good morning your honor is doug heller on behalf of mr martinez the district court reversible error in this case when it denied mr martinez a motion to dismiss in a reversible error began when it responded to a jury no without first consulting with the fence counsel he was threatened it's our position he was threatened shortly before he left in two thousand and five so he left the united states and then was gone for seven years and i've been deported back in two thousand and thirteen so there was no time in which plausible they would have tortured him if he were to return to isn't require some acquiescence by the government it does and i think the key for us and acquiescence is that the rampant corruption in the police force in corruption particularly the police and judicial sectors police and military involvement in serious crimes just kidnapping drug trafficking store ssion and it goes on to note that even immigration officials for guatemala took place took part in some of the violence we also pointed to the brands report the military defense analysts who sort of echoed the same things and we provided evidence from one of mr martinez is neighbors who said that quote police in guatemala are very corrupt on is that if there's corruption that can count as acquiescence and so here i think we do have the evidence to establish that there is corruption and so therefore we the evidence that there is acquiescence if you actually did too much the reports from which these and the court had access to them and could have read them if if he wanted to so if the court has no further questions on cad i can discuss the jury no issue briefly that the parties agree that standard what the court ended up doing is providing a very confusing or sponsor word in two sentences about told the jury it was to consider the date and it wasn't to consider the date i don't know how the jury could have possibly interpreted that but i think this is the very reason why we want to fence counsel there in the form of a never spawns to the know so we make sure the jury doesn't get a confusing response to their question i think what happened here is your court took this question as just well once we make the finding do we do something with that but that's not the only interpretation of the question i so it's a question what on juries asking what the significance of this finding to be what do we what's the purpose of this what what standard do we apply is it the same significance as an element offense and i think if you would have been there to discuss the issue with the judge we could have brought that to his attention but i think more importantly even if we would've agreed with what the judge said in response the important point was that day so where do you think he meant by its nature for the court to consider not the jury i think what he was trying to say is that once you check off the box then i'm going to do something with that finding that's not for you to do something with but i think the way it came out it came out very confusing and in a bit our in articulate i think the judge  so i think again this is why you want to bring in defense counsel to have a discussion about how to respond to these notes especially when it is a question about something as important as an  plausibility may not be the hardest standard in the world this court's presidents have made clear that is more than just possible and specifically with regard to count relief there are two prongs to count relief you have to show that it is more likely than not  would be tortured upon the return your coat your you know your country of origin in that the government would acquiesce but that first prong has a more likely than not which is more than fifty percent when you look at the evidence in this sentence affidavit in support of his claim you can read that that excerpts reparatory six twenty seven multiple times you'll never see anything in there about this defendant ever being threatened by the eighteenth street gang before he left guatemala instead all the consensus conclusory certain that he felt he would be in danger if he returned but there's zero evidence about any past torture in the record is clear then and i believe i a dispute between the parties about the clarity of the record keep in mind that on prejudice the law of this circuit has been clear for decades going back to prototype of our nine hundred ninety four the defendant unequivocally has the burden of proving prejudice so if there's an some gang member started trying to force mature in their giving and this is the second paragraph on that page and this is where allegedly the gang made a threat you either have to kill someone your family or we will kill you or your family that paragraph says when he was seventeen or eighteen that would have been in one nine hundred ninety nine or two thousand in an even i believe it excerpt of record for in the defendant's own moving papers he admits he joined the gang when he was a teen if you were to take this statement at face value that this was sort of his threshold test for entering the game to prove your loyalty to us you have to kill somebody from your own family this would have happened this threat in one thousand nine hundred two thousand but instead he it not only does he not fulfill ala his aunt and his grandmother with whom had been living moved to another part of the country and then according to records there was no violence against them for the next seven years i believe his maternal grandmother passed a natural causes and twenty eleven but when he court specifically held that any evidence of post removal violence cannot be considered for purposes of an attack on an hour like departure we or deportation we have to put our ourselves in the shoes of the immigration officials at the time of the event so here in two thousand and twelve as when this administrative removal occurred the only evidence of actual violence and this is what the almost all of his witness statements went to considered something that happened in the fall of twenty thirteen so by definition is unfortunate is that event is it doesn't bill to the issue and again he has the burden of proving the plausibility of relief could you have to leave  the burden of proof but the government would gladly embrace that burden here this issue about the significance of the date as i believe the parties in agreement there is only one significance of this date that was the date that the defendant incurred his child molestation conviction if you prove a rule subsequent to that day it becomes a matter for sentencing it increases the maximum from two years to twenty years because that's an uncontested aggravated felony so when the it is what is the significance of that date the government would submit the most reasonable reading of the record is the only significance is punishment and it's interesting i mean that's basically what the district crighton we argue that it's not structural or because we don't believe this is that this happened during a critical stage and when you are agree that while the jury is deliberating if they have a question whether that this is a critical stage well i think the point of that you're on or not and i believe my opponent makes reference is that is a question without doubt about the substantive law that they're holding the defendant that goes to guilt or innocence and is that a critical stage could proceed my answer is that it turns on the totality of circumstances the critical stage inquiry is to what extent could in attorney help to what extent would the defendant's presence help that's why when you have questions about are we going to  judges not calling you counsel when the jury asked a question that well it's deliberating and in my experience the first thing you do is you call the counsel and you never answer that question without consulting counsel right i don't in particularly i don't find his answer that's going to the plane air part but i don't find his answer particularly helpful because he said it's that's an error for the court and  know you can't give them that answer that's too confusing you know go back to the jury instruction or i don't know if there was was there a special verdict form on this was and so they had to check that she had to say did after this day even if they're going to see even if the answer is as simple and thinking as well just look at your instructions but they are i mean i've never i mean i just think it's very unusual that counsel wasn't called in on this question and i'm just wondering is that because people assume that jury deliberations are critical stage and if the jury has a question that could make the because we want our client to say as little as possible in declaration because obviously judges generally take a very skeptical view of what they say as as demonstrated in this case and so what we did is we had objective third parties talk about what happened and so we had not one not two but three witnesses talk about the threats that took place before two thousand and twelve that's an easy our thirty five or thirty nine and you are twenty nine your position it addressed it in the case franks in the court again basically said more or less all notes are structural there and in this case in two thousand and nine comes out mosen which essentially recites every case this court has previous even cited on jury notes and whims them to their facts and so what i'm trying to do is say even if you limit that rule to this very bizarre way mosen did i still think i win because it falls under the rule that courts set out you know i was i was  inconsistent with this prior on both decision then of course the on bank decision controls although you know like i said i do think this case is an easier case because i think even in sort of the bizarre test moses locked us with we still went all right thank you