crime because that relates to both time and place but my question is whether there was any prejudice from my given that i think there was no just ten days before trial and then there was no objection so if you would address that i would appreciate it thank you your honor and that's correct one of the issues that concerns me the most regards his protection against double jeopardy because if somebody goes back and looks at that indictment they will be a person supposedly found in safford arizona on a date in anticipation of something that may never happen would you still have that defense at that time your honor you would still have that defense the real problem is that the reason why felony cases need to be indicted there's a couple of different reasons but it's not only to give the defendant notice it's also to protect him from any later double jeopardy and according to russell versus the united states one of the other reasons for the indictment is for a person to be prosecuted on the facts that were presented to the grand jury that's not what happened in this case it's true that there was no formal of jackson to the indictment but this issue has been being discussed with the government for months in fact that's the reason why the change of plea fell before trial this before there was no objection but what was the actual prejudice in the trial itself well i suppose some of the actual prejudice was that he wanted to plead guilty and that didn't work and so of course he ended up with a higher sentence because he locked the plea agreement by the time the report that told when he told the real facts of when he was arrested was just close to him he had lost the plea agreement that's one thing but i think that also it is prejudicial for him to have to have lost his right to have the actual facts presented to the grand jury they may have considered charging him with an attempted entry since he claims that he was found within the port of entry as opposed to deep inside the united states so that's all you can point to i think those are the strongest factors aside from the fact time is running w problem is that he tried to go backwards after he already asked the prosecutor for or rates neutral answers or he erred maybe just in the semantics maybe he did move on to the third step but we can't tell that from the called young chair on the jury is now going on do we actually know the content hispanic wise of who was struck and who was on there or is that something we have to speculate about as well the contents of the jury in terms of the jury strikes well all of this panic jurors were struck four out of the government's six strikes were used to remove all h if i could reserve my last let me ask a couple questions your client found guilty of being found in the united states yes you know exactly where was your client found in the united states originally at the time of his a in connection with the charge of this and the finding that he was found in the united states the evidence indicated that he was found several car lengths north of an inspection station that's located approximately one hundred  that she had no family she was single she was not married she had no children she worked at banana republic and all of that doesn't have to do with her and it has to do with her youth  inexperience in life experiences when compared to the rest of the jurors if you look at the other did you explain that to the judge well the record snow i mean the question asked did you explain i hear your argument now do you tell that to the judge to the district judge i believe i did your honor intact the district court made a specific finding that the government had articulated that articulated a race neutral reason and well we know what the district court found we don't have to agree with and that's the only question is whether the district court had a basis for that finding the district court it if the excerpts of record on page twenty four made this a specific finding that this strike was based on used and not based on gender furthermore the word of the court so it's not based on gender in the  record on page twenty four the court will find that the defendant did not establish a crime if they should case poor racial challenge in your bats and in any event the government government property is sufficient race neutral reason to strike juror no ho other than her race that is of generally older and retired folks who were in their mid thirty's and in their forty's i read what you sort of striking because she was a young woman my main thought about her was that she was young and that she was female and for those reasons which are unrelated to race and that is why i struck her she was a young female and it's hard for me to understand how you have the authority to strike young females of the constitutional analysis well gender is a protected class as well as race correct and here you struck her because she was a young female i counsel for the government struck well your honor  the indictment what happened at trial was a non fatal variant the defendant was arrested on december twenty fifth two thousand and one in douglas arizona and then moved you moved to amend the indictment the question the question is were you out of time we were at trial yes there was no time to go back and supersede the indictment defendant stipulated that he was an alien that he had previously been deported from this country and third of all that he had no permission to enter the country what was the issue that the only issue in trial w whether or not the defendant had been found in this country and the evidence at trial was then controverted that the defendant was in a long line of cars in a lane exiting into mexico the defendant was approximately one hundred fifty yard north of the border itself to the extent that the defendant is claiming on appeal that he was merely presenting himself at the border for purposes of making application to properly enter the country to illegally enter the country there was no evidence of that effect at trial in fact there is no evidence to the contrary one of the border patrol agents testified that if the defendant had done that he would have been  jeopardy attached at the time that you filed a motion to amend the indictment now and therefore proceed on an indictment the charge found them had an appropriate time that your honor actually jeopardy had attached because the defense raised the issue for the first time after the had raised the issue next district court properly denied the jury instruction based on the evidence that was presented at trial back to the that's an issue just for a brief moment counsel for the government made the strike when you read the record in its entirety it's not wouldn't that the strike was nice made on youth and inexperience and was not based on race it's important to note that the defense never challenged any of the other strikes that were made by the government the defense only challenged the strike of this one particular juror that matter it matters because defense has been articulating that the government struck all of the hispanic jurors that w test it shouldn't matter whether or not they move to address the other the hispanic issue correct i mean each each one stands on its own each one stands on its own however throughout the briefs in fact here today in or argument defense counsel has has articulated that the government struck all of the hispanics that's not borne out in the record that was never addressed in the record thank you very much let me just ask you one question you had a plea agreement worked out in this case at one point is that right you did initially however at the change to plead the defendant did not provide the factual basis denying that he was in the united states on page ten he was saying i was coming across to check on the probation there in stafford but i wasn't in the united states i was right on the border i was not crossing and had offered to plead to something even less than what he with originally offered and counsel for the government was willing to allow him to do that at that time thank you counsel i need to point out to the court the district court disagreed with my assessment regarding the reason for the change of plea not going through and that can be found it supplemental excerpts of record page forty six honor the only other thing i wanted to point out was that in the governor response grief there is a lot of talk on this that's an issue about the youth and inexperience but that wasn't articulated at trial it wasn't