may please the court matthew prichard federal defenders on behalf of appellant sonti on this court should reverse the district court's order revoking supervised release both because there is insufficient evidence to prove the allegation that mr santana's committed the crime of improper court were to reverse order to vacate rather on the first ground that insufficient evidence ground the court would i would imagine vacate with instructions that the petition be dismissed because if the government failed in its first opportunity at a hearing it at an eviden supervise candidly not there really isn't either way but but if we envision the scenario for instance of the government had put on its case and then the district court held it at in the first instance that it was insufficient certainly the remedy would be dismiss then it wouldn't be well and then we'll said another hearing then you can try again and again and again the idea i think is that the government has a chance to put on its evidence at a revocation hearing to prove the allegations against the defendant and if it doesn't do that itself not example in that case i was one case i agree with your point that certainly would be sent back and the government would be able to try to put on a case that doesn't suffer from that defect but if the court holds as i would like it to in the first grounds in the first instance that there was insufficient evidence i think that should that should in the case and turning to that point there was a single big government such to prove a single allegation against mr santana at this hearing it was that he had committed this crime of improper entry now mr stanton had not been convicted of that crime before hand as is often the case and he had admitted to committing it and limitations on its ability to rely on hearsay to prove the most important allegations that will go to my second point just to briefly close on the first the allegation of entry since this court's decision in united states versus oscar over forty years ago it's been clear that entry means one thing under the law of thirteen twenty five or six and that's physical presence free from official restraint in the united states that's that's what the government had to prove and i had to do that with evidence and the government's argument on this appeal in response to that seems to be that based on this court's decision and a couple of context regarding jury instructions and jury instructions about a defendant's theory of defense concerning official restraint based on those the government argues in essence that it wasn't required to prove with it that it's this freedom from official restraint until the defense put it in dispute with its own evidence is how i take the government's argument but that certainly directly contrary to this court's holdings not only in oscar but repeatedly after that  means at the core of the problem here is the hearsay confrontation question because in an ordinary trial the case law is that you know if the whole trial goes on and the person who actually operates and him testifies and i gather therefore you can ask this person whether or not they have some means of getting the evidence because the person then you can ask them  then there is enough evidence by inference if the guy says no that seems to be enough i wish you don't have to ask everybody and you don't have to give an instruction and there's no evidence but the problem here it seems to me is that you never had any means of getting any evidence on this that certainly is a problem i think when i when i talk about such a press it is your honor but when i talk about the sufficiency problem i i'm talking about the evidence that actually interesting introduced even if we take aside the fact that it was hearsay that it was unreliable all that if it were say live testimony in the entirety of the government's presentation with that testimony had been arrested mr santelli on three miles west of a port of  report she said three miles west of the port of entry in an area called east smugglers that's it that doesn't tell us anything at all and so apart from the fact that that certainly hearsay it's an excuse to or say there was no proffer as to why the government had to rely on hearsay to that for that critical fact it's also just insufficient even if it were good evidence even if it were reliable evidence because it doesn't tell the court at all whether he was under official restraints suggests that he probably wasn't at the border surveillance as  this is intuitive in parks rossa says to voluntariness which is different same kind of idea though it's so far fetched the idea that someone arrested you know in san diego california and in downtown entered by accident or in voluntarily that there's a exactly certainly not but there are so many points at which surveillance would have inferentially a common sense as a common sense proposition been broken that that's just enough by itself and i take no i've noticed it with that but when you're talking about arresting someone based on what the testimony was here apparently directly at the border we just said we don't know that but we don't know what we do know is three miles west of a port of entry which suggests right at the border and there's nothing about whether it was in the interior anything else so you can you don't have any basis for inferring freedom from official that's it i gather you're arguing this is a necessary element of proof and if it is it would be maybe you need to this circuit but it was my impression that that  it was not a necessary element unless indeed there is something to suggest that he was under social restraint continuously from the circumstances yes judged me that's that's that's kind of the critical dispute on this first question and the answer is that it is it is the element itself it's not about what the defense is the dispute by the very nature of what an element is is that it's something the government is approved with seven and that's why critically and i think this is you can buy negative inference conclude unassailably that this is an element the court has reversed repeatedly for the failure on the government's part to prove with sufficient evidence freedom from official restraint which  but the question is there any case where the government reversed on that was a court reversed on that basis where there was an evidence in the case about the person lack of evidence that he was not surveilled so there are an arresting officer and a person who took custody from the arresting officer where the where the witnesses the guy who took the custody after the guy was arrested certainly didn't know what was happening at the time of arrest the other officer only testified about his common practice of usually surveilling or usually apprehending people immediately when they crossed the border and he suggested they often surveilled them but he didn't testify affirmatively that he was of freedom from official restraint precisely because the government had introduced nothing at all to show that he was ever free to go about and mix mix with the population and all of the evidence suggested otherwise it's very analogous to the situation here which is the only evidence suggests otherwise if you say i rest someone know there's just two elements to this offense that is to prove that one the person was an alien with that we put in his plea agreement in the judgment from the previous case and the other is that he entered at a time in place rather than as it doesn't question of why you couldn't prove it but not that is an element i think your honor i would respectfully disagree i think voluntariness is an element and that can be inferred from the fact that someone has found in the u s what particular type involuntary the government need not prove the negative so for example if someone got into a car in tijuana with a as a passenger and the driver told them i'm just going to the store up the street but instead drove across the border while the passenger was asleep we would say that's not voluntary but we certainly didn't have to put on evidence that that didn't happen in this case and here there's just no dispute about any of the evidence that was in fact  the officer but but then we didn't and but he could have also and frankly have to remember this isn't a prosecution by the government the government is in a sort of an odd position here where we're in the position of trying to assist the the person had pled guilty to a thirteen twenty five a one which we have in this case and then a two which is a glue to be eluding examination and at there they were going to they were relying on that they put on no custom on and when the family test and try and the testimony here was was the person reading the same thing that they said wasn't good enough there wasn't good enough there because nobody testified to  because she still has reading the piece of paper here's here's what i think the crucial difference and why again if this were a government prosecution i would agree we're assisting the court the court should be able to rely on its probation officers to  also has no legal right to be at the u s he didn't so that that says that allows the court that works if you're right that i'm not part of the enter element but if you're not right then the fact that he's sitting there has nothing to do with well the fact that he's sitting there has nothing to do with it but the fact that he had no legal right i think puts a little more point behind it  interject just to clarify my mind i don't think the statute itself says that entry has to be without official restraint but we do have cases with that kind of has to prove i would disagree where there is no evidence of that and that's based on those jury instructions if you don't have to give an injury instruction about official restraint then by definition it cannot be an element right  yes your honor in every case that says that it's because there's some evidence of official restraint but it's stating what the what the actual concept of entry is and you're saying it's not well i would say it is ss that will get issued a or had had he alleged that he fell asleep in a car they would say the court would say you would have to prove that he wasn't asleep in the car but that would make an element it's  this language in these other cases including what judge prison read read given that language is our panel bound to view and without official restraint those cases are different and the fact that it's that instruction need not be given to a jury at all unless there's some evidence of it means by definition it can't be an element so yes this court has spoke  but if you don't get it if it's something that the government that's a negative that the government always has to prove then they have to have an instruction no matter what even if it does make a difference of course not i mean yeah you supposed to have instruction but it's the structure put the matter because there was no evidence that's a different problem but here he never got a chance to put on yes well with all due respect i think he could have called the officer himself if that's really what was going on here but there's just no dispute here that that's what happened it's the fact that he was found near the border that brings up the speculation that farmers garcia says that kind of speculation is just not sufficient ok thank you very much one minute and then we're going to take a  break thank you and i'm going to try and this brief time to hit a couple points very quickly the most critical one i think is there's no such thing as an element that the government s approves sometimes depending on what the defendant disputes by putting in his own evidence an element is by definition something the government bears the burden of proving whether by a preponderance or reasonable doubt or anything else the jury instruction cases don't inform they're not inconsistent with this explain to me why so i have a great example from a related context and thirteen twenty five or six prosecutions another element is alien age alien age alien age can be a complicated concept people derive citizenship through their parents under a variety of different legal regimes in time at that place at the time they're born derivative prison ship we need sometimes instructions for that because a jury needs to understand that but sometimes not because that's not really what the evidence at the end of a trial at the conclusion of a trial is in dispute about a district court doesn't have to instruct on derivative citizenship but that doesn't mean that alienates suddenly ceases being an element element you just don't need to instruct a jury on the complicated theory of defense or the complicated definitions of the words in an element when that evidence when the evidence at trial doesn't show that that's in dispute that doesn't relieve the government of its burden to prove it in the first place the government keeps talking about voluntariness certainly that is distinct the government's confusing these things are quite distinct voluntariness is volition and the official restraint is surveillance but the reason that the government didn't have to do anything except show that the perp didn't have to prove that he wasn't on a car falling asleep is because there was evidence that he was arrested within the interior of the country and so from that you can infer that going to have to disprove the negative and all the speculative possibilities that's not the case here we don't have any evidence that he was arrested anywhere but right at the border