questions and i want to because i see this case i probably you know some of the things that i'm seeing here would be favorable to you but they were not arguments you mate so i want to i wan guilty of four ok and so then we have the conspiracy charge then we have the agency charged and then we have two different charges that are based essentially on the s f eighty six dollars and we sort of interestingly have  i have right on the conspiracy charge right there are a couple types of conspiracies you couldn't just aid and l a and illegal alien or immigrant or whatever you want to say or you can do someone sense that you're focusing on the intent i'm trying to look at it from the standpoint of a prosecutor you know what do you have to prove and for a conspiracy i think there's i'm finding a good argument that's why we asked you to talk about the ola it was an element that the prosecutor was required clue that he was in fact an aggravated fel prove much like i would say i was trying to think all this through because you have some of these cases and let's just say a bank robbery case you have to have you have to create that it was a federally insured institution and if the government doesn't prove that i've had cases where it's been found inspections the evidence because they don't bother to create the bank of america is the federally insured institution and therefore there's been a failure of proo seeing the government argued that somehow they're fat or they're proof changes by virtue of the fact that it's conspiracy so that they no longer have to allege what all the proof elements are of the underlying offen and you're not really hard on that and that's something that's really traveling about this year well here i don't i don't know if you are have been able to it's a political authorities found in the last few days i've been looking at those of those then there's a failure proof in fiola the court talked about the two purposes of conspiracy which are an intuitive process so you need the actual status to be satisfied because it's approaching the real crime or there'd be a grievance is a separate harm that conspiracy is aimed at and if you don't have an agreement on that alan either then there is a failure and here we don't have either your honor as there are pointed out he was not an aggravated son and that that you have is an agreement to assert that a person who nobody ever agreed with an aggravated felony and who is not actually an aggravated felony neither i didn't feel it would be satisfied at that point knowledge and intent are subject to a heightened standard of proof is yury isn't simply free of the normal to make any inference from the evidence is reasonable under ingrim that was submitted as a supplement authority also the united states versus medina   augusts he filled out as eighty six correct all right now the way that this was argued to the jury and everyone seemed to i guess the jurors did not they didn't actually  jury everyone just sort of assumed that it was just argued like it was seven years and then there was arguments are the car it's ambiguous or whatever and the jury never saw it but when i'm looking at it i'm not sure that question is  asked to pass contacts there is a disjunctive phrasing of close and or continuing contact such that the close contact doesn't need to be continuing to qualify well but your honor but it when the person to whom your argument before your time runs out i do want to circle back to count one again setting aside the late argument that you raised in the twenty eight day letter regarding the proof that the government has to show believed that garcia was an ag felony is enough so so i think that you know i left open that door and with regard to answering that question how would you distinguish this case if if we were to go enough if the family believed that the victim is a minor even though the victim is really an adult or cases like forty six a forty one drug conspiracies where the defendant may have intended to distribute one substance but it turned out to be another so wouldn't there be a direct conflict if we were to go your way on this question i don't believe so your honor because as feel offended the harm is think i'm not making my question clear ringback i understand the late raised argument regarding meeting of the minds and so there is i'm assuming the government's going to try to argue waiver on that i think that if it's locked away that's that's quite a difficult question but assuming that we set that argument aside whether in wave or ground or or say that you lose on the merits then you get to the question of whether fiola answers the question of does the government need to prove more than just that the defendant believed garcia was an aggravated felony when in fact he may not be so kind of a mistaken belief and i'm looking at them the lineup like a possibility line of cases and other cases like prosecutions for  the courts and we don't have the actual standards here we don't we don't have proof that this family operation went on providing five people and went on for thirty days so it's like an impossibility maybe this can actually happen but what the court in did was it person who basically assisted and inadmissible illian to illegally remain in the united states and that alien is a grade a felony if the government proved as to that single defendant case that the defendant but that then that gets to my question which i'm not sure that you answered or that i understood your answer if it's a single defendant case and we set aside the conspiracy argument whether they're speeding up the mines how does holding that in absolutely fine so i guess how do we make sure that if i'm inclined to agree with you if they just charge him without the conspiracy and the aggravated felon was an element of it to me it seems pretty simple that you would have to prove that they're an aggravated felony ok the conspiracy gets a little more dicey for me but but what about the how would it but let's just say  up you know like they're not really you know sometimes like you the property isn't really stolen because the person you know they set up a storefront and then people come in and dance staff or that or cases where they set up chat rooms and it's really an officer not a thirteen year old girl does that not actually exist but there there is that it doesn't matter because there's an agreement between the defendant and the other person that it does exist and another who both believe that they are going to be encountering a minor that is the harm is that agreement to that key element and here we don't have the underlying status you know in his boxer shorts and i were the police i don't i'm not aware of any case that is held that when an element is not just merely jurisdictional that it is enough to prove that only the defendant doing a minor but really the the the person that he tried to induce into a sexual in gauging in sexual activity was actually an adult and the conviction was affirmed in that case your honor it was not a conspiracy case that's why i said set aside the conspiracy issues because i know you're raising distinct issues on you know there's no meeting of the mind because it's a conspiracy you see case and if you've got a single defendant who basically thought that  victim was a minor but in fact the victim and that being an adult that conviction is sustained all you've got or if you've got a defendant who you know attempted to traffic cocaine and it turned out to be something else that conviction i think we've sustained that as well so here you've got let's say a single defendant who is charged with a one thousand three hundred and twenty seven he believed that the person he's trying to help is an aggravated felony but as it turned out you know the  tension then between back holding and i think the cases where there's mistaken belief as to the status of someone being a minor it turns out they're an adult so that's what i'm looking for like how we best reconcile  fail to make an argument on appeal you waive that issue for purposes of appeal and you can see the prejudice that the government is suffering which is that i don't even know that case i didn't have the opportunity to respond to most of our local thing is you've known all along going into battle that mr garcia was not an aggravated felony you knew that starting the whole thing so i'm  just i'm having a hard time getting my arms around the fact that it seems to me if you had charged him scammed alone you would have to prove that you would have to print as the element his aggravated status or you would have to charge him under the other section which is a lesser section and that suddenly if you go the conspiracy that that lets enter burton so i don't actually know the answer given what judge win is raising about the there may well be an argument that we could have charged him and actually prosecuted him just for the substantive offense even with the aggravated felony status element if not we could certainly have charged an attempt crime where you can't meet every single element but you do attempt to bring in someone you believe to be an aggravated felony crime you cannot claim this point that case you never heard of that case or you didn't think it through that way that you're somehow i mean you know prosecution one o one is you charge people with what you think you can prove and what are the elements that you have to prove and you look to all the different ways and that it was a weakness in your case that he wasn't an aggravated felony and you picked an approach and if it if it doesn't work if the law doesn't support it then you left out an element of what you have to prove right think i would like to address the merits while i do think it's waived if the court does reach the merits of this question it should hold and follow the rosen case from the nd circuit which is to say that or the purpose of a conspiracy charge the status element is comparable to a jurisdictional element which is an element that only one member of the conspiracy needs to believe to have to be true in order to affirm the conspiracy conviction and the rosen logic is actually consistent with this court's precedent in rosalie which the defendant cited in a twenty eight day letter before effectively retracting that but the rosalee case that for purposes of a conspiracy count corchado that you do not need to show a meeting of the minds with respect to a jurisdictional element and that makes sense as to a status element to because the status element like a jurisdictional element is you know there may very well be a meaningful distinction between a purely jurisdictional element like the interstate commerce jurisdictional element and the status as an aggravated balun which seems to be a little bit more substantive and and do we have any case law that answers that question as to whether the status element of an aggravated felony is just the same as a jurisdictional element such as interstate commerce no we don't have any cases that answer that question directly the reason i think that the analogy doesn't make sense is that defendant argues that the aggravated felony status element creates a more serious crime because we prosecute this under one thousand three hundred and twenty seven dollars as opposed to and twenty four dollars but the federal jurisdictional element creates a crime so without the federal jurisdictional element there is no federal charge whatsoever so clearly a defendant is subject to greater penalties under federal law in fact the defendant would be subject to zero penalties under federal law without the federal jurisdictional element which is god let me ask you about my bank robbery you have you know if you're doing a bank robbery you have to balance the federally insured institution federal insurance status line of cases because those exist for the purpose of securing federal jurisdiction the reason the government the other element robbery and i mean you have to i'm going to be no doubt you can charge the robbery  this case in the trial court and briefed on appeal which is the government has to prove that there was an agreement to assist or aid the entry of an inadmissible but you could argue a different section that wasn't the aggravated felony right water the final reason i would really urge this court to consider it's how complicated it is to determine that somebody is an aggravated felony when considering whether that should be an element from which there must be a meeting of the b defendants in a conspiracy must all agree when even today i think most of us might disagree on whether this was an aggravated felony is simply something that would have this separate the conspiracy charge in this question is merely whether those qualify as aggravated felony is under the category or the other issue i would like to address at least briefly is judge callahan's question about chemistry and or again i think the cisneros that and no offense to his public defender there's nothing about this case that you think like oh my gosh this is exactly how we want our law enforcement officers to act ok so he has of prejudice surrounding him in terms of the things that we know to be true but that being sad if there's an error or if it's maybe i have trouble not finding it to be prejudicial you know you want to find him guilty of something because he just isn't a very he don't want police officers doing this but if you charge him with something that you don't  and that ended and the jury never even gets to know what you have to prove and you're arguing on the state and theories that bit that troubles me i would be trouble too i believe your honor in this case we did prove that charge pos or relate to a question that is framed in both the past and present tense and i would direct the court of course to be have you had language closed and continuing contact which i do recognize is followed by the are bound by clause but the are bound by clause does apply here even though the contacts may have stopped he was still very much to garcia and his coconspirators based on the fact that  actual question the essence eighty six was to the jury and that a reasonable finder of fact could conclude and the jury's verdict was rational in determining that defendant had garcia had it close and or continuing contact within the last seven years and remained found by luhansk common interests based on the past on time because indeed even in two thousand and seventeen defendant was lying to federal agents due to the fact that he was found to his coconspirator for whom he had done quite a bit favors and breached his duty of loyalty to the government i would like to address the  case but the fact that cites i apologize for going back and forth between these two issues that i did have in my notes that in order to distinguish they kill each case which is for the precedent the defendant points to has as her best case he business did involve five people for some thirty day period so that case falls squarely into the field like context where the government shows not be jurisdictional element was met notwithstanding whatever men's rights the defendants might have so i think ultimately what this case comes down to is closest to the nd circuit's decision in a row and consistent with the regarding counts three and four what arguments the parties make below regarding the continuing interest a common interest obligation specifically what w a contested issue if so how did the parties handle that in closing arguments or in terms of development of the evidence at trial i don't believe that not was contested i believe that what this was a k a case about  straightforward for the jury and for the way the parties presented it and that the defendant's argument was the argument on appeal which is that his contacts just simply weren't the type of contacts that were covered and therefore he didn't intentionally lie when he failed to disclose so i don't believe anything i have a lot of or even on appeal raised that claim well let me ask you if it's if someone's like these agents that are always dealing with people that are crossing the border and do in another question on the form i i don't know if that would qualify as a sort of contact that would be part of this question but that's another issue that defendant didn't raise or lower on appeal so i haven't really looked people than the rest of us do well i agree and i think so people that are crossing the border and people about legal status and people you know all sorts of things i kind of don't think that i'm fat in the agent's don't let stanley case that they have that i mean they could be i don't i don't know i just don't think so but i would take that same bet your honor and i would bet they don't because i think that they construe this question the same order to commit a crime and ultimately that's why this court for the firm i would ask it to do exactly what the jury did which is to find that defendant was a corrupt federal agent who should be held accountable for  did the work for garcia calling up the border patrol agents and officers and asking them to grant garcia benefits to which he was not entitled just as a sports agent or a movie agent might call someone up one and i don't think it's a plane error not to give a definition of a concept which i think at churches like any of us could have understood to mean the same thing it means in the context of sports or entertainment in california to i think it was just tracked the language of the statute because there were three discussions as to what the instruction would be and each time the defendant attempted to preserve some argument as to what instruction he was going to propose and ultimately didn't propose any so the court went with the instruction of the government proposed which track the like language of section two hundred and five dollars and granted your honor that's not a was something very bonds paying something he said i this is my friend he's helping me do these has and has and i have some money every once in a while because i you know i felt like you know he was helping me out that wasn't enough to create agency  even if some limitation on the relationship is imposed by the principle that's still not enough either under bonds in the restatement you need to have that there was an agreement between the princeling agent that there was a control i also would like to and ratification really only deal with not with actual influence or real agencies but whether a putative principal can be held liable for misdeeds of the agent or things like that that's not what's really being of agent so dire that argument to where i believe that all of the counts river for instance was alright to either of my colleagues have any additional questions not me thank you day that he completed the s f six why do you or do you or do you not adopt that approach and if not why not and if it is on the day of the war was filled out what evidence is there that the relationship with mr garcia qualify and was required to be reported on that particular day i think your honor the question that was posed to defend that in tw fourteen august two thousand and fourteen and said do you have or have you had close and are continuing contact so i think that the question asks about close and or continuing contact over the last seven years nature of that or influence or common interests nature must be in the present and the evidence supporting the fact that he was still aland to garcia in august of two thousand and fourteen despite the fact that the contacts concluded answer six means if it's calling on the reporter to list relationships that exist today because of the predicate in the past seven years but this is that this court decides that's what it's still continuing to be by this common interest or influence that is indicated by what happens two years later in fact in two thousand and sixteen when garcia working for the federal government goes back