court the central question of stuffs reconstruction in this case is about the meaning of the term foreign terrorist organization in eighteen us c twenty three thirty nine b and whether it includes people who act on behalf of the organization in significant ways but are otherwise outside of the control or structure of the organization the answer to the question is no i didn't even  confused by that question what suggests that you have to be controlled by the organization or be in the control of it basically says that anyone any who provide or attempts to provide material support so the person can be a total stranger and he provides support to a terror organization he violates the law that's absolutely true the person who provides support can be a total stranger the recipient has to be a leader of the organization a member of the organization or someone to the organization day in this case the evidence suggested that the money went to help the fighters in the mountains on the one side and went to the safe houses one of which was for military support on the other there and and and it seems to me if that's established as fact this notion of who's providing who the intermediaries are the fact is that's where the support went and that's what was found as fact so first the distro corresponding of liability didn't depend upon the facts in africa what the district court found was that simply sending money to these two recipients in africa that violated the statute and then the question as well to those of you left off the whole thing is what it went for as and i'm quoting i think from fifteen forty two of the joint appendix where the district court identifies the legal standard for identifying what constitutes the foreign terrorist organization so the three statutory arguments we make is first to look at the definition of foreign terrorist organization in twenty three thirty nine b what it says is that a foreign terrorist organization is the organization that's designated by the secretary of state and this is the leading case on and that is incorporate element the district court identifies that as an element and the leading case on the secretary of state's authority to designate a foreign terrorist organization is national council of resistance of iran versus department of state side on page twenty four of the blue brief it was written by then judge roberts and what he said is that it includes the power to designate an organization itself as well as agents of the organization and looks to ordinary principles of agency of law an agent is someone who acts on behalf of an organization and under their control and what the district court did is it truncated that test from agency long it took half and the reason that we cite that is because cases courts both in the criminal context and the civil cont district court kind of mystifying this element of the if that's what counts as a terrorist organization bro but even if that were so why would we have to reverse why couldn't you apply to her less error analysis i mean the supreme court has said you can do that when an element is mystifying for a jury or not you maybe even not sent to the jury in the first place we still do harmless error analysis so why are we right back where judge niemeyer was where maybe he defined it wrong but didn't really make any difference in this case because on the facts and by the district court and when he got there it's a good question and the answer is that the court can't affirm on a different legal theory so the case that your honor just mentioned is netter which is a case you take the findings of fact the court made down in trying and believing it had to to find mohammed and abdulla as part of the terrorist organization but it could have been a swiss banker i mean it doesn't matter if the support was provided with the knowledge that it was going to with the intent to provide help to the to the terrorist organization i think that's the violation he just found more than he needed to find judge me m r if the theory found by the district court was that these people were just conduits they couldn't have to the monies went to the safe house and went to the support of the soldiers in the mountains the question is how you define the recipient of the money and so if those recipients are not part of the organization then then the question as  facts that simply are not supported by the actual statute and so the three places that we point to in terms of the statutory construction are the scope of the secretary of state's authority and so courts and specifically courts in the civil context who find liability when a corporation or some entity engages in a violation twenty three thirty nine b they've the case that we cite is weiss versus westminster national bank on page twenty six of those delivery for the facts as you know i think you're not you're not taking into to violate the statute if you consider that those people are part of that all up no that conduit it says to the delivering funds for the benefit of through these people your honor if you start a trip with the wrong map you're going to end provided to support because the recipients were dollars that's all you need well you have to understand who the recipient is and so in this case the district court found that the recipients were al shabaab and found that the defendants were al shabaab because they supported  received the money and transmitted it for the benefit of al shabaab and these fundraisers did it knowingly the district court found that the recipients were part of al shabaab and that was how the crime was committed and so though if i can just briefly to differ because the fa found before it got to those facts was sufficient to commit the crime in other words it found additional facts which is whether these two were members of al shabaab but it found those facts based upon a legal standard that was a rumor so you can find that these people are part of al shabaab but if you're not applying the right test of what defines the the foreign terrorist organization you're going to come to the wrong answer so when the weiss case that i mentioned the defendants were sued in part for funding or for providing material support to charities of whom i that was the allegation there were certain charities that were under the control of of hamas and the dischord said that's fine you've alleged violation twenty three thirty nine b but other charities were not under the control of the mosque they just provided support to  hamas and they supported the goals of hamas and the discord said that's not an left to allege a violation of twenty three thirty nine b essentially providing support to a material supporter of al shabaab or mosques or foreign terrorist organization doesn't violate the statute in in two fronts nairobi and i mean on the on the two sides and providing money to people who could get it to al shabaab in these two locations and they received their i mean it was used for those purposes you have a violation you have material support to al shabaab that's a different theory of of liability and so what the just a court found is what actually happened the money doesn't matter i think it's fifteen forty five of the joint appendix but the just court said in the findings that you're referring to are to understand the district court's finding that the recipients were members of al shabaab and what the dischord said it's doesn't matter whether they're under the control of al shabaab all that matters they provided some benefit tell us about your arguing that the recept insist that the money didn't irrelevant to the violation the statute it your honor we did argue that below we'd like to go back again and argue about what happened to the money but the real question here for this court is can you establish liability simply because the recipients of the money are supporters of al isn't what was shown in other words you're supposing that muhammad could be just a supporter and you don't know what muhammad did with the money but we know what mohammad was actually only safe houses which provided military support the district court found liability regardless of what where the money went your honor and so we can dispute about what happened to the funds themselves or whether they actually went to what the district court found is that that didn't matter all that mattered is once our defendants sent money to those recipients that was the violation that is essentially how the statute was of violated and that holding that legal theory by the district court is not supported in the tack store of the secretary of state's definition or the structure of the statute if i can just describe briefly the twenty three thirty nine b is like a funnel essentially anything virtually anything can constitute material support but it is only as provided to a narrow  list of forty some foreign terrorist organizations twenty three thirty nine a is completely the opposite it doesn't it's like a funnel turned upside down the amount of the type of support that you provide is nearly defined it has to be used for  court's finding what did it matter whether it mattered to questions whether the district court found well the district court found that the recipient supported al shabaab and it listed the things judge newmar that you're pointing to to support it's finding that the recipients were supporters of al shabaab but our point is that providing funds to materialize supporters of al shabaab doesn't itself violate the statute and the theory that the district court used to find liability here is not reflected in the text of the statute or in the case law if you look at the court's opinion it doesn't cite any other case like this you don't recognize the problem i'm trying to identify and so you can just go ahead now and address what i'm trying to answer and i think the facts that you're pointing to judge him on are were used by the district court to establish that the benefit that the recipients provided to al shabaab but what it said is it doesn't matter whether they're actually members of al shabaab or whether they're under the control of the foreign organization as long as they provide support to the organization what we're saying is that you cannot find a material support case in the country where that is the basis for liability and if that is the theory that was applied by the district court you have to send it back now maybe because of the findings that you point to the district court would find liability under the actual terms of the statute which require that the money actually be provided to the organization itself but that's not for this court to decide and we cited done this in the briefs as an example that if the district court provides or uses an invalid legal theory it's not for this court to use a valid legal theory and determine under harmless error for example that the defendant would be found guilty is that illegal theory it the use of this that term is living expenses that the two defendants use particularly with respect to support on the hard gases side was not so limited in meaning rather it was more used more broadly to refer to general transfers of funds or support to al shabaab so that theory about providing medical support to al shabaab soldiers that was the government's theory of guilt before it was the defendant's theory of innocence and it was the government who would do  testimony about living expenses meaning medicine for al shabaab soldiers and that's why we've said the district court made that contrary finding but it should have taken that statement is true wasn't impeached it wasn't subject to any contrary evidence and it was the government's own witness who provided the shabaab then the then the recipient is when mohamed received but mohamed used that money to to fund the safe houses and the soldiers in the mountains and if it seems to me that whether she's actually a member or just a bookkeeper or the transfer of the money to the funds of the builder of the tents or whatever it is is irrelevant because in the end the funds went and supported al shabaab your honor was integral to it as finding it was central to the district court's opinion in this case and our point is that providing funds to someone who is not under the control of al shabaab that doesn't violate the statute in the same way for example that in campaign finance reform said they were on the control the district court said in its legal test that it did not matter whether the recipients were under the control of the foreign terrorist organization that is the central basis for its legal to us ok but it it just occurred to me to all of these findings i mean this is such an unusual e they were operationally integrated into the organization the group of fifteen was a fundraising arm of in light of all of the i mean if all of that were true would you still say it and putting to one side whether the district court made in error in sort of have political wings and so if you're part of that organization leader member agent under the control of the organization that has been this here's a find and let's assume in this find that is not a member of al shabaab this is what the court found abdulla was involved in receiving money for al shabaab in somalia for such purposes as providing transportation trucks and other support services to al shabaab now whether she is a member and that situation is irrelevant to whether there's a violation the fact is it went to al shabaab and supported the organization and the and it was a conduit theory and the court later said these people there were other conduits getting funds to al shabaab but in the end the money's got to be al shabaab where they were intended to shabaab and for their trucks and for their transportation and supportive services you're saying that doesn't violate the statute because he was not a member and the quick answer is it doesn't matter law he was not the ultimate recipient ile de la he was the perp and who took the money to the hour spent it for the organization if the district court found the defendants guilty based on a conduit theory as you just said use the word conduit even found based on the legal theory that these people were part of al shabaab now what you describe as being a material supporter and all we're saying is that providing support to a material supporter is not enough to violate the statute and that's what the district  the monies that these defendants gave to bomb it were spent on trucks the district court didn't need to reach that factual finding because it found it he didn't in his repinning and he says all i need to find is that the recipients themselves are part of al and once he did he didn't go any further and so that's the reason that we're asking for a lot of my statements not correct because the court did find that despite whether he made that find in that's later in his opinion his opinion about muhamm was it avoids the question of tracing monies and individual monies but as a general matter the monies raised by these two defendants went to mohamed two out of bob's purposes either directly with money or buying the trucks for option and that was what the court didn't say it says for such purposes as providing transportation trucks and support services that if i can just respond with the way the district court orders made its judgment it listed a set of factual findings including the ones that you described it then says the legal test on fifteen forty two is are these individual supporters of al shabaab regardless of whether they subject to control and then third the defendants are provide support to these individuals and because those people support al shabaab that's another you take one minute and describe what the error was in the court's findings with respect to law and on the district court people using the wrong test of what defines al shabaab it defined material supporters as part of the organization know it but it put out a test as to what their relationship to the organization was that's right what was error there and the error was it used half of the test for an agent it said someone who acts on behalf of the organization in significant ways is a member of the organization but the actual test that's applied in other cases el also the weiss case i mention is that in order to be essentially functionally part of the organization that someone who is on the outer limits has to not only act on behalf of but be under the control of the organization if someone provides material support to an individual who isn't under the control of the organization that is not the same thing as providing material support to a foreign terrorist organization i understand ok please the court jonathan l c r but have the united states agree with much of the discussion the first half of this argument we are following a five day pin trial that just short here issued a detailed opinion finding that for more than a year these defendants played prominent roles in a group of approximately fifteen individuals who met regularly and internet chat room to make monthly cash contributions for the operation of two safe houses an aerobic kenya and to provide transportation trucks and other themselves members of al shabaab or simply conduits we think that analysis was entirely correct and some sort of just so so you think that it is correct to define barring terrorist organization to include any person who is engaged in significant activity on behalf of the f b o relative to that act you know is goals and objectives we do and how do you square that with humanitarian law project that seems to limit the scope of the statute to materially provid concern i had that that definition is really clear to say this does not include people who are supporting but acting independently of the organization and i don't see that in the district courts so i think the first thing is an indication of that is a stint as a statement that whether quite clearly clearly the definition of personnel shows that it does not include people working entirely independent like this and it's possible you could cobble together like oh if you read it in context maybe it meant this but this is sort of a published opinion it's going to li live on and i am concerned that at least one could read it to include people who are operating independently of but on behalf of an organization so so i think that's not the best reading obviously the one that's going to control is this court's opinion going forward and if the court wants to make clear that's not correct i think that the district court said exactly that i think that's the best reading i also think if you look at the factors the seven factors which you don't think was supposed to be made says you don't need any of them they're not  so i don't think we can really use them to limit the definition so i think that you should look at those to see how the district was thinking through this question and i and i don't think there's any show showing that the just court was would have found someone to be a member of the organization just because when they were acting independently i but now i was going to say that i agree with the first part of this discussion here that all this doesn't really matter because it does it just doesn't matter whether mohamed or abdulahi were or any reason in the dish to defend its briefs in this court to think that the those individuals the al shabaab fighters in the mountains of of the gallus mountains or in the safe houses both the military and the medical were not members of al shabaab under any test that you might adopt and because of that it does doesn't matter in this case whether the bahamas or not to law he were conduits or or full fledged members of the organization itself so what you're saying is that all that is necessary then is that there be an intent on the part of the defendants to give them the tiriel support that in fact the support they gave in this case money did in fact reach the terrorist organization so i want to be clear the two different crimes at issue here right  those you've got to either show that the material support was made it to the organisation or intent plus making it to the organisation you're saying is and whether it's also an attempt crime so you can also even if it doesn't make it i'm talking about the substantive for the substantive crime i think you have to have a no it's nine ten it's knowledge but you have to knowingly provide material support to there were his ation and whether that material support is going from you directly to a member of the organization or directly to the bank account or through someone else to the organization it doesn't matter i think if you look at this court's decision and how mood in that case it's very clear that the defendant gave the money to his friend who there was no allegation in all that that person was a member of there is a law finding that analysis the court then went on to say so that the course is the defender has two arguments his defense or a two step argument here number one defendants are you that you have an ability we're not part of the organization and then number two the only money that went to them because they're not part of them went on to true even on even if i had to reach the medicine question that don't they don't qualify under that exception either both because the material support here the money went to someone far more than medicine and were not not not not here just talking about whether it was drugs or services it was also a safe house it was providing cover from the thirty's it was also the non medical safe house providing military staging and it was also the the transportation trucks and services in the mountains and the gallus mountains and so i think th did both those things connected the dots even if that i don't think that was required but the discord did that here and found the findings fully support a finding  what's your response to the alleged error that in finding that somebody is an agent of an organization you have to demonstrate control of the organization so i don't think there's that there's a basis for that kind of holding when you can just demon into t that is not themselves have they have not themselves been designated as a terrorist organization by the secretary of state to nevertheless be the same thing to be an alias you didn't have to then go on to find you know the  individual make up that organization i think the better place to look would be the court's decision and the court's decision in kilian which went through a similar set of factors about who is and who is not a member of the communist party i think there are other decisions in position is that the reason the district court's definition part of the equivalent of a foreign terrorist organization is not incorrect i thought was that because it's properly read to require at least some coordination or to exclude people who are operating independently absolutely but but i think there's a difference between operating independently and operating under the direction of control i think the best place to look for that is the definition of personnel which list separately operating at the direction of control of their inspection or managing supervising of overseeing the operation i think that's that's what the district court look to hear to craft its test and noting the very clear exception that it's not independent  that's right there was mohamed i mean that would be enough right yes yes certainly i'm can i as you just just if i don't want to put words in your colleague's mouth but i understand the defendants to be saying look sure there's a lot of facts out there on which maybe the district court could have found liability but if it's their liability on this other theory that was incorrect and therefore this has to go back to the district court and there's no such thing basically as us just saying well we can see all these other reasons why she could have been held liable what's what's wrong with that so i think he that there aren't that argument rests on a case on the group and yet it's a lot of cases where we're talking about general jury verdicts where you just don't know what the what the jury found and so it makes perfect sense in that case to say well you've got a legally sufficient and legally insufficient theory we can't just say it's enough for the legal action but this is that's not this case number one i don't think it's true the district court didn't go on to find side under that theory let's assume they're ordinary talk and then and then number two we know exactly what the just report thought and made very clear and detail factual findings none of those factual findings constitute to that effect that should be that the search dispositive that question of course there's a factual finding to the contrary as to its name are you pointed out and no one shown clear air there and it's just not true there's not other evidence in the record to support that finding that living expenses referred to more bob i mean they coordinated with them provided funds they were not operating independently they were not connected to any other ideology to fund soliciting receivers sniffly for a and no one else and she operation a whether that's with choir or not that's the legal issues raised right and that i think that court stepped up to the congress definition of personnel that makes very clear it goes beyond control is the size of that question i don't think the case is concerning what other entities within our themselves are i can just make for brief points first if the district court is going to find al shabaab under every rock it's going to find that there is coordination and so specifically in its box will findings with respect to paragraph nine that  you quoted from it is talking about the role of the recipients and it says these people played important roles in providing support for al shabaab it is not with respect to the money that was actually provided by the defendants  four thousand seven hundred dollars and so what it says is these facts show that the recipients were supporters of al shabaab and therefore because those facts show that they are supporters in significant ways they are essentially recipients themselves were supporters of al shabaab and so the question is is that enough to violate the statute we've we've discussed that at length these facts go to the role of the recipients and not what actually happened with the money when the court said that there was coordination between the defendants or that they had interaction with al shabaab leaders if that was true with respect to the direction of where money went we wouldn't even be here but there is nothing in the record to show that the actual money that went to these recipients was at the direction of actual al shabaab leaders that's why the district court went down this road because there was very little evidence in africa about what actually happened there was very good evidence and we conceded that the defendants provided money to these two r goals and those monies are then taken and given to the known leader of that organization and say here this is for trucks and ammunition is that a violation statute absolutely that is simply a conduit a pass through it's directly providing money to al shabaab and that's not what we have here that's what that those findings on forty two and forty three say explicitly that the funds were used explicitly for taking explicitly given to the leaders needed with them obtained funds for use of a ass and solicited those funds for that purpose alone and and they said it was used for these purposes and then the court explained exactly what was  i'd be clear about one thing if a defendant provides money to al shabaab for the purpose of providing medical care or for buying an x ray machine it does not matter that is providing support to al shabaab that it has control over the difference here is that the defendants are saying the recipients were not actually al shabaab and so the rationale from humanitarian law project about fungibility and it doesn't matter what kind of assistance you provide that matters when you're not providing funds to al shabaab itself but simply didn't vigils who are material supporter material support but providing support simply to material supporters doesn't violate the statute what about if you know the material supporters are going to provide the support to the organization and in fact do so if the support is sent if they're simply meant to be statute if you aren't providing money to independent providers of support so for a court found they were not independent for can i give one example if let's say that an individual knows doctors without borders provides medical care a service in  vigil provide support to doctors without borders that doesn't violate the statute doctors without borders isn't under the control of the foreign terrorist organization the district court recognized that and excluded not explicitly doctors without borders and red cross well but it did based on essentially a legal test that it came off it came up with out of thin air line these are facts well we can talk about the factual findings but again you've got to start with what the legal test is and that the reason that we've asked for re man is because the