the morning hours may please the court my name is timothy scott of you have to be a parent this is a longer about being us we're asking for reversal for three reasons in this case of the first is that the government concedes that it repeatedly misstated the law in closing argument and urged arguments the government admits that it was improper to tell the jury that the desire to go to jail is the desire to be free from official restraint they recognize that's not the law the question becomes was that nothing to do with the point that you're arguing which is the desire to go to jail in this country but the government agreed to release that somebody other than the border patrol could impose a facial restraint at the border like the or whatever which has nothing whatsoever to do with this case in which the evidence shows an intent to get beyond the official restraining order and  jail refers in this country probably it has everything to do with that because the cases that the government relies upon that this court has relied upon in outlining official restraint aren't limited to the border there have to do with ellis island things have to do with people in prisons where for trial i'm sorry that's border control official restraint is the border control doctrine to implement the immigration fiction that if you're stopped at the border you have not entered the country even though you actually have set flight within the borders of the united states that's right it's been used for decades to deny its mission or so that's what the intended to be under official restraint but if you go to jail it is only at the pleasure and with the consent of the united states government which is in the herd position it is absolutely nothing to do with official or stright of course the attorney control mechanism if somebody comes over the border and is caught after the border is under continuing surveillance and is caught at the border we deem them not to have entered the country so they are  therefore excludable rather than deportable and for criminal purposes they haven't entered the country that's right but my proposition to you is what your client said he wanted to do was to go to jail right totally different he wanted to be restrained for whatever the reason but that's not official restraint under the immigration doc rematch just plain dirty you know ordinary part of the united states population that's goofed up and gets put into prison you know i disagree with that proposition because one because the cases where someone is either held in prison in the united states or they're time we're going to simply put being inside a jail is not the freedom to mix and go free among the population in the united states these two components are going along with the game and they may be in jail they might be in hospital they might be in all sorts of places for the live my point is that's just a play on words well i disagree i think the fundamental question is is a person who was inside the united states only because they were polled them for prosecution having entered the point is he can't get there unless he actually gets arrested on the stand there with permission of the united states i mean the facts are unique in that he didn't try to sneak into the country he wasn't trying to wander around free he actually i went up to the only border patrol agent that was in the area raise his hand that said i want to see immigration judge i want to go to jail that is not an attempt to enter in the legal sense but rather is right that it does turn on his intent and his intent was not to try to sneak into the country which is what the law stayed at this and told to be allowed that's when he was out in the field and actually the prosecution wasn't even going to bring out these statements as trial except to show in which the part about his saying that he was a mexican national he had no immigration documents he knew he was in the country illegally is correct that custody at the border by any government agency is official that's right that is our concession but we believe that he is right that his intent if you know if you taken at face value that his intent and i'm sorry that was a piece twenty two of our brie least seven hundred fifty yards away than he would be outside of the constant surveillance of that area and so he would be at large in that period the united states recognizes that it in order for there to be entry have to be have actually crossed the border and to be at large to go into custody something could happen in that two hundred yards period where he's walking up to realize you should be able to have gotten emergency call and had to leave the area because there was you know five you know like there were hundreds of people trying to cross you know for the down the road and so they had to divert resources gets the idea that you don't have it's not just physical crossing of the boundary that gets you entered into the country but also the village before after you're at large and as long as you had that intense fear then the jury would convict him so if they believed him that you know he was going to be something they didn't believe him and he was really trying to sneak into the country and this jury instruction satisfied that he was trying to sneak out and the evidence supports that alternatively if the jury took his statement at face value if you think he didn't tend to go to jail to take him to jail what happened here that's what this jury got to see and united states be hollaway the court emphasize that it's not the issue of what happens once the other side you know harm the victim and then he doesn't know at that point before the victim is asin responded whether or not the car keys are going to be turned over whether he's going to have to commit violence and the courts found that sufficient for conditional tat we have to look at that similarly it excluded the only and present united states for nine years quote the still in the theory of the law at the boundary line and has gained no foothold in the united states there's a case matter of uganda which says that in healing this down at the border but taken inside