please try to bring your remarks to a finish if we keep asking you questions and don't worry you're on our time and not yours in just trying to keep the conversation going until we've exhausted a time with that judge to being a judge rules and bomb and i are ready to go and we'll begin with our first case number seventeen dash one zero three nine seven united states versus jason agency website but if we look even to the record in this case the by the government's own admission there's no codified literature that law the only place that f alone appeared after the fact was on the website but when the d listed its register it's actual official notice which is where we derive our fair notice principles and we defer our statutory interest it was listed in the on line at the time that your client  earthly define it now even assuming that the codified definition from two thousand and seven assuming for the sake of argument that that on its own terms doesn't require broad application of that definition throughout the c s a it's still appropriate when determining the meaning of an undefined term to look to how that term is used or defined in other provisions of the same statute or on the other hand it does  and there if you just view that section in isolation there are two ways to interpret that one is that it's a law da is pointing out where that term is relevant or at least one place where that term isolation we agree that it's there some lack of clarity there some ambiguity but this court doesn't just view a provision in isolation it looks to the entire statutory context to determine which at the da was operating on the premise because at the time in two thousand and seven the term positional isomer did not appear in the temporary schedule and if you look at the commentary  says that the only existing references to the term positional isomer are ones referring to the permanent schedule of holding you make a good point about why why the da did or didn't do what he did or didn't do but that creates a problem for you in my opinion because what may have seemed appropriate to do back in two thousand and seven for the reasons you just identified means that the da didn't update the regulatory language as it should have one sadat it positional isomers to another portion of the regulation which created criminal liability that's what it should have done right if if if there's no reason to give any other definition in two thousand and seven because positional isomers only exists in one area but after that point in time positional isomers now expand to other areas then you've got to update the definition the da does not update that it's a very simple thing to do that just didn't do it well now that agencies are supposed to roll back to regulations for every new one it might not be as simple as well but that doesn't speak to what was happening in two thousand and fourteen fair enough and i mean if it does it doesn't justify having  something so even if the definition section on its own terms doesn't reach that section you still have to give it some meaning and it's appropriate to look even to other places within the statute outside the statu bad and i decided to look at title twenty one of the code of federal regulations and i decided that i was going to get involved with be the loan and that's a loan because they were profitable synthetic what would i decide as a reasonable objective observer about what in the world positional isomer meant so i would first look throughout the c s a to see this how is this term defined if at all the only definition you would find it's a different case if there are multiple definitions in the code and it's not clear which one applies but the only definition you would find is the one codified and if you were looking to get into the ethyl loan business it would be a reasonable person knowing that the loan under that definition is a positional isomer of butyl loan wouldn't disregard isomer is not universally defined and subject to different terp or taishan so it was important that it make the definition that it had long used public were not aware that the record shows th has not used any other definition of positional isomer and if it were particularly given that it made public this definition and the reasons for doing so if it was secretly using some other definition it would be very important that it make that definition public too but it's never done so let me ask you something just for purposes of this  first of all the evidence at trial shows that he had noted it and in response to one of the agents question at the time that when they after they searched his home they lenity but my understanding of the rule that if there is notice that would amount to due process for the that we can construe an ambiguous statute and such a way to provide appropriate notice i'm wondering here what is the notice we would use and i asked opposing counsel some questions about that is why i just  it's comparable to agency literature like hand an opinion letter this isn't some scrap of paper posted to a bulletin board and what makes it an get our deference only to the extent that they're able to persuade on their own through formal channels is interpreted in one of congress's statutes then that level of formality is required what sort of deference are you talking about than it is our deference i know what does it mean in the abstract in the content so it means that we defer to the d a's interpretation of its own regulations she can defer to no matter what so long as the materials are not don't plainly contradict the terms of the right so either goes free or he gets retried there and really no other alternatives so here are two alternatives first pfeiffer's theory is that you should determine the word based on it's a stablished me so even if d it's no different than if mr bashir had convinced a district court on if he was a trial lawyer or not but if he had convinced the district court to give only his definition of a positional isomer and excluded yours that wouldn't sit well with you i would know it wouldn't your on and the reason is that the principle that you look to when you're dealing with a term of art you deal with it's established meaning in well here we know of the d says and it's commentary that there is not one single established meaning so positional isomer therefore the term is undefined and proving that some positional isomer under any established meaning of  would presumably suffice that's assuming that this particular state here is saying that i so you're saying that no matter what this is harmless error yes your honor even though his expert testified to x and the district court refused to give an instruction based on that with regard to the deaf he gets no relief assuming that you lose on the definitional issue  if your honour's determined that he's right and you're wrong so the district court should have at the very least given his requested jury instruction and you've taken me in a whole different tangent but my question was going to be to you didn't you put your all of your prosecution all eggs in the definitional basket and not put on any evidence to sustain a verdict on a different definition and if that's the case why isn't an acquittal the appropriate risk even assuming through some mechanism that expert testimony at trial as the most common definition very of this term is even assuming that's relevant or not i'm asking you to assume that we've concluded that it is relevant yes then in that case the district court ought to hear from both experts to determine if that's the correct means of determining what the definition is as a matter of law and the district court ought to hear from both experts and make a decision outside of the jury's verdict after a trial without submitting to a new panel yes your honor because the meaning of positional isomer is a question of law dr d testimony but relevant at all it shouldn't have gone to a jury for the jury to decide well the view but the jury needed a definition that's why he gave a definition that you requested the jury couldn't have been a not that you had to accept it or the jury had to accept the didn't he provide a basis for a different scientific definition  partially right or to hedge its bets and the district court at that point said to the government you don't need to put on that evidence because i've agreed with you on the definition yet and that's this is a really critical point  we don't need the we to make a profit you don't need the actual was there what i'm saying is what we don't have is the clear basis about what would be that rebuttal testimony because there are two contradictory things well the