors what was the issue was really was the way for the government said they were calling the experts on testify that she had not obtained recognition of derivative work acquired citizenship which are two of three ways to that she might have been a citizen she could have drive to citizenship for the parents naturalization acquired it from a u s citizen of born abroad or she could just been born here which of course was the only issue in this case and so i think it was fair game for officer jackson to come in and tell the jury there are always ways you can become a citizen and a and b not in play here driving acquired and then we move on to talk about the real issue that he'd like you to question which is exactly and that's what the district court ruled in the st trial after jackson could do was just get that out of the way never can establish those points and move on because the main issue in the case is place of birth of course he didn't know that it was in no better position to tell the jury about where she was born and when he tells the jury that she's not a citizen based just on his review of documents it's it's it's it's it's misleading because he has the or an authority of an expert that really has no better ability to make that determination than the average lay person counsel one probables me in terms of the cumulative error in this case is the fact there was a hung jury i believe in the st trial when the troubling elements that you cite in the nd trial were not permitted or when we look at these things i know we had jackson we got another one we got several other jury issues when we look at these these cumulatively i usually don't pay much attention to the whole idea of cumulation but here you have a trial same issues same people accept certain things weren't permitted and they got a different result to what degree should that influence our analysis what is this standard to review for cumulative error in this under the for all of the errors even those that weren't preserved the higher standard for constitutionally harmless beyond a reasonable doubt if none of the preserved areas is constitutional but if there is still a preserved air such as the that the motion for a mistrial based on that the officers blurting out that she'd been arrested before if any of the errors is preserved such as that one was that all of the errors are reviewed under the more probably than not harmless standard ok thank you the same thing so moving on from officer jackson this is a very similar thing happened with witness were set and she's the passport specialist and fraud manager from the department state passport office and asked as a fraud prevention manager to review mr oh this is passport application on the stand and over page in the transcript points out all of her concerns that's the word that's used repeatedly with her particular application telling process here's what happens here's how you apply here's what happens with some replies in this trial she's a bum i was the relevance of that you know really cares about the process when the only question is whether she lied and said she had been born in the united states or not but this case she she eventually testifies as an expert because she's giving opinions she's testifying about matters require knowledge of its and specialize d experience but you shouldn't have been right she should have been permitted to do any of that and ultimately at the end of her testimony she was asked if would it be of concern hypothetical question that a that a lay witness can't answer it's a what if question would it be of concern if your passport fraud manager and you find that someone has a foreign birth record and she says it would tell me that they were born i'm sorry she says it would tell me that they were born in mexico ties it back to miss valdez but with mexico she was asked about a mexican birth record so again now we have a nd witness telling the jury that misspelled as a statement was false because the inference necessarily follows i mean if she's not a citizen she wasn't born here then her statement was necessarily false that's the ultimate legal conclusion in the case miss rodriguez now this is the rd witness this is the state  the records operations chief another fraud manager this is the nd witness in the government's case in chief and she comes in and talks about a completely separate application that mr valdez filed four months later with the state not with the fed case is about a passport application a separate state application all of the state's concerns with it as a fraud manager all the reasons why the state rejected it and why her evidence wasn't sufficient again it's not relevant it's not helpful and there's a there's a very substantial risk that jurors will deem any of these three witnesses so much more qualified than they are in their minds that they're going to just abandon their role as fact finders and decide that they should defer to these folks who seem to know much better than they do these three witnesses individually or cumulatively require a new trial but me well could you just point me to the place in the record where the the the expert testimony went over the over and seventy and then ultimately on one hundred and seventy four is where she gives the testimony that that crosses the line and rod rodriguez's testimony is for her entire to direct her i've got a couple of minutes let me also address the jury instruction issue because i think it also plays into a cumulative error analysis if the government had to prove their statement was false only jury instruction that address the facts there's an element instruction and there's a separate defense instruction the only instruction that address the facts told jurors that acquittal was required if they had a reasonable doubt about whether her statement was true about whether she was born in the united states and that obviously flips the key fact false versus true no instruction told jurors that reason acquittal was required if they had a reasonable doubt about whether about what the government had to prove which is that she's not born in the united states so the implication she says of citizen i was born here the government had to prove she was not born here to prove falsity no instruction told the jurors that acquittal was required under those circumstances so the instruction incomplete it captures one of the defendant's theories but not the other one theory argued in closing is here's my defense i was born here here all my the affidavits i have here's my  testimony but even if you don't believe that maybe you don't think my affidavits are good enough my other defense is putting the government to its burden to prove beyond a reasonable doubt that i was not born here so even if you don't believe my defense there is still the usual defense in this case but the instructions focus the jurors only on the form or the evidence of birth in the united states and not on whether or not the government approved a reasonable doubt that she was not born in the united states so it was not was not a u s citizen that is not what he said and that is critically important because the defense is suggesting that he exceeded the scope of that ruling below in the st trial and  don't know what i mean is the facts this hit the quote was so if and this is the question so if a person gets a border crossing card with no additional paperwork and that no additional paperwork refers to if somebody hasn't applied to be a u is that of concern for you as an adjudicator and he said an adjudicator means if he was determining whether or not this person should get a border crossing card it would tell me they were a u s citizen and they were an alien this is in the context of border crossing card and this gets to your to your question your honor about why this testimony was relevant as the district court noted and when they were discussing this this testimony that the border crossing cards and the existence of them was very important because a defendant had to show her mexican birth certificate to get them and that went to the falsity of her claim that she claimed to be a u s citizen we actually this gets to the jury instruction argument as well we already had to prove to her statement that she was a u s citizen when she filled out her passport was false and helping us to do that was the existence of a birth certificate that she never told the state department about when she applied for her purse passport the border crossing cards and this testimony related to that i'm maybe on the following so if the relevance is that you have to show your mexican  citizenship or something quicker than of her to get the born that's fine i understand what you're saying about romans but his statement goes well beyond that actually it doesn't because he's talking about if a person gets a border crossing card what does that tell you it tells you that the person is not a u s citizen and i'd love to quote one thing that i think will help this the defense counsel was never a disputing that u s citizens were could not get border crossing cards and at day to page one hundred and forty two he asks reynolds whose testimony isn't even being disputed here quote now the u s only gives a visas to people who aren't citizens correct and she says correct and the reason for that to your honor is as the defendant notes in opening brief page thirty six the defendant wanted to a licit the evidence that she could get a border crossing card simply by verbal e avowing that she was a u s citizen she had to show some documentation and so he during that in her change with reynolds is trying to illicit that the u s only issues visas to people who aren't citizens meaning she had to show her mexican birth to big because that was the only thing she had that was what the defense was advocating there so this stuff about the border crossing card being reserved for people who are not u s citizens was never disputed below against it's reviewed for planar but there are reasons why the defense wasn't disputing that below it also jeff tailed with that two thousand and ten birth certificate and that is sort of related to the defense didn't object to that either because the existence of that application for a two thousand and ten arizona birth certificate they admitted it in exhibit fifty five dollars and that was contained in government sixteen so they wanted to show that and here's how they put it in the st trial where you go on ask your question because we're forgetting about the st trial and the law have an objection to that ok so when would any such testimony that have been inadmissible in the nd trial it's not that testimony and that's what's so important your honor it he did not testify that she was not a u s citizen and moreover the context of that jackson testimony is important and that's why i mentioned the border crossing card because it within the context of that and that the defendant also was not disputing that border crossing cards were reserved for u should not just you did not dispute the border crossing guards were reserved for us i'm sorry excuse me thank you your honor they're reserved for foreign nationals non u s citizens thank you so much the two thousand and ten birth certificate the defendant admitted that because the defense wanted to show that she has done everything she could to try to make her alleged arizona birth legit and that is something that you can see if you want to look back to the st trial at e r ninety four we're trying to fix her history is how the st defense counsel put it so the idea this is where actually i was real surprised to see this argument made that the two thousand and ten birth certificate application with irrelevant i think they said in the reply brief pages twelve to fourteen the defense admitting it that document just like the government did the gov wanted to use it because it showed that she used a different name and date of birth in her arizona documents then she did and her mexican ones and i cannot begin to tell you how critical her testimony was the defendant's testimony and why it is that any error was not plain here the defendant took the stand and as this court has said in shoal and before that in canny if a defendant elects to testify she risks that if she is disbelieved the jury's going to find that the opposite of what she says is the truth she took the stand she said she thought she was born in mexico jury instruction like the jury instruction if they had found that she believed she was born in arizona excuse me they could they would acquit her the defense st instruction allowed them to do that in the nd bit as well as the government's elements instruction it said we had the burden of proof there is no burden shifting here we had the burden of proof to show that she knowingly made a false statement on her passport application which meant we had to show it was false and the statement that she is alleged to fade is that she was a you citizen so we already had to show that was false so the defendant's argument that something had been admitted that was critical again not error but certainly not plainer so from your perspective the defendant herself admitted she thought she was born in mexico well she admitted that exhibit one was her mexican birth certificate and that said that she was born in mexico and she yeah and she also admitted you member agent often testified in the government's case agent off it said she told me during an encounter i'm born in mexico i was born the quote is born in magdalena hollies go she gets on the stand and she admits that she admits therefore that she was born in mexico now she takes the stand she adds some embellishment carney assad and salsa story she also said and this is a jury question that's towards the end of her testimony almost like a p s to resistance that after she had already suggested her father had lied and got her birth certificate in mexico when it wasn't reality the juror asks so you're saying your father's a civil servant and he's asking and he's saying and he's locked he's at asking or or lying to other mexican civil authorities and she responds no he had no reason to lie kaboom i mean she threw a grenade in her own defense and it was overwhelmingly strong the idea that she had different identity in arizona based on all those arizona documents and had a different identity in mexico based on her mexican official registration and that mexican birth certificate that we were fortunate to locate showed the jury she's being deceptive and when you're being deceptive in front of a jury as this court said and you do not believe that what she's saying is the truth so when she said hey i'm born in nogales arizona or i thought i was they're entitled to believe no you weren't and here's all the evidence and so again i'd emphasize the defendant's incriminating testimony which isn't mentioned really in the defendant's briefs but it shows that if you would have find any error here number one it wasn't plain almost all of these arguments are un preserved and also that it was harmless i think the only one that was preserved with the apprehensions one in the district court  demonstrated why that with not worthy of a new trial the jury instruction issue two i'd just like to impress that there was never a burden shifting there you know the defendant requested the instruction that he suggests his burden shifting but there wasn't any because the jury big the big overarching why all this matters if they wanted to believe that she was either born in arizona or they wanted to believe that she thought she was born in arizona where the instructions adequate to allow them to acquit her and the answer is absolutely based on the elements instruction as well as the nd bit of the defendant's instruction that was given so for all those reasons there just is the number one no error here number two it was not plain and based on all of the testimony particularly the defendant's incriminating testimony and he aired it not violate or substantial rights or was harmless so we'd asked the court to affirm your question all right thank you thank you very much house we have a little rebuttal time thank you joe lieberman talked about the context of officer jackson's testimony that in the government says the context is a discussion about visas the context was officer jackson looking at her a file and telling the jury from her a file alone essentially where she was born the cont that to eighty four to eighty five in the excerpts that orders court to look at that you agree with what your opponent said that the defendant herself confessed to being worn in mexico no she did not do that she is the opponent not correct that the jury once they see that there's some lying going on and believe wish that the case the government cites when it talks about you know the jury may not believe the defense of those are in the context of sufficiency claims that don't have anything to do with this and put the court to the record your three hundred and fifty one is where there's a conversation between authentic and  government says that in that conversation she admits to being born in mexico well ultimately at page three hundred and fifty one she's asked so you told him where you were born and she ultimately says he just asked me where you from and that's a distinction because of course she was from mexico she grown up in mexico so she could say i'm from mexico the agent says i asked her where she was born she says no he just asked me where i was from so she didn't admit to being born in mexico she would actually have knowledge of where she was born till the her father would or other people would but not her just like all of us so i mean even if she can admit to something  there's so much right i mean the was really is a classic emotive error case i think because so much of this testimony shouldn't have had no purpose in this trial other than just to tell the jurors how to evaluate the other it's ok all right thank you thank you both for your very very helpful