misconduct by the prosecutor requires reversal of the conviction and why is that there's a huge amount of evidence here i mean this guy coming back and back i mean it's just it's like there's a mountain of evidence he would probably write application for legalization in it that he also had qualifying family members who may have been able to petition for some sort of legal status for him these are not the type of facts that you see in an everyday legal free entry case and given those facts constitute a gap  the record a gap that the prosecutor responded to by engaging in improper argument the reference to overwhelming evidence of guilt and that the evidence of guilt proves overwhelmingly that mr chavis is guilty is just one of a number not sure of that  i two points two points of to respond with the first is that under garcia which is another case out of this court in that case the phrase that was found to be improper was this man is a liar and even though it wasn't proceeded by the darden ultimately our cases heiner hanging and ultimately we have to determine whether the there was a reasonable probability of a different result as as a result of what was said and i be honest with you i  we also have the use of the phrase machination referring to the defense's case as a machination and the first definition of that phrase that term in black's dictionary is an act of planning a scheme especially for an evil purpose this said during that during the direct examination of a focused odeon that this second a number had been sprung on the government earlier that morning what that did is that it led to a running theme throughout the prosecutor's closing argument that the evidence of guilt was so overwhelming that the only thing the defense well the prosecutors and titles to make a closing argument is entitle to put the best spin on the evidence is there that's part of our process what he can't do is valid you can't put the prestige of the united states in this case behind the evidence and just say the united states says this means x now i get your point that overwhelming i'm not sure i agree with the other point about the macchiavelli and type thing  but overwhelmingly you know maybe that was close but ultimately we have to look at it when you take the totality of the evidence that there's a reasonable probability there would been a different result than just a lot of stuff here i mean this this record is replete with evidence this guy just kept coming back come back do whatever you want to do and ignoring what would it happen before well your honor let me get to the prejudice analysis i think that's what the court is interested  fact is that there was a pending application for legalization so what what that means is that there might have been something in this other a file or on the claims database under this other a number that may have showed that mr chavis had a right to be in the united states or he met me at the grocer speculation to say the well that's certainly what the prosecutor believed but i didn't but this is not speculation this is grounded in the evidence that the jury heard testimony by the eighth alka study and that a file is meant to be a chronological history of an individual's contact with immigration that it contains certain documents that don't exist other way in other look at other locations and that certain applications filed by the fine family members could result in  following what my colleague says here in terms of speculation you don't know it was in the a file what you do know was there was an affirmative official document showing that chavez was a citizen of mexico the government had more than sufficiently demonstrated grounds here food that he was not i'm a citizen of mexico is he going to then turn around and say you know i was just kidding it's look at the if you think the internet let me i have two points to a i want to say to that first of all it is the government's burden to fill in the gap because i think we would all agree on that it's the government's been here it's not mr thomas burden to prove apparently that he is a citizen but there was also evident introduced a trial that showed that mr chavis may not have been aware of the legal status he was not able to write he was have applied for citizenship in one thousand nine hundred nine but for that to reach any type of reasonable doubt that application first of all would have to be granted there's no evidence that it was it was not in his a file was not in any government databases anywhere it would have had to survive three subsequent deportations and it would have to again you would not have admitted both in the field to the agents to at the station to the agency and then a federal district court that he was a citizen of mexico with no legal right to enter or remain in the united point to the only other i guess speculation not even really evidence they pointed to was that his mother had become a citizen or had status at least and his wife had status but that was the extent of the evidence in that regard we had no indication that they applied for him in fact the mother didn't status until mr chavez was about forty six years old how to apply for status for two other people neither of which was mr chavez so there are these things in the record but in no way do they lead to reasonable doubt and that's exactly what the prosecutor was arguing was  this is a plain error standard at least for the overwhelming comment so even if it's potentially error maybe not there's nowhere that no indication that it's playing error that the disproportion of sue a sponsor jumped in and stopped the proceedings at that point because at worst for us the case i would just point out that the defense has the right to poke holes in the government's evidence and to make that make sure that the government has met its burden of proof in this case no question that was the defense's theory of defense is that the government had not met its burden and hadn't done that by leaving significant gaps in evidence that custodian explained that in order to do a thorough search about whether or not someone is a citizen or if they have permission to be forgiven counsel one of the significant gaps in the evidence that there was a whole nother a number that had never been searched and with again he was deported three times before he said he was a citizen of mexico and on and on on and the question is does he have a right to be in the united states where's the evidence usually it does come in that's true but there was an application for legalization pending in that other a number that that went on search the government ever brought any evidence to show that that it had been denied that had been granted or that it was still pending and that was the government's burnett was not mr thank you thank you very much we have your argument and we thank you both counsel case just argued is submit