good morning your honor is my name is bruce erickson i represent the appellant chancing jane i would like to reserve three minutes for rebuttal in this case the district court had the opportunity observe the defendant through numers pretrial hearings all day long every day for over four weeks during the jury trial received a pre sentence report and just a moment before the sentencing the defendant stated that we know that the defendant is approximately seventeen or eighteen years of age at the time of the offen if the congress has the maximum sentence that congress has authorized if the defendant was seventeen at the time the offense is five years supreme court in the mcnutt versus general motors case confirmed the existing rule which is that when there is an appropriate challenge regarding the issue of jurisdiction it's the party that is a that has the burden of proving the facts of jurisdiction and that's that's the rule in civil cases and it's the rule in criminal cases defendant path is in a position to state something on that of course this particular defendant came from people the public of china he could tell what he understood to be his true age and the judge received that testimony  in many different proceedings for a singer and that's correct your honor and you know that is not at all unusual for people who are in this country illegally in fact it's more common than not that there are numerous ages that get into their a file which is what happened here sometimes coming from the a person who is in the country illegally sometimes from confusion and that's there's nothing unusual about that should be done but ultimately if the government is seeking to punish a person beyond the five years was the maximum authorized by congress if the person is seventeen and has not yet the team their eighteenth birthday then the government must prove to that the that the individual has in fact that he and his eighteenth birthday i don't think it's necessary that the  well it was it was the the decision in the original criminal appeal was had a real infirmity it was wrong then and it's wrong today there was a single  in that decision there were very serious issues that were properly preserved and properly presented thoroughly briefed at the time of the criminal appeal and there was a single case cited which is this us vers in the materials and it states that a motion to recall the mandate must be grounded in a quote real infirmity in our previous decision either when it was entered or when it is viewed in the light of later supreme court decisions until here i submit your honor in this instance in fact the the decision from the ninth circuit on the criminal appeal had a real infirmity at the time that it was  that infirmity is even more apparent as a result of the subsequent decisions of the united states from court namely the pretty case and the booker cases which as as your as you are well knows state that any fact say that the issues that were presented in the original people were serious issues and they were ripe for a decision at that time and they remain right for a decision today and they could include many things including who is to make this decision is the judge or the jury that is to make this decision on this issue of genuine issue of material fact what is the standard to be employed is it going to be a person preponderance of the evidence clear and convincing or beyond a reasonable doubt and those are important issues they were present at the time but in fact to dispose of this case it's not necessary to do all of that because in this particular case it's a unique case and that's why it is properly a case where we call it the mandate should occur it's one of a kind that is good for two reasons i submit one in my thirty eight years of practicing criminal defense i've never seen anything like it  the maximum sentence is five years and the say hah prado case reaffirms there's nothing new that that the prerequisites in the federal juvenile see act are jurisdictional and they must be fulfilled i submit as a practical matter in a case like this if it is to come up from time to time that the court should initially try to decide  approved pretrial hearing you know is this individual a juvenile or an adult and do the best they can with the situation at that time and then they proceed just to create did that occur and yes yes exactly i agree with you your honor  decision on this factual issue that is where the law is at this time and that's another reason why we call of manatees appropriate here is because this case priests in anticipated these decisions that were going to be coming from labor that come up with any evidence concerning your clients and what we did with the universe to washington to try to get a medical doctor to do a physical exam to to assist the court in that regard we requested  mission to take depositions of the defendant's family members in the people's republic of china or in the alternative to offer telephone testimony from the people with that kind of knowledge in china those requests for the individuals who were present at the time this individual was born but in any of it that was denied we went all the way through and at the end of the day we had the judge standing there and making this passive young person in his courtroom for weeks and weeks day after day and the judge's statement stands clear isabel he had his his one and only a statement regarding the resolution factual issue is that we know the defendant was approximately seventeen or eighteen i think time this is jurisdiction is a basic as it gets and and this matter was and center from the beginning to the end of this process and then it was fully developed and presented and i don't i can't offer the explanation but the reality is i submit that the original claim that the defense through a precluded from federal jurisdiction and lo and behold this this court that the in the later decision of us versus a whole crowd of explicitly states that very thing which is that one have i'm sorry your honor again would have brought that fact up early on i was that counsel and i did i brought this fact up from the beginning all the way through before the district court as part of the motion to dismiss the indictment the district court considered both his testimony and evidence presented by both the defendant and the government and the evidence included  least eighteen years old because those declarations were filed in april of ninety nine he told officers in california when arrested in december of ninety ninety four that his birth date was january ten nineteen seventy seven which again and would have made him over the age of eighteen and when he was arrested in connection with this offense he provided no less than three different birthday to seventy seven so it is with that record and with that the district court concluded that he could be properly to tried as an adult and that the indictment should not be dismissed and i would call repeat well i think perhaps the court didn't want to try and guess which one of the various states or ascribe a date but it's clear that the court felt that it actually is stiction to proceed and in fact i would also call his guilty plea and then only at the time of filing the breeze on appeal for the first time raised the question of whether or not he was truly a minor and submitted as a mother as part of a motion to remain and to the cases involving questions in the child pornography area i know that they look to the types of physical development i don't think that's had an absolute exact science as to when what someone's birthday absent someone being present at the time of the birth and recording that that's that's a good analogy you know to recall the mandate with respect to the certified issue i think that's also fully briefed and then must court has any questions for me i would ask that  court affirmed the order of the district court fact the closest the judge came to it was explicitly finding that he was approximately seventeen or eighteen it's it's basic black and white the congress that maximum sentence authorized was five years if he was in fact seventeen it's nothing more than an assumption that he was older than seventeen it wasn't necessary for the court to conclude precisely what day he was born the court simply had to make a finding of fact that he had attained his eighteenth birthday however many days he was beyond his eighteenth birthday was of no consequence the issue is i'm repeating myself this is an issue that just difficult to decide these questions but they have to be decided and we've got the recent decision of the united states supreme court saying you can't kill someone if they've committed the offense prior to their eighteenth birthday so this matter is going to come up again in a different context here's this young person who is a very pale passive should be sent back to his homeland in china thank you and i feel