case this case involves thirty four thousand and eighty two specifically possession of narcotic drugs for sale and the ninety five listed items under the definition of narcotic drugs under thirty four a one section twenty it is my position that these two statutes are not divisible and why do i say that because there are two arizona state cases on point specifying that a jury can disagree on what the item was however still convict for example in prescot two thousand and sixteen i knowledge on published case the defendant believed he was in possession of one of the listed items and the state believed he was in possession of a separate item and the court held it didn't matter since they were both under the same heading that case did involve three thousand four hundred and seven dangerous drugs however the same analogy was presented in caster reno a two thousand and ten arizona case specifically court and so it does not have the same weight however it does provide some guidance and the arizona jury instruction here does not have as what was previously referenced in the drug paraphernalia statute a blank line to doubt in this case what substance was involved and nd is there any logic to the result that you wind up advocating for given that there's really not much doubt about what substance was involved why is it there is no dispute that the drug in this case involves cocaine to the nd matter i believe it matters because there is a realistic probability that in arizona someone could be convicted of one of those two chemical words that i know will mispronounce and so if the court was to find that if there's no dispute it doesn't matter to make that binding you had to go behind the conviction to find a specific item and i believe u with the proposition that that we are bound by the supreme court's case law but i'm searching for some explanation for why we go through this exercise over and over again as you've indicated our courts faced this question like three or four times already and those cases have been resolved through unpublished dispositions so we're back to again and we do this for each of the fifty states and the seven districts or territories and each of the variations in the criminal code and after having lived with this problem for eighteen years banging my head against the wall trying to figure out why and so now i'm actually posing that question and i'm interested in your answer but i have to say it seems like a pretty futile exercise we've been launched off on and  if you have something else you want to add you can have the weisel wind up putting to your colleagues across the aisle what can the justice department to to get us out of this morass because even if we would rule in favor of the matter who or how we will in this case we get this case over and over and over again iraq on nuts because so anyway if you have anything you want to offer up i'm happy to hear it otherwise i feel like i'm a hamster running in the cage over and over and over again while you're i have no guidance on current law however we cannot predict the future and mary maybe the arizona supreme court will answer this question definitively similar to california so then if the court once again had to address thirty four a week there would be a published arizona supreme court specifying it is the identity of the driving element or is it not counsel come off the wall question do you know much time your client actually served for the conviction  when your honor is made please the court my name is david shore and i represent the attorney general of the united states the immigration judge in the board immigration appeals in this matter found that mr hernandez his conviction for possession of cocaine for sale qualifies as a conviction relating to a federally controlled substance there by subjecting him to removal because the arizona schedule of narcotic drugs is divisible based on the identity of the  obtain a conviction a state must proffer evidence of a narcotic drug that is a specific substance this statutory scheme is just like california is which this court looked at in martin martinez lopez and found narcotic drugs or even dangerous drugs as separate crimes the case law shows that the state team each charges multiple possession crimes for the same conduct when multiple drugs are involved and that means that each possession is a distinct crime if the identity of the drug is not an element and simply a means of committing one single crime the state would run afoul of double jeopardy  if it charges convicts and sentences a defendant for the simultaneous position of multiple drugs i know in your brief distinguisher you try to distinguish arizona court of appeals case a d i mean i'm reading what the court said there neither our statutes nor the case law require the state to prove the defendant knew which particular drug defined under our laws  a dangerous drug he knew he possess and you argued in your brief that because that case only goes to the defendant's knowledge requirement that it's not a  divisibility analysis yes i'm not sure i understand that argument so ok i want to what you're trying to explain to me why it's not relevant to our analysis under arizona law it doesn't matter whether the defendant knew he possessed heroin or cocaine or the unpronounceable other drug the judge clifton mentioned and yet can still be convicted sharper so what we're talking about ronnie up what the court was addressing was only the knowledge requirement that is the state had proven beyond a reasonable doubt in both of those cases what the specific substances were those cases really stand for the proposition that it's not a defense to say i thought i had a different drug than the one i actually had that's that's really all the cases and for to the extent the court used imprecise language in describing that holding it's dicta in prescott where the substance was methamphetamine and the defense was oh i thought it was d m a you can't convict me there was not unanimous jury verdict the court in that case said quote no reasonable jury could conclude the subjective pence's did not involve methamphetamine so the identity of the narcotic methamphetamine was proven beyond a reasonable doubt likewise in castro nia there was no dispute what the substance was it had been proven was in the pill bottle the fence was i didn't know precisely what the substances work so again we're only talking about the knowledge requirements and so these convictions do relate to federally controlled substances because in both instances the substance was proven beyond a reasonable doubt you have to prove that it was a narcotic drug a drug on the arizona list and i don't know how you could do that without proving what it was but that doesn't necessarily mean that which of the many items on the list mattered it could have been cocaine it could have been heroin there's a potential argue with regard to methamphetamine touched upon in the last argument so maybe it's a little different but i'm not sure at least for the paraphernalia case but i'm not sure that that we can say that when prescott says it doesn't matter if it was known which drugs as long as this estab narcotic drug i don't know what mirrors on a law supports the proposition that it really does matter under arizona law that it was cocaine instead of heroin at the end result was the same for both in response to want to church clifton's questions that perhaps at some point the meaning and maybe paraphrasing her a little bit inaccurately that at some point the exact meaning of this statute could be confirmed by the arizona supreme court is there a mechanism in this case where we could ask well this court certainly has the authority to certify the question to the arizona state supreme court i am not able to state at this point the government's position on that that would have to be cleared by the solicitor general's office but the court certainly does have that authority lopez which relied heavily on that fact that in california you get multiple convictions for the same conduct when there's multiple drugs but nd it is soon as routine constitutional violations by the arizona courts arizona court correct fundamental error that is the public courts whether or not that ever was raised in violation of double jeopardy is a fundamental error and so each of the published arizona cases cited in response brief so in addition we've got the jury instructions themselves which say a narcotic drug but under the case law once the state proves the identity of the substance it is not required to show that a substance is also a narcotic so therefore the state must necessarily proffer evidence of a specific narcotic drug and then the peek under martinez lopez at the conviction documents just for the it's significant that the charging document refers to one and only one substance if the act of possessing multiple narcotic drugs is a single crime then separately charging eat would be multiplicity this and on the flip side listing a separate charge for each drug is consistent with the identity being an element otherwise the charges would be duplicitous peak established the visibility and so given that the identity of the drug is an element the immigration judge on board correctly looked at the conviction documents just to assess what crime is the basis of the conviction efforts being made by the department to get all of us out of this nightmare you must suffer it more than we do given the number of jurisdictions and the number of different statutes seems to me there are so lucian's available through legislation and i know the department proposes legislation there are resolutions possible by suggesting to certain states i mean look at the arizona list it's pretty clear that those two extra substances that put us all into the situation don't really have much practical effect and they're probably the result of the temporary listing on the federalist some years ago is there anything you can either tell us about what the department has what positions the department is taken or efforts the parchman is making publicly or hear from us that maybe when you go back to washington this is just another cry in the dark that there ought to be a way out of this nightmare for all of us so the nd thing you can't do much about the st thing is there anything being done to try to clarify the problem with i would say that's certainly abo may not even exist and i heard that argument before and so far we're not going down that road but it strikes me as the arizona problem might be cleaned up with communications between the department and the appropriate authorities in arizona the legislature can do what it wants to here and so far they understand that but on on both directions either i'm working with states to see if there is consistency that's possible or in working with congress such things as acknowledging state convictions as being felonies so for that there there ought to be practical solutions to this problem which is plagued us for a long time so to the extent that you can get back and call up to the people who are in the higher offices and the higher pay grades i do prefer to try absolute say it's got to be even worse for you given the number of cases and the nature of the cases you're dealing with that convictions under thirty four or eight for multiple narcotic drugs is a violation of double jeopardy or that it isn't even allowed none of those cases support that and as an arizona attorney i find it disconcerting that arizona year plan span would fail to see that there could be a double jeopardy issue unless it is not a double jeopardy issue because it is the act that they are looking at not the identity of the drug and government counsel has not cited any case to support that position they are asking the court to assume that it must be that way because no double convictions have been overturned due to double