where there is no evidence of conscious avoidance no bit middle ground and what why isn't why isn't the jewel instruction ok because it's the defendant's opening statement gave rise to a likelihood of a closing argument on c or at the opening statement open the jury's eyes to the possibility then in closing argument the defense could have argued well the prosecution never proved beyond a reasonable doubt that you knew what was hidden and then also the defense impeachment of his statements that were called his confession i also suggested the possibility the lawyers have to have the asking you is how does the prosecutor know and how does the judge know what's coming in final argument well your honor version a strikes me as a real possibility been done but i do not know i'm thinking there was evidence to support it i'm thinking particularly after you consider the impeachment but even without it the impeachment suggests that maybe because of language difficulties if you didn't confess at all nobody knew what the other person was saying so what you've got left is the guy bars a crock at from somebody else right across the border and it reese to drive it across the border from and a reasonable and somewhat skeptical in the vigil might think oh he's probably being hired to drive across the border if somebody asked me when i was in to you want to would you carry this across the border for me first thing i think of would be carry my briefcase across the border no i don't think so and so just from the fact of somebody asking him to drive the truck across the border the first thing the jury thinks about is gee i wonder if he knows what's in the truck i wonder if he wonders what's in the truck i wonder if he's almost certain that what's in the truck is carefully avoiding finding out what's in that frock  and it seems like just the fact of the mule set up maybe enough to allow the fool instruction you want of the jury might might have said that themselves but that's not enough  through and you have united states your honors i think it would have probably been better not to have given a jew instruction in this case and i say that not because it can't be defended i would like to defend and one minute but i do think that vehicle and i think all this occurred in the middle of the night but the jury could have thought well but we don't think that he said that he knew it was marijuana that the agent read that into it or that didn't happen because that was an initial law so if you take that part on the one hand there is not sufficient evidence to have generated these jealous traction in the first place but on the other hand it was an arm of their own we have some holding right yes there are cases that hold on and so your objection to it is a generic objection it's not it's the border at neither you nor i would accept the package or the truck or whatever it was at but in this case the story is that the defendant and somebody else hey can i borrow your your vehicle and the guy says ok well that gives rise to much less of a concern if i go to her to rent a car to get a car in tijuana i don't worry much that there's going to be marijuana however when the guy virus the car from is paying him instead of him paying the guy bars the car from i wonder if that puts me right back where i was when somebody asked me to carry a package blow harms because of overwhelming evidence of guilt beyond a reasonable doubt relying also on the back of q ok what about if we don't go the harmless error route is there an argument that it was not ever and that was the first argument that i made which was that the jury could have disbelieved given the attack on the statement which was that the only part of the team that the referred to marijuana was the one part of the statement that was an initial lot by the spanish speaking with or whether it's overwhelming evidence to the point of the of the air being harmless beyond that i'm not quite sure but there's very strong of this beyond if i might have thirty seconds to go into it  had an ulterior motive and that if the jury believes that he got a thousand dollars why isn't that something where the jury is immediately going to focus its attention on c enter and leave the jewel instruction but it strikes me as entirely possible that the jury thinks that the officer fancied up the confession a little bit but never and that's why they didn't put the spanish speaker on but nevertheless that thousand dollars or he knew something was in that truck been determined to be appropriate are those type of cases if you look at that i was at a gallop for those cases so that when the dockyard says drive this car cross the border and don't open the trunk and the guy doesn't open the crank if you can't beat