here well i'm saying why why is that which fancy was next to makes a big difference because one was supposed to be like two feet from the border and the other supposedly fifty feet from the border well i think a lay person going out to layperson looking at that area is going to think that a secondary fence could very well be the board now the government introduced a notice expert opinion from the arresting agents case as to where the border begins and  river there anything there are problems monuments i had seen on cross examination i said what is this that there's at least a mile between these monuments in his response was more i'm not sure how the monuments work that was successful he doesn't know how the mo pivotal because it makes it much more volatile for me to argue official restraint and it makes it certainly much more plausible for me to argue that my client was never in the united states the government of course for their part decides to completely distance themselves in disavow that testimony restraint the entire time they don't know how long he'd been there welp the government's position was that they didn't know how long it had been there however my argument would have been that if he's if he's approached just then teach just north of the crim is that if he seen walking just north of the primary fence they had to see him coming in and if they just omitted that from the report now it's very in the government talk problem with that too obviously because the testimony trough was that that never states they had seen come in if you'd actually handed on the primary sense in that they simply omitted that from their testimony it's again much more plausible for me to make that argument based on whether or not they saw him enter and then it if they see him coming in and they apprehend him immediately under the circumstances in this work it's multiple decisions he's absolutely under fish for strain because he's under constant surveillance the entire time that's that that's why that's important  show is a veil observe him cos in the front somehow well that would have been my argument to the jury and again it would have been much more possible for me to make that argument had i been able to introduce the testimony of the grand jury witness that there was no evidence of the fact there was was by having cause that that's not enough right well i think they actually have to see him from the moment he i think that's a that's a difficult question because frankly i think there's an insert a conflict on guidance from this court as doubt as to the finest strength there are at least three cases from this court holding that constant surveillance equals official restraint but in each one of those cases there's a momentary break in the surveillance and then there are several other cases where there is a momentary break in surveillance and this court has felt that that is sufficient for the personal longer to have been under strain so i do think that there's a certain disconnect there of course i've also made the argument that the fact that my client is standing behind this giant fence is per se if this were strained he didn't know how to get around it he asked the agent for help in getting around it he told the agent he couldn't get around it and it's a pretty clearly he couldn't get into the united states he' going through the the fence and the wall they created the fence as if it was the same as the wall that even though those may be barriers  definition is what if someone is free to go at large and next with the general population see only a few minutes left if you like reserve the remainder not speak with the authority to find the united states of america in a criminal prosecution but more importantly your honor but that's not the test the question is not whether they speak violinist facing a criminal prosecution that's what lawyers do report he had absolutely no personal knowledge of what went on january thirteenth at trial agent maldonado was cross examined not once not twice but three times ok head to the top of that testimony is its position i do disagree honor and in fact that was not the instruction given to that to the grand jury the witness was presented  by the united states attorney's office much as against any witness a civilian a criminal or any number of witnesses are presented after the conclusion of that presentation testimony the grand jury assistant said you have the law you have the fact that would be instruction it wasn't indict here's the indictment and of course a draft indictment was presented to the to the foreman of the grand jury but it was for the grand jury as an independent body to determine whether or not to indict t also a government employee that binds or or makes it a party admission in the trial level your honor but most importantly the district court did a four zero three analysis in this case and determined that it's collateral under four three it's absolutely confusing to allow this grand jury testimony in and it's time consuming as mr lemon wrote in his brief the judge did a very exacting for all three at trial that that was where he was originally found it would not change the analysis one bit because he was not not having been seen either be physically within the grasp of the united states or or under the surveillance of the honesty i am over my time i'd be more than happy to answer any additional questions however if not i would i would thank you for your consideration thank you very you know i'd like to begin to your honor's i'd like to begin with the last point that counsel brought up which was that this is an area where people are allowed to go americans are allowed to go to write advice or whatever that's simply not credible testimony in retrospect i should have done a more thorough tough cross examination on this witness but he did testify that the gates are locked if you're coming from the south to this area first of all no one in their right mind would want to vacation ever or picnic or exercise that typically the people he sees in that area are what they were purchase rag pickers which are these unfortunate homeless mexican people that come over the primary fence and look for even heightened in this year of reliability for the adoption the government presents the witness to the grand jury they tell the grand jury that he scores for the immigration service and he's here to testify about my client he's under oath and times with his report that just came in for impeachment under the federal government it doesn't come in for the truth as opposed to the california rules where products and saving always comes in for the truth of this testimony from agent ramirez and from the grand jury would have been introduced states that location was in the united states well i would have at least been able to argue to the jury that there's not sufficient proof beyond a reasonable doubt that standing just north of the crime or offenses in the united states i would have been able to argue that had th and i think i tried to but unfortunately the district court had again not allowed me to introduce the statement by the party opponents therefore that it wasn't evidence that he was arrested on the primary things there was no evidence of that and the government actually address