i will move to the last case on the calendar which is united states versus gonzalez quint totality of the circumstances here is what we had as a border patrol stop a car come to a lawful stop at a stop sign a car was heading north from the community has campo in marino area of residential and commercial activity it was heading in the same direction that hundreds of cars had every time every day and that time of day in the morning as it robert said this is the time of day when most however as i pointed my point out in my reply brief his testimony changed at trial i questioned him about it at that during the trial i said how many drivers did you see and he said actually i can only see the shadow of the front passenger and the reason he could only at the record of the suppression hearing and you want to talk to us about additional impeachment evidence that you say you would use that the trial i don't think we can do that unless you've got a case that says we can you know i do believe you the permanent checkpoint was located in the areas of the officer testified based upon those the fact that a permanent checkpoint was nearby that this was a route that was sometimes used by smugglers to avoid having to go through the permanent checkpoint don't we look at that  that sometimes we do it very regular regularly and they're very well aware of the fact that there's a temporary the border patrol is aware that there's a temporary checkpoint there so it makes sense  permanent border patrol checkpoint in the area there's a there's a permanent border patrol checkpoint on interstate eighty ok and the testimony by the agents as i read the record was that smugglers border patrol knows that this route could be used because there's a temporary checkpoint and i ate but now i want to know each eighty one highway eighty but i'm sure that the smugglers and wear the same thing and that's why i got all of them are aware of it because these agents testified to what almost one hundred arrests for smuggling  i believe it was agent robert said there had been fifty or sixty arrests that he had me in that area but however i did the math for your honour's he'd been in for a troll agent for seventeen years working this area and when you you know a five block area in a short period of about a month or two months and that's in my papers that that's a notorious area for drug dealing or or smuggling what we had here was that the agent has five this general area is notorious and the place at an unusual time of the morning very quickly was five forty five in the morning agent roberts testified this is when people usually go to work and as my investigator testified just under two hundred cars per day approached that stop sign south heading north between the hours of five in the morning to six thirty in the morning i'm not sure what to make of that fact though because the district judge did say at one fifty three of the excerpts of record that he accepted the testimony from your investigator with regard to the fact that the sun rose at six twenty nine that morning and that these events occurred at around five forty five am but it appears to me that what he's saying there is that what he said like a reasonable inference that wasn't dark the sun wasn't up but i believe there's no information that's been presented to me that the officers couldn't see or that the darkness prevented them from making clear observation change occurs at seven am they saw the car at five forty five am now you can close an hour and fifteen minutes between the two with regard to going back to the point i think you we're making no judge comment which is officers couldn't see or that the darkness prevented them from making clear observations and now you seem to be arguing directly contradictory to the district court factual well i think what i'm arguing your h is because it was that time of the morning because it was forty five minutes before the sun rises one can question how visible it was and i mean maybe there is no evidence maybe the district court found that there was absolutely no evidence but i believe there was the fact doesn't matter what you believe council it matters what the record shows and what the district court found and are your is your argument now that notwithstanding the district court's factual finding the agent would not have been able to make a determination that a ford explorer located was seven or eight people was riding low i mean how much light you need to be able to make that determination well i don't know and i would argue as well that there really isn't a whole lot of information  really don't know how to weigh that factor very effectively and as i put my papers and united states versus our visa makes clear you have to weigh some factors more heavily than others crawford the united states supreme court overruled its previous president in ohio v roberts in so doing it overruled this court's case hernandez herrera which had previously said that he filed documents are that as saying that they've overruled the business records exceptions and isn't that what the records of a prior deportation proceeding are there either business or public records of the court so they're not testimonial even under document that's emitted you you can't just label something well to business record or it's public record and say well therefore it must be known to certain but if the key is not a testimonial how can a document testify because it's doesn't make any difference whether it's  testimony and testimony in turn is an affirmation made for the purposes of the stablish inger proving something and that's exactly what these documents would have done to a juror who was reading them the notice to appear which is essentially a charging document like an indictment self serving hearsay somebody from the government agency the ins we don't know how he came to these conclusions who he is he came to these conclusions and and then i submitted to the jury and it and you need only look at the morning to alien ordered deported or removed where it gives a warning where it says you may be prosecuted under title eight united states code section thirteen twenty six so the ins was anticipating a future prosecution in this case it was specifically anticipating criminal litigation and so i don't think there's any question that these these documents are testimonial for the more i really think that these an element of the illegal reentry crime yes it is absolutely you know look i don't see the distinction here but i do think that all the documents have included in the excerpts of record our testimonial for the reasons immigration judge that you are an alien we pointed to that fact to prove one of our elements we did not do that despite the fact that there is i think apple information and apple holdings within crawford itself that shows that that he goes through to get to that point it's just whether you can use documents that are testimonial in nature and it doesn't just go to the reliability it goes to the opportunity to confront so he's changed the landscape here and me that means we have to look at the content of what the business record is of the business record is regularly kept in your ordinary course of events so under the old standards you could made an accusation that you were in any way did we rely on that and i have to say that if we did that quite frankly we would not have done that simply because it's not very compelling information it's what is compelling and what we did report you time and time a they do and what is the age of robert's that he happens time and time again they make a quick you turn right that's why he positions himself as those other agents three miles down the road to the east or setting it up that's what he saw error especially into a situation where there was a violation the constitution this court's pressed in fl government says the government has the obligation the duty or the burden i should say to prove beyond a reasonable doubt that they still would have gotten a conviction the suppression of the body i guess that also sort of a harmless error argument with regard to what could they just depressed and certainly they would have suppressed all the statements at a minimum and the government and its priests and as you just is the only reason it's i think from the court is as a result of your error in not carefully proofreading the brief mr barth quite properly brought a motion and to bring this matter to our attention it created a huge amount of work for the court at a time when we're trying to prepare for forty other cases that we're hearing this week and all i can tell you is be more careful next time and don't let it happen again a ok we stand in a german