hafe knew both that he possessed a firearm and that he was in the us illegally or unlawfully at the time of possession the jury the business started that it did not have to find the mr he knew he was in the it's so there's a traditional rule that the government particularly where you have a serious offense like a felony that the government has to prove mens rea a for all the elements of an offense that  traditional crime where the mentoring element where the element pertains to the defendant status and there are three that i thought one would be statutory rape doesn't seem to me that traditionally the government would have to prove that the defendant knew that he was of the age of majority he might have he might be if she's approved with respect to knowing about the victim but as it pertains to his own status wouldn't have to prove the government would have to prove that he knew he was the age of majority or bigamy government would have to prove that the defendant knew that he was married already or incest he wouldn't have to prove that the government knew that he was the father of say a child with them there were sexual relations and am i thinking about this wrong and if so why not sure i mean this is a pretty obvious that some of those how old they are or who their brothers and sisters are well you might it seems pretty obvious that someone knows they're a convicted felon and in some way and it seems obvious that someone would know that they're here on that you let on it might be that you would have the defendant would be able to raise as a defense some mistake a fact that that for example i legitimately thought that i was here  the government had to prove it as its as part of its case you weren't saying oh well then we get to raise him as sort of hermit of defense and raise a dark way it's not so much an affirmative defense as it is a failure of proof the but that's that's fun that's why i say maybe there would be some kind of mistake of fact situation where you could raise it as a defense but in the big i'm a statutory rape examples i can see where that might come what the jury has actually instructed was that the united states is not required to prove that the defendant knew that he was illegally or unlawfully in the united states ejection below was a defense objects the defendant was never provided notice that he was james to me the other problem that you run into is there's a rule of construction that when the maybe the supreme court hasn't ruled in a world on a question but you've got a uniform body of interpretation by inferior courts so you have all the shark it's ruling in a certain way in a car and congress repeatedly amending the law in the statutory law in this area but never revisiting what  what the circuit courts have held with respect to the government's burden that that reflects that the government that the that congress has adopted that you know form interpretation isn't that a rule that applies limited to the facts of that case the conclusion is it does not appear that the district court abused his discretion in applying for law to the facts of this case for the reason my jackson is in control is stuck by its own words to the to the i said that case and the general rule which you touched upon judge prior is that knowingly when used in a gross actually applies to each substantive element of the crime there's no reason to vary from that rule here though one possession of a gun alone is not enough to make thing i'm struggling with though is i can't think of an instance where in a traditional crime setting the government would have to prove that the defendant knew something about his own status when i think about it just as a matter of traditional criminal law examples i think are for statutory rape bigamy and in and in none of those situations does the government have to united states versus jackson this court upheld a similar jury instruction over the defendant's objection to defend in that case had testified that he did not know of his prior felony conviction it over the defendant's objection the district court held that it was not necessary the united states prove that he knew of his prior felony conviction rather only that he had been convicted jackson is binding it resolves the issue before this court because united states was not required to prove that he knew of his prior felony conviction under nine twenty two due one likewise the united states is not required to prove re hafe knew that he was illegally or unlawfully in the united states could he have raised a defense of mistake of fact i know we didn't hear ok so it's not something we would decide i did think he could have let's say could he have said i had a reasonable belief that i was here unlawfully and assert that as an affirmative defense and and asked for an instruction about it i know it didn't happen that way but what do you have a position about that i do and that's exactly what happened in jackson he five he had a reasonable belief that he did not have a prior felony conviction because he thought it had been expunged and our first offender act after he had filled the terms of his probation and the court held in jackson that still it was not necessary and they over over his objection and his request for an instruction for that affirmative defense they held that still was not necessary for the united states to prove that he knew the facts so did did we hold i don't remember this from jackson did we hold that he couldn't raise that as an affirmative defense to correct he were quested the jury instruction that the find the defendant not guilty if it found that the evidence failed to show beyond a reasonable doubt that the defendant was convicted of a felon or that he did not reasonably believe that he was a convicted felon at the time he possessed the firearm in the indictment that's correct but  went to the to the instruction that he had requested for his affirmative defense that he did not recently no answer doesn't appear from jackson that he requested an instruction on an affirmative defense if he showed it corrects and we don't know whether he showed in that case or not i mean let me ask you this if you got a copy nine twenty four i know it very well i don't need a copy here's the deal it's rather unusual because they put the knowledge sign or requirement in the penalty provisions are and the same in one of the cases discusses it that the reason they did that is because they wouldn't have to repeat it seven times thereafter and also possibly the thinking well if we amend some of these other seven provisions we may forget to put it in there in that term except whatever the reason they put it in the penalty provision  congress wanted to convey his position how would it have said that and in nine twenty four eight to whoever what ever knowingly they could inserted the word knowingly before in one twenty two g one as well you know but i my question is if they want to put it in the penalty provision for one of the better term efficiency drafting efficiency purposes how could you phrase that to make clear that you were requiring it as to both elements are all elements premise of my question is i don't think you could stand unless you thought that saying knowingly violates it is trance geve to all the elements that contained and i think that's the best argument for the have thirty years of precedent from not just this circuit but every other circuits been uniformly applied off of the legislation are correct so but in the gun control act they sought to to fix t provisions one it was too onerous for ordinary citizens environ dealers but at the same time they wanted to enhance the ability of law enforcement to fight violent crimes so from that you would infer that they're not trying to make it simpler for these convicted felons or in this case even in illegal alien to possess these firearms and say oh i didn't have knowledge of my private id status and they were trying to increase the government's burden to prove to convict under the same statutes what do you think about the point i had raised about right the correct analogy are there other things that i should be thinking about that would be example serve or i've got a view about that i your three examples are very right on i agree that the government for the most part the united states the facts certainly suggest that they should know what their prohibited status in each of those for incest for bigamy and certainly in this case with mystery hafe being academically dismissed in two thousand and fourteen and a whole entire academic year he didn't take spring classes he didn't take fall classes it was an entire two semesters that he was out of school and he was here he had violated the terms and conditions of his visa which is specifically to be pursuing a course of study which he was no longer doing the facts in the record indisputably suggest that he knew that he was illegally unlawfully in the united states so the fact that it would have been awkward oh they could have rewritten it to say whatever knowingly violates the non jurisdictional provisions of section nine twenty two g that would cover everything because until just a couple of points number one the fact that the penalty provision is in a different statute is unusual of course but it doesn't make the actual statutory language but nine twenty four a two ambiguous you have any theory