an entry is first required before a conviction for a found in thirteen twenty six offense and if an individual is under constant surveillance they are not free to roam within the united states and they wouldn't be subject to a thirteen twenty thirteen twenty six down in offense since it's the government's burden of proof here to prove that mr salazar lopez was free from official restraint in this case and the evidence presented a jury was instructed on this question were they not that is correct the jury did receive an instruction on this story approach the flesh and not from the perspective of love is there evidence supporting your theory but rather from the perspective was was the evidence supporting the verdict which the jury reached in the government's theory well that is correct it is there was a rule twenty nine motion brought and the test would be sufficiency of the evidence and the rational trier of fact if i could have found the evidence beyond a reasonable one well at this point if you look at the record it's easy garcia to testify that he received a radio call stating from another border patrol agent who was watching the border at the time that seven people had just immediately crossed into the united states giving me the legal standard i want to with the facts are that you you just cited the sequencing i want to know where in relation to the border to the first trigger occurred that alerted any inside tiptoeing on the border or a tip going up to the border well we do know that the sensors are and the united states does united states at the border but which would indicate by calling say the scope operator to find out the exact details of what happened but the government didn't do this and so by raising the issue through their own witness to a created reasonable doubt here and without testimony from the scope operator the jury really had no basis to conclude that mr salazar look this was free from officials straight given the reasonable doubt introduced based on the testimony of each ink r c f there's even a question short of that because i'm not sure that being detected via a sensor is the kind of observation or continuous surveillance that's even required to qualify for the official restraint doctrine all the sensor can say is something's moving there can't say what it is can't even say it's a human being but it gives the agents reasons to look where they go look what by that time there's little question for because the sensors on the u s side of the border there are the not going to find that out until somebody has crossed the border now maybe real fast that they can find it but at least there's this gap between crossing the border and finally being spotted by somebody that even if the sensor is going crazy i don't know that you can say that person is under pressure restraint well we do have evidence of record indicating if you look at infrared detection and during the day these financial or so but we don't have testimony here we do have testimony that there are people watching the border there was a gun i just summarized and these from my understanding with the likelihood that some but some agent individually or collectively always have this group under surveillance from the time i came across the border th he received a radio call stating that seven individuals had just crossed the international border and if were heading north in his direction indicates that he received that information from another border patrol agent who was watching at the time otherwise they wouldn't be able to tell that the individuals who just crossed the international border so we do have evidence that here mr salazar lopez was under official restraint at the time your honor if they're anything but they're further if you much time so thank you structural or that's true here but going back to devote again if you take a cotton what about the supreme court's decision in the supreme court in how this failure to allege a drug quantity was erroneous was a mistake alerted to the presence of the agent of the persons supposedly cross the united states after the sensor had gone off and the subs are we don't know exactly where the sensor is we don't however i think it's more than reasonable for a juror to conclude that they're on the we're spending so much time on the issue right and we will show that more next time however there was also further evidence that mr garcia went and tracked individuals including the the the appell and found him hiding in bushes and it was further testimony that even if there was a camera operator were areas where it could not see including behind bushes another low areas so there were certain sufficient evidence for the jury to find that he was not under con if they walk you know they walk behind a little hill or in the desert you know so that seven are here they walk behind the pool hill and they're out of sight for ten seconds and then they park and then the same seven are walking you're saying no longer under physical restraint right well i think it certainly would be dependent on the case but i don't think that we need to worry about here because at the the government has sensors that the tact goes off for a single group presumably there's you can know whether or not it had multiple detections or a single detection  surveillance for all you all of us to say well the sex is triggered right that that's probably indisputable fact right where does that get the defendant if you're saying well that's all it takes i think the government's burden is m when we prove some kind of evidence of the voluntary intruder if they're if they're attacking the issue from the argument that they were constables they would have to call the scope operator someone that would that would stating that they any quantification of the time between when the sensor went off and the scope operator turned on the camera you know other then shortly thereafter so it could have been seconds it could have been minutes there's no there's no evidence in the record that correct clarifies that all right and even if it were split second however the fact that the sensors were reasonable inferences if those are in the united states you know if they went there immediately they still would not have seen the crossing into you know any evidence as to where the sensors army lation to the border or or where the camera has relation the border i don't believe it was we know it's in the u s we don't know how far right at least six inches could be six feet could be a mile correct there was only evidence do is expand the scope the reading of kovi and i think one coding to say not only must you charge the deportation in the indictment the grand jury case but also the date and there is no indication of whether thor did the supports that argument is the harmless playing error standard that applies and furthermore because we do not have to ledge the particular film with and if there is a felony or with after which the and this person has returned to the united states and there's no other indication that the doing the specific thing is necessary in fact it's course continue to hold that where the overwhelming and uncontroverted eviden shows that the jury could only have found a particular deportation removal the district court can find the date and note that the sequence of events puts that deportation subsequent to the to the  united states well that was not argue are you but it certainly is a logical inference when it well not quite because what happened was the evidence of what happens after you get a warrant a deportation did not occur until we brought in the witness addressing specifically the two thousand and five and but we did go through to show that all the elements were done so with that if there are no further questions on ok thank you context of deval that's a question i tried to put to you earlier and i don't think you've answered that question of why hasn't cotton satisfied or shouldn't satisfy us that the supreme court is saying this kind of problem