know that from the united states versus polis a recent court decision by this by this court that the jury is required to decide the issue of statelessness and that must be proven beyond a reasonable doubt unanimously according to the six men and amendment of the constitution here the jury indicated its confusion on its duty to be unanimous as to the issue of statelessness the court did not instruct them that yes it had to be unanimous on how that's will state not stateless but rather changed a jury instruction and allowed the jury to to reach a verdict on a non unanimous finding specifically the instruction that was given in this case was charge that claim nationality or second whether the stated country affirmatively asserts jurisdiction over that vessel the first instruction that was given by the district court was the correct instruction not only did the series of things it's ok for the jury to get unanimous man element by different routes they don't all have to agree on your i do agree that there are some certain line of cases that might discuss that however i think that we are not in that area in fact i think that this court is should follow the line of cases starting with the supreme court case of richardson richardson talks about several ways that the defendant  have been guilty of the s t c e violation and in that case the richardson court reversed saying that there had to be unanimous finding and i think that the ninth circuit has followed the line of work sheets and cases and should be followed by instruction regarding the existence of a conspiracy and that court said well that there had to be united you know animist finding and in the struction given to the jury stating that had to be unanimous as to must be given as to the specific unit and unanimity requirement and that's what we have in this case it's clear that the jury in this case i was confused and was and steve's guidance by a specific question do we have to be unanimous on either because we do have that requisite we need a jury confusion and that's clear in this case and it also shows that there was a small and i mean there's a clear instruction given the only question is whether it was right or wrong i mean it's true if the jury in this case and i think that first of all under well first week we turn to the actually very case we're actually no corrective instruction was given but then even more importantly we can turn to the garcia river case where in that case the jury sent out a note and the court tried to correct and give guidance to the juries but in that case the instruction that was given by the court in order to give the jury guidance was it was related to this court held was the fatal flaw in that case was that the jury was required to be unanimous on either a b or c and that's a little flaw was that the district court said it could be any of the one possibilities and so i think that's directly on point with this case where a jury sent out a question stating we're confused and the fatal flaw here was that the district court didn't say yes you must be unanimous refer back to the jury instruction number twenty one because that's where instead the district court said no i've made a mistake i'm switching it now you don't have to be unanimous on either you just have to find it was subject to the jurisdiction i don't really see any distinction between the ninth circuit decision and garcia rivera and what happened and the other half thing there was a claim a registry that wasn't verified by columbia there's really no unfairness in convicting on that well i think that's where the court just wrong because in fact that shows that the jury was not unanimous and what garcia rivera stated along with other several cases is that this court is not allowed to to look into what the jury could have been at or what they should decide it just whether there was jury confusion and whether to appear that they were not unanimous at the time that's the relevant inquiry that must be made and i think that that's that's apparent in this case well i think we have to assume that's what we're faced with this wealth just that they were split based on the question and that's that's the inquiries to be made and i think that that's clear in this case  unanimous finding and then the court should have instructed that way as long as there is an indication of jury confusion then the instruction should have been as to protect a defendant's right to be unanimous and they should have been instructed so and again the press on a case reiterated that that's a very standard which is that we're not allowed to second guess where the jury was at but just whether there was jury confusion at all i realize we're not supposed to speculate but wouldn't the jury well and so i think that that's the what the question that you're asking me and so i don't believe that there are that it is a subset because it is separately listed within the statute and additionally that they were split on it and so they couldn't have found unanimously on one and therefore moved on to the other because they were indicating that they were split on that decision well let me put it another one with let's just if there's no claim made the country would not unequivocally assert that  situation and so i don't and so because they're specifically listed separately under the statute i believe that there could be some circumstances where they would end up contacting a country without a claim of nationality but that's really not the case here and here right we had a garcia rivera this court found that the the jury instruction was fatally ambiguous that's clear that the case here number one number two is if that line of cases goes off on the assumption that we're talking about aliment but it is not an element and so therefore it falls into the the line of reasoning as in as in richardson and more particularly in shad versus arizona where you say that if you have these brute facts underlying facts that need to go into the finding that they do not necessarily need to be that they don't have to be unanimous now the jury in this case found you know and mostly that it was a state and went and they and then the defense did not ask anything any questions on the on the issue that they now bring up well where did you find how did you find them did you find it because a person in charge made the said i you know half of us went with number one half of us went with number two under under the richardson line of cases it doesn't make any difference because it's and it's simply a brute fact or it's an underlying fact by which you get to and not only that but as we also argue that with regard to the whether it was a person of it in charge there was a factual finding by the court that that no one was in charge of but he had taurus was not the person in charge and and also there is a finding that even if even if more information had been supplied to columbia it wouldn't have made any difference that the colombians a statement was still being the same that is that it was not a vessel they couldn't determine where the other if it was a vessel so once again if you if you go down who are our secondary arguments all of this is harmless eric because because the facts are very clear that  because because all the rich some really does it just it just states the proposition that chad versus arizona stands for that you can have these underlying facts that will eventually lead to a unanimous ver we as i say the evidence here was that there was no master nobody claimed to be the master the captain and and nobody was treat coast guard and treat anyone as a person in charge and neither did the district court and and finally there was there was just no evidence to the contrary that the columbia would have done anything differently if more information had been submitted and if you look at the information that the defensive line of he submitted it still wouldn't have resulted mean anything at all to the colombian maybe they want to know where the boat is from and there was nothing on board the boat either by way of registration numbers or flags or documentation to them to substantiate the claim that in fact it was from colombia and for the questions right element they didn't dispute that the bullies in government consented to the search and so really the focus of that case was the constitutional argument or the constitutional jurisdiction over that that's one fact one of the opponents calculus here and so that's right we didn't facts and so it shouldn't have really the whole case was contested there wasn't an there wasn't a point where we were not contesting the jurisdiction in this case and then and the government now brings up a point well there's no evidence to the contrary you know next  that information was not placed on to the information that was sent to colombia and so i really do believe that there was enough disputed facts even if the court think that soccer off somehow applies that of course it should have gone to the jury and reporting the questions we attacked that line of questioning because he couldn't speak spanish and so basically he went up to the vessel with a preprinted for question why lines of question that he was only able to say the only thing he knew how to say is who was the captain he didn't know how to ask is anyone in charge who's the master and so this is the question that was actually given to the individuals on board was so limited that that what was intentionally respond is what's your nationality and that's when we had an individual stand up and take that second step and so i do think that there was enough disputed information to completely follow the palazzo decision and send it to the jury which which it did go to the jury so really the ultimate issue was then what was given to the jury was that enough and that's specifically and so that kind of takes us out of this means type argument but it's also worth to note that the district court considered the distinction between this statute and a means type argument and rejected the means argument on but when the court decided to give the first instruction it was on may twentieth during the jury instruction conference the court considered whether this was a means type situation and rejected it saying no that it was entirely was wrong later i'm sorry that's true i mean it's true but but but and i think that that that that was also incorrect but also you know there's no discussion within garcia or richardson or  and the government's ties to the chad decision but really what that case richardson has more in points than the trad the shad case because this case really dealt with whether the state court whether they were going to must follow in this case was whether this district court should have said it should be unanimous and so i think that the richest and prototype cases are actually more on point  in this case that the government says well the government or the defense attorneys didn't ask to poll the jury will i'm not sure any other way that we could ask the court to to state to the jury that it must be  discussions on whether there should be special iraq tori's asked that question and then we got the instruction the said you have to be announced as to a or b and in fact really we don't need to have the jury polled because they sent a question out saying of course they must have been split for the jury to specifically state its grounds the defense did so and so and so i don't think that there's any reason to consider that as any failure on the part of the opponents in this case considering at every stage we object and ask that it be unanimous and then the court was it was required to do so there's  appropriate inquiries to be made is whether there was joy confusion they can speculate on as to how they must have been split or where the evidence lies on that they simply follow those standards and then say if we find that it should have been unanimous and there was jury confusion and it was not properly clarified reversal is required and specifically even in the first year rivera there was a discussion whether there was an objection or not an objection and the court had to decide whether to apply to be some discretion or plainer and the court stated even under plainer it we don't think that we need to reach that issue today however even under plainer we would reverse and so i think that with the line of cases that we see from the ninth circuit that are harmless our analysis would not be appropriate in this case nor even if we were under that disputed every which way we could to columbia's response we first moved in limits to to exclude the actual document we didn't have live testimony we disputed the information it was actually given to columbia that  guard basically pursed purposely circumvented any meaningful determination from columbia and what we know is that the jury must have believed that argument to some extent because they were split on that and so even under although i don't think we even need to reach a harmless e under that there was enough disputed information that that there was harm and because we disputed you know and what was interesting is that the colombian response back was we don't have enough information at this time stand us more and so we second page under number six under letter it states we solicit any further information once the boarding is completed and that information wasn't sent to colombia and still days later after the boar which goes down to there were several ways that we disputed that second prong of the statute so when the court asks that was it i wasn't overwhelming that that this fact was true no no there was every which possible way that we jurisdiction doesn't make any difference if some of them said the claim was made in the first instance i'm sorry i think this last part yes assuming that some jurors felt that in fact that the second alternative had been proven understand the court's concern on that all like all i can state is that it specifically enumerated separately in the statute and really the court the government saying well no no there has to be a claim of nationality by the master charge before we even reach the second s to be but now in fact in this case we can look at the record in the government's whole standpoint was no there was never a claim of nationality therefore we went along with the second stage so there are there is situations where columbia would have enough information where they would they would contact colombia in fact they admitted it in this case the government's position was always there was no master in charge yet they still just contacted columbia so there must be a differentiation between the two and one is not a subset of the other that can't be the that can't be the case if there was no person in charge there the government so if we if we actually believe that the government's position that there was no master charge they did contact mia but it's our position that of course there was for the government i mean that columbia was i mean there's only two possible scenarios some jurors either believed or didn't believe that there was a master in charge because that's the government's position and that was the exact opposite of ours and so there must have been some jurors that believed have believed that you know the columbia was entitle to every passport and every identification because of course that would have sort of jurisdiction and so we're stuck over here you know where you know and so there must have been some jurors that fell on either side of either argument that the government and their parents were were submitting to the jury at that time and so i think as to each separate issue there must have been a split as to both of them as to whatever side the government or the appellant was  ting and at every stage the appellant's stated that mr binnie i was in charge because of the show of authority and be the government treated him as starch and as to the second issue that the government or the colombian