thank you thank you case may please the court kristie here is on behalf of mr ramirez the district court misstated the law when an ad libbed the jury instruction that there could be no breaks in the surveillance of mr ramirez for him to be under official restraint and not guilty under this court's case law brief breaks don't defeat official restraint the what difference does it make with say we agree with you that that ad lib was not a correct statement of law was there any evidence suggesting that the jury could have found differently on the on the wrong instruction about the you know what evidence was there oh be brief for a while the scope operators report your honor and that's what the jury asked for after judge for an allen charge the jury the next question was can we have the scope operator support at the shift change and so we know that the night shift operator was surveilling mr ramirez and so i think the jury had zeroed in as the basis for the verdict was there a break between the night shift operator and the day shift operator of the scope and how long that break was was it just sort of when you say counsel forgive me but in response to a question if you could just i don't want to go too far without  said we know that the jury didn't know that this is your for are you are you referring to the prosecutor statement that was made off record when there was that discussion with the with the i can i can represent that the scope operator would  say i'm referring to the jury's note asking for the scope operator's report you just said we know that and you are referencing the state of what happened that evening about what the scope operator did and i think the point is the scope right or the jury didn't hear from the scope operate oh i apologize so agent stalling talked about how the scope operator had been watching mr ramirez and had reported it to the night shift agents ok i saw someone in the bushes and they were able to find him so that's what i'm referring to as we know at least at some point that the scope operator was surve i guess i disagree i think i think the judge's point was well we know that he was the scope operator was surveilling him at this point before the fifteen excuse me before the shift change happened and we don't know if he stopped when he stopped if there was a break between the night and the day shift because the government didn't call either of the scope operators to testify and so that i think was his point is given their burden and that's the way the evidence sort of played out as we can especially given the intense or valence in that area where where m found i think the judge was saying the inference you know as it is here is there was continued surveillance except think if that's what some confounding right it wouldn't have been brief and they couldn't find him they went at once to try to find him and couldn't find him so if i'm left with wondering what to do with this well i think we have to be clear about the different agents so the nightscope agents are the ones surveilling him the agents in the field are the ones who can't find him well but they're right but it's not like the nightscope didn't they told him where to go look and they couldn't find him so the notion of that doesn't mean they aren't watching him were left not knowing was there testimony about with those guys and with am radio contact if they say we're out here we can't see him was there is there any of that in the record there's not between there's just agent stalling saying that he wasn't directed by the dayshift scope operator but there's no testimony about whether the dayshift scope operator was continuing to watch and just not radioing there's just no evidence about that we don't know why they couldn't find him when they went out there or whether they they just came back as far as we can tell from  records they came back and couldn't find him and the next shifted correct correct and so i think the inference as judge brinn said was well they continued to watch maybe they weren't radio contact but we know that they were surveilling and there's no evidence that they ever stopped and so if the jury then hears well there's no brakes on loud you know the jury is trying to figure out well there was probably a break between the shift change that's what the basis of their note was and especially coming after the allen charge i think that leads us to the to conclude that the basis of their verdict was you know on official restraint and what happened the shift change was it brief was it longer and given this court case law i think it can't be harmless beyond a reasonable doubt because if it's a brief break it doesn't defeat official restraint so your theory is that the break in question that the jury may have been wondering about was just a shift change yes because that's the surveillance what the agents are doing in the field isn't necessary isn't no one testified that they had him under surveillance agent salling said i don't know where he was i was looking in the bushes and so the night and day shift agents that are on the field don't really go to the surveillance the surveillance i think based on the jury's not on the facts of the case and judge burns this point if there was no evidence of what you're talking about there's no evidence of that so if i were the judge in that situation i wouldn't give i wouldn't give something to the jury on speculation that there was no evidence of well to respect the evidence and to that effect i mean not you but your not you personally because you're doing the appeal but if you had been doing the trial i know i did not but if that someone could have done that but you know once you have and says over and then the jury has questions the court just can't make up what's not there two possibly three rounds are your three responses you are the st is it wasn't speculation there was testimony that the nightscope operator was surveilling him except there's a prick and that in their duty right yes we just don't know how long i mean i don't know how this works because they didn't testify but i don't know if they just pass it off to the next one is just a momentary brazier where there was that surveillance was picked up immediately after the transition after the break no there was no testimony about what happened at the shift right that's why the jury was trying to fill in the gaps and asking for a report what if there was no testimony that  how could the the perception of there only being a short break how could the beast any such perception that might have been influenced by the errant instruction if there was no testimony what happened after the break it's not a short break it's the to follow up on your honor's point this wasn't a theory of defense instruction and so it wasn't something that the judge had to give based on speculation this is an element that's a government i realize that it's an element eleven dollars of the dumbest elements i've ever heard of but it is i  doesn't change the burden of proof but it would change the body of evidence that a judge would be looking at when you get a question from a jury i understand that i mean i think for the judge that was sitting there he at least thought the state of the evidence led the lead to a fair inference is what he said that that the scope operators never stopped watching mr merrett it's a fair inference there was constant surveillance correct but this is again we it has to be read in the context of the trial so this is after the scope they after the scope operator report the prosecutor also says in the record i think it's your one hundred and sixty two well if we have to retry this case i'm going to call a scope operator next time i mean and everybody was zero in the doesn't he at that point say and i can read represent the scope operator would say and  the jury didn't hear that what he says yeah the scope operator one of them was out of town i think that's the night scope operator there's nothing referring to a different part of the carpet but i'll find a good i don't want to i think he does perhaps say well there's no evidence that you know there was that they continued but we also no one ever talked about what the dayshift operator would say and that person wasn't called either on a supermodel i'll make a brief point about the surprise release and then try to save the rest just two points showing from the record that this was an ambiguously not an imposition of a supervisor lease term the st is the context of the center and the sentencing hearing everybody was confused at the end of this hearing how many counts which statutes were on and so the judge was trying to clarify that the previously impose sentence and term of supervisor lease was too long for the term this is not what he previously impose sentence it was very clear i've been posting these are the terms here is a special assessment these are the conditions for a supervised release he never clearly imposes it he says this i think which is not a clear imposition of surprise release mourning may please the court zajac how on we have the united states there was no minor gap theory of the issue in this case from the opening argument to the closing arguments and everything in between the government's argument was consistently that the mayor is hung been seen for hours and on the other side ramirez's argument was that the scope operator just kept looking at him so in fact the exact words were that the scope never took its gaze off of a mirror those were never actually lost a visual i can't forget this that i that the for the defendant and then the judge jumps in and says her point with family defense counsel is female her point is that you didn't put the evidence on guys and get as far as saying i and the judge said this so the jury doesn't know that the state of the record is a fair inference that he was going to watch the scope and there may have i think that means may have been constant surveillance so i kind of read this record i think the first time through i thought if there was a break it wasn't a minor break because this person was curled up in a fetal position and the bushes and they couldn't find him for a period that sounds like hours but defense counsel is clarified that there may have been room for the jury to think that  they were watching through the scope constantly and there was just a shift change which would be a minor break so could you address that there are so i don't know that there's evident in any evidence to support that speculation in fact until this oral argument i thought the theory was the implicit theory was that the scope operator must have just stayed past his shift change and kept watching us on learning about this new theory for the st time here but i just don't think there's any evidence to support that speculation in fact the othe or or even that there was a shift change and that there was constant surveillance during that shift change in fact what agent stalling says this is a page ninety nine dollars ten cents of the record he says that the night watch agents told him that the scope operator lost it and could you please repeat it but repeat the quote sure so the quote that agent songs gave was that the night watching agents told him that the scope lost a visual by saying and this is the quote the previous shift at some point saw a heat signature on the it was no observation for some period of time there was a complete lack of law enforcement personnel and i've read were cases where somebody is running away and they go around the corner and it really is a very minor momentary that's right and so the court is saying i don't think this is plausible at all but what the court ins up saying at page one hundred and fifty five is going to let the inference be drawn in the court is that earlier all let you argue that i've given you the instruction says i think this is actually an incredibly favorable instruction for the defense but doubt correct so but i think there's a wide strike zone as to what instruction to give you know i were not saying that the court erred by having given the official restraint struction and then defined it but when it comes to whether the court needed to clarify that continuous observation could include minor gaps that piece there was nothing but speculation for that fact i think cast on us garcia is directly on point in that case this court held that when the apprehending agent didn't have eyes on the defendant when he crossed and wasn't helped by anyone who did that was sufficient to show beyond a reasonable doubt that the defendant was not under official restraint and that was the case even though there were fifteen other agents in the area even though there were sensors in the area the court said this is the exact quote it said the trial is not the place to test the limits of imaginative musings and so here we have pure that maybe this agent either stayed two hours after a shift change or maybe some other agent came out and caught sight of them even though stalin's testimony is to the contrary but that's all speculation it wasn't the government's burden at that point to knock down those hypothetical just to day shift seem like they were focused on this question are there only and the best i can make of it given that again there was no evidence to support this notion that there was continued observation through the scope is the jury is looking for any evidence to support defenses theory because there wasn't one at trial and they didn't get any evidence because the court couldn't give them something that wasn't in the record so the jury convicted so i really just see that note as the jury saying is there anything to substantiate the speculation and there wasn't so i don't think that notion of those error here certainly so just to clarify what i'm saying i think because there's no minor gap serious issue then the court didn't need to clarify continuous observation when you say at issue not to be picky but you think the evidence doesn't support a minor gap theory because she says she's got one she's got a theory at issue in the sense that you know i'm saying right so you mean that the evidence doesn't support a minor that instruction and then when there was a question the court like there was no evidence and that was the court's response i think that's correct what about appellant counsel is saying that if that because there's a discrepancy that it shouldn't go back and be clarified just should we should just strike one of the supervised release yes i think that statement  what or if you're saying if there's two ways to look at it then the written judgment which is unambiguous controls and it imposed that one year supervised release i don't think we let you finish answering the question about what did you mean when you said that there's no minor break period sure so number one is that regardless of what the evidence showed there was no argument at all about a minor break by either party but i also think that none of the closing none in the closing in fact the argument you just to clarify judge callahan this wasn't a response to the jury question this was in the instruction on the elements so he didn't this wasn't in response to when the jury asked about the definition of a five official restraint this was made earlier than that this what are you referring to i'm sorry the misstatement about there can be no breaks this came just in the original jury instruction not the nd there was no argument it was an even argue to the jury but a minor break so true well i don't think it came up in closing i don't think so given the facts again the jury asking for that the break between the night and the day shift operator between we have to focus on harmless error analysis in terms of you know what you're defensive and  we respect the attorneys from that and if something goes to the heart of what your defenses then it's less likely to be harmless but on the other hand when that wasn't even argued and it's not the defense then it kind of cuts against you the other way well two quick points your honor given the case law about breaks in the circuit it's always an issue of how long that break is especially on these facts but nd of all it came up with a jury instruction conference where defense counsel was saying to the judge that she wanted the specific language about being free to go at large in the population given given the issue and the government's position on breaks in this case and i can sum it up twenty a j because i was unable to find the exact site when i was just looking for right now but that's in the journey section that will find a cast all right thank