overturn the first that step one johnson v ins has been called into question by supreme court precedent in one thousand nine hundred two johnson was decided without the benefit of the categorical approach it focused on a defendant conduct instead of statute such tory elements in two thousand and sixteen matters said that if some convictions would count and some convictions would not quote depending on the facts of the case and  statute cannot be a predicate to portability ground in two thousand and fifteen milou he explained that only a statute elements not quote some connection to drugs indirectly and quote will determine if a statute relates to a controlled substance there is no doubt that the travel many travel at convictions do not involve drugs this proves that there is no essential element requiring the existence and identification of a specific drug we do not ask this court to overturn johnson because in mathis and in maloof the supreme court already did we simply asked the court to recognize that reality under military gammy this three judge panel has the authority to do so second without having to reach johnson the travel act isn't a visible divisible statute exists when the jury must agree unanimously on the fact critical to the federal statute it is not uncommon for federal circuit courts to interpret the same federal statute as having different  statute this is actually this circuit juror instructions compared to other circuits juror instructions and whether or not they require unanimity or not require revised in two thousand and fifteen after months mr myers conviction they are intentionally different from other circuits and the government gives no case against this practice so there is no perfect case supporting it the government has the burden to prove the portability here agreements permit non citizens to enter safe harbor guilty pleas that do not expose the alien defendant to the risk of immigration sanctions the government got the benefit of mr meyers plea agreement in the fifth circuit it should be bound by that circuits determination that no immigration have a superseding information which is referenced in the plea agreement which mr meyers signed and that states a specific unlawful activity namely well first we do not reach the superseding information if the court agrees that the travel act is indefensible as mathis explained if a conviction like this one is broader than the generic offense it is not a match quote even if the defendant's actual conduct i e the facts of the crime fits within the generic offenses boundaries and quote here the mere mention of a drug in a charging document does not make it an element of the offense for example in harbin the second circuit held that the mention of cocaine on a charging document did not narrow the noncitizen conviction under a new york offense for sale of a controlled substance that is because the control a specific drug was not an element of the offense the court explained that a prosecutor may identify the murder victim by the time and place of the crime in the charging documents but those are still facts not elements here the conviction record could only identify whether mr myers was convicted under subsection a one a two or a three cannot do any more i confess i have enough difficulty keeping the ninth circuit case law straight so here i am struggling with another circuit that came in with the understanding that at least and this circuit our case law requires special vacation of the underlying act but that doesn't matter anymore because we got a conviction from the fifth circuit i did look at fifth circuit case law and this is one of those things where i'm mixing the cases up so i apologize but it seemed to me that there was a case called rodriguez from the fifth force of law that there would be a basis to hold the travel act is divisible under a fifth circuit law and now i'm citing the wrong case from my notes i apologize but can you tell me why the rodriguez case doesn't support that proposition your honor made and you may not be familiar with it either because i'm giving you the name wrong sorry yes i apologize i don't have a case in front of me but from the fifth circuit mallette a fifth circuit jury did not have to agree which one of multiple acts was a singular predicate unlawful activity for travel a conviction the court held that the indictment properly identified multiple unlawful activities the jurors only had to agree that the underlying activity was extortionate in nature activity is not in brackets in the fifth in the secretary instructions these instructions also differ from the california instructions at issue in court not zero in martinez lopez there california's jury instructions read quote bracket insert controlled substance and bracket and quote these brackets identify the specific controlled substance to be an essential element of the offense martinez lopez explained that blanks in the jury instructions require a jury to identify and unanimously agree a second circuit jury was instructed that the unlawful activity to a travel act conviction was extortion and commercial bribery the jury was not to required to agree whether one or the other or both unlawful activities were involved this shows again that unlawful activity was a means and not an element of the offense third the travel act is a record tearing offense unlawful activity is not an element of the minimum conduct culpable to violate the statute could be gambling or untaxed liquor as such the travel act is not an aggravated felony and it is not a c i m t if the court agrees that the travel act is not a controlled substance offense it also may reach and reverse the other to deport ability grounds mr meyers removal order mr myers presented both of these issues in his brief to the b a the v a elected not to reach them saying it was unnecessary to do so remained is not needed on the aggravated felony  this court rejected a government request to remain an aggravated felony issue because the b s a has no expertise and this court has do novo review over interpretations of criminal law on the c i empty remain and also is not needed because the government has not offered any memory mr meyers exhausted this claim in his brief at a r thirty six he argued that quote the minimum conduct culpable and quote under the travel act is overbroad to a generic c m t offense under this car jala this general claim of over bre time please the court sarah byrd on the half of the respondent the attorney general this court should deny the petition for review because the board correctly determined that mr meyers conviction under the travel act was a violation of a law relating to a controlled substance i think to start out some of the pollution ery things we actually agree on so we agree that he was convicted under the travel act and we agree that the travel act is divisible under subsection  subsections one through three so here is a three and we also agree generally as to the basic set of elements for the travel act that it requires first travel in interstate commerce second specific and tent to promote or carry on an unlawful activity and third an act in furtherance of that specific intent so this really hinges on whether that unlawful activity definition and subsection b is divisible as an element or is merely a means and that's obviously where we disagree as i mentioned that second element is specific intent to promote or carry on and unlawful activity in order to prove that specific intent the government must allege and prove the specific unlawful activity that was intended but suppose there are multiple alleged unlawful activities and if the fifth circuit would say as suggested by the form jury instructions that you don't have to the jury doesn't have to all agree on whether it was  a drug offense then can we say it's divisible of the jury doesn't actually have to agree on an element but simply has to agree that there was an unlawful act if the jury only had to agree that there was an unlawful act and didn't have to agree which one then it wouldn't be an element but i don't think that's the case here here well first of all to step back and we don't have a jury that agreed at and again with the categorical approach so so so the question seems to be that what is the fifth circuit require if it had come to if if a defendant is convicted without a jury filling in a blank as to what the unlawful act is and without instructions that specify what the unlawful act is can we know circuit does require the unlawful act to be specified and it is an element in the fifth service they specify unlawful act but they don't specify what specific conduct is an circuit circuit jury instructions say unlawful activity is defined by eighteen u s c one hundred fifty to be the appropriate one and then print the c's as should be specified and addressed as necessary in the instructions provided to the jury so really arguing over whether that print the cs s means that you can have multiple ones and that's simply not clear i think both in the fifth circuit and in every other circuit the unlawful act is an element that must be specified the fifth circuit merely allows for a plural multiple counts so you could have multiple counts and a different unlawful act for each count against awful act the controlled substance related well certainly there are convictions under the travel act where the unlawful act is bribery or a distortion whether it's the deportable then says it can because it is an element that must be specified and under mathis here mathis gives us a number of different tools to to distinguish between elements and means and one of those tools where as here we don't have a state case that says exactly post mathis these are elements not means we can look to the actual conviction records in the case mathis allows us to peek at those peak and i don't know what that means i know ted kaczynski used that language and i'm  side sure with that music is we're actually really not under the category calls approach supposed to go look at the underlying what we're certainly not supposed to look at the facts involved but i think what it's getting at is what are we i understand it's funny it's funny word people but we're peeking to see whether the charge was a disjunctive charge or whether it's specifically specified one of the activities that unlawful activities so here to look at drugs were involved were not well here would we don't need to look to find out which specific drug was involved but we do need to find out whether the unlawful activity that was charged and would have been proven and that he pled guilty to was the specific unlawful activity that relates to controlled substances as defined in the controlled substance act so we can look and we can see that to the exclusion of all other unlawful activities the only one that was charged here was relating to controlled substances it was specifically it was a business enterprise involving controlled substances and we have fifth circuit case law and saying that those unlawful activities there are a few that require a business enterprise the evidence in order to sustain the conviction the evidence has to be sufficient to show that it was a continuous action not just one possession but continuous into a prize of business involving the controlled substances and that's very different than some of the other unlawful activities like extortion which they don't the government the prosecution wouldn't have to show that business enterprise so depending on which unlawful activity is alleged the burden of proof on the prosecution is very different and the prosecution does specifically have to show a business enterprise involving controlled substance and the specific intent to further that business enterprise involving a controlled substance which would be very different than the specific intent required to further bribery or extortion the only time that i've seen two of them charged together was bribery an extortion because those are somewhat similar and that's in the second circuit case that is cited in the twenty eight day letter and i think actually that case tends to show that it is an element of course now we're getting into the second circuit where the jury instructions make clear that it's an element as compared to the fifth but even in that case it was a commercial bribery and extortion and the second circuit held that the evidence was not with a basically held commercial bribery doesn't fall within the generic definition of bribery which the supreme court has subsequently said it does for purposes of the trial but but at that time they held you can't sustain a travel at conviction for the commercial bribery unlawful activity but you can for the extortion and instead of saying and since it doesn't matter whether the jury agreed we'll just sustain the conviction they reversed and sent it back because the jury had to agree on specifically only extortion and they couldn't tell if it didn't matter and the jury didn't have to agree on which unlawful act was involved they would've had to send it back because extortion they specifically say the evidence was sufficient to sustain the conviction for the extortion unlawful activity and that kind of brings us back to the actual circuit split here i think that the fifth circuit what's different about the fifth circuit is not whether or not the unlawful activity is an element but whether  that element is defined by state law or by the generic federal definition so the fifth circuit decision that gets cited a lot is the the conway decision where  arson was the unlawful activity and the fifth circuit said that it was not reversible error that they failed to instruct the jury as to the maryland definition of arson because the jury was give had the generic definition of arson and arson is a little different than what we have here because it says the unlawful activity is is arson violation of the laws of the state in which committed or of the united states so the specific circuit split is whether the generic definition of the unlawful activity is enough or whether they have to give the specific elements in that state where it's convicted or where it's committed and that's where the fifth circuit differs and the d c circuit explain this really well in jones it goes into where that circuit split is and says in any case the unlawful activity at least the generic is an element and most circuits require the specific state definition so that that circuit split between whether it's the generic definition or the state definition is irrelevant here because the generic definition is a nuff here the generic actually there isn't even a state definition of controlled substances because it specifically cites actually a lot of states in california lists their rights but their list isn't the one that is incorporated into the federal and here we don't have that issue of a mix match because it's a federal controlled substance act unlawful activity for the just last night at the n t a and i'm looking for my notes here it looks to me like he was served in well the in t a doesn't have a service state it looks like he signed it in two thousand and fifteen and yet it looks like the d h has created the n t a in twenty thirteen but then took a while to serve it like a couple years and as you know is there a stamp on the service that's when he signed it so we know he was served at least in twenty fift think i think it's likely that it did and that's why we argue that what stops the time here is the commission of the offense that's not what the board said but that is what the immigration judge said and you're i think the board made a mistake here they got confused by those states on the n t a that we have to review with the board did well you have the board has the only the immigration judge can make the findings of fact that the immigration judge made the correct and fact here the board made a mistake as today reviewing the be a decision correct but in this case it's a harmless error because it doesn't even if you sent it back for the board assuming that you agree with us it seems like in lots of cases we can clear off the docket but so i think you know we're coming from or what our concern is and we know what position you've offered and right good enough for government work all right thank you pence and i'll and convicted solely under the travel act the possession statute describes the intended means of promoting an unlawful activity that is not one of them matt this tells us to start with the statute and then turn to case law and then jury instructions to figure out what is an element only at as a last resort to take a peek at the record to see if the elements are on the charging document my second point is that if the court agrees with us on all three issues this court can terminate proceedings without any rematch and realistically terminations moots the stop time issue if there are no for that but i think he's let's go back to the what we've really been talking about for most of the last fifteen or twenty minutes  what should we look at and we've we've heard from your colleague about this too but what we should we look at this satisfy ourselves as to what would be required in the fifth circuit if there were a trial we've heard from the government that in fact the differentiation or what makes fifth circuit different from others doesn't have to do with whether the unlawful act has dispersed be specified has to do with whether you look to the state elements or the i mean the  crime elements or to a more generic version and we're in a quandary here because we've got to figure out ok what would the fifth circuit do if it was presented with a case where there had been a  conviction for violation of the travel act based on instructions that have appeared to have been drawn from the form jury instructions that did not specify what the on lawful act was and there were more than one on lawful act issued with the fifth circuit say well that's an element and so all jurors have to agree upon what the crime was it's not good enough that a half do jurors decided he was guilty of a drug crime another half dozen or so so that's the question we're trying to resolve and what i'm asking you for is what would you point as to from the fifth circuit that would help us answer that question your hon you to let melet in let a fifth circuit jury did not have to agree on which one of the multiple acts was a singular predicate unlawful activity for travel that conviction the court held there that the indictment properly identified multiple unlawful activities but the jurors only had to agree the underlying activity was extortion the court held that there was no need to be quote a conviction of the underlying predicate unlawful activity but this is not a law well i need to go  mallette but i heard what you just said that the jury had to agree that it was extortion i mean was was or do you have multiple unlawful acts at issue there or is the problem the what the government appeared to suggest as to what the definition of extortion should be agree just that it was was what was i mean you just told me there were multiple unlawful acts was there something other than extortion or what they were talking about is multiple variations as to what the elements of extortion were in the government's argument and i may be digging deeper into the case and you know offhand and that's fine we all go back and look at the case but the government seems to be saying what what malema address is or what the fifth circuit is different about it i don't recall that but we asked her about a lot in particular that you can have a generic definition of a crime take it in six torsion and you can also have the particular requirements of one of the states so this circle is prevented so easy and so louisiana has an extortion statute that maybe is a little different and it could be that what the fifth circuit is saying ok this different definition is good enough and so you've got to agree on that our problem is is whether there's a different unlawful  act and so i have no idea what answer you can give to this question but but so my question really is there something in particular within that you would point as to that will help us answer you what the fifth circuit would do with the situation in nicholas specifically eight circuits were mentioned to construe a federal statute to be a general intent crime in the ninth circuit construed to be specific intent in footnote three nicklas cites to the ninth circuit case u s v twine which also recognizes the different federal circuits interpret the same federal statutes as having different elements in brecht a jury convicted a business manager who got a kickback the jury was told that both extortion and commercial bribery were predicate unlawful activities to a travel ac offense as my partner said the second circuit reversed because the new york commercial bribery law was overbroad to the travel x definition of bribery but they both the jurors were given both to decide on either one could have sat it o