as was required by the statute and fail to prove that there was a mens rea of knowingly that is read into the statute additionally she was convicted based on a statute that was unconstitutionally vague as applied to the facts from case so for all of those reasons this conviction should not be permitted stand taking these in turn and without belaboring the points that are already in my brief that i know the court's familiar with with respect to notice requirement i just want to highlight the government's brief the government on this appeal has taken a position that is entirely diametrically opposed to the position that i conceded below before the trial court in response to defendants rule twenty nine dollars motion the government admitted that there were two ways to prove notice which it recognized that it had to prove one way it was conspicuous posting the other way was actual notice the government has conceded even in this brief and put note in of its brief that there was no actual notice here in other words dr was solution was not told that she was committing a crime or would be arrested if she ceased raising her voice or speaking loudly as it's alleged that she did and the government now contends for the st time on this appeal that the posted conspicuous notice is also not required so that argument really should be deemed forfeited but more than that the argument is substantively wrong the government's whole argument on this point i founded on a case united states versus strong that when we look at actually contradicts the government's holding in strong the court specifically noted it dealt with the question of whether a statute was conspicuously posted and specifically noted that there is a distinction between the conspicuous posting that is required by the enabling statute under united states code one thousand three hundred and fifteen dollars and a separate regulatory provision in a separate regulation  that requires that posting be specifically at the front doors of every building we are not alleging in dr was alicia never alleged that the defect here was a failure to post the notice at the front door of the entrance that's not what she's claiming so it has nothing to do with this regulation instead what she is claiming is far more fundamental that substantively the notice was not conspicuous and on that front are you still reading into the regulation that she was convicted of violating an element that's not in that regulation well but your honor the problem is that the authority for the regulation to criminalize the conduct the that the th circuit the th circuit the th circuit the th circuit all of these circuits have held that that statute does in fact have this requirement in it and one of the fundamentally weird things found actual notice they don't really have to construe the statute quite so closely but i there's a sound argument to be made that the posting provision in the efficacy of the posting whether it's adequately conspicuous is independent that it's really intended as it's framed in the statute to constrain what kind of regulations so there aren't secret regulations that no one would have any notion about so the g s a requires you know that is required to post and but it can't have regulations and they can be enforced it would seem odd to say that in common sense kind of you can't as happened in strong make a mess of the rest room and and create a nuisance for every other user of the of the building would need to be posted and written you know in great detail outside the building right at the entrance in order to be enforced to limit right completely agree with your own so if they're independent then i don't really understand your argument that the statute requires the publication be adequately conspicuous in order for there to be any consequences of violating those rules so your honor i'm it has always been recognized by all of these circuit courts that what is required fundamentally is notice and that notice can be can occur in two different ways as the government actually conce security officer yes your honor and with divorced from the fact i'm saying that that's true and then you know i'll get into the factual portion and the vagueness portion as well but yes your honor i am saying that an i'm not alone in saying that certainly the court said that in oaf the court said that in best show ambition actually if your honour's analysis were the analysis that was used in united states versus vishal then there would have been no need to go into the conspicuous post in question in the st place it would have been super bush gentleman who had changed himself to the country ways of the court house and it's i mean it's nice that there are warnings and so on but you know one can question whether the statute requires that in order to prosecute me for me part of my concern is why was this a misdemeanor why was this prosecuted and couldn't have been a violation of somewhat lower level because a misdemeanor is a criminal record it's a serious matter well you are i mean just just going back to the legal portion of it though there really is no precedent though for this position which is this novel position that the government has taken and before i address that a little bit more in detail substantively just procedurally it's a very unfair position for the government to have for the st time on appeal articulated this position this argument that is contrary to what the government argued below because i quote you from what the government actually stated in the rule twenty nine motion which was we agreed that there is this requirement of of notice and that requirement can be satisfied in two ways it can either be satisfied by conspicuous posting which the government relied on or by actual notice having conceded that that was the decision of the district court below that was the basis for its verdict it held that there was conspicuous posting that was the basis for the district court decision afterwards which similarly found the same so the the only issue that had ever been presented was the question of is the posting behind the glass and this is actually evident in the appendix on page one  this is the picture it's the that their own c s o their own security officer officer specifically testified that from seven and a half feet away it was impossible for a person coming into that building who had no access to behind the security counter where this was posted behind glass to read the substantive text and so now substantively your honor to your question in united states versus strong actually the st circuit and this is the sole case that the government relies on that doesn't hold what the government says the sole case pacifically talks about the fact it says contrary to the dissents claim our conclusion that the posting was conspicuous for someone in strong position is not at odds with mishal or struck off and then it says that the posting requires it doesn't require posting outside the building entrance which is a formality that is found in a separate regulation but it does require conspicuous posting and that's why the whole strong decision is broken down really into two sections section eight of that decision talks about the questions specifically it's in title specifically the statutes conspicuous posting requirement was met so even from the title of the analysis of the section in strong which is the sole case on which the government report relies the st circuit finds that there is a conspicuous actually the problem with the mens rea is the mens rea a has to be read into the statute and so in order to constitute a a guilty mind amends raya what the nd circuit with this court has held in united states versus bronx reptiles is that to suffice for criminal culpability knowledge must be quote extensive enough to attribute to the nowhere a guilty mind or knowledge that he or she is performing a wrongful act in contrast to cases like strong where a person smeared feces over the building inside a government bathroom in contrast to cases like i'm not going to be able to pronounce this one jaska which is cited in the government's brief where the defendant in that case actually threatened to kill the security guard and threw something at the security guard physically where for mens rea as your honor was saying we can certainly  is that she was sorry to the government is that she raised her voice to the same or lower level than the decibel level of the security guards with whom she was arguing and so when we look no your honor and that is actually apparent from the video so even though it is true that we give deference to the findings of fact below this court certainly is free to look at the video and the security officer actually testified at trial that he believed not touching him so not did not go make a finding of fact that there was an actual touch but the magistrate judge also found that she was told to calm down she kept shouting she testified that she wasn't shouting and  discredited the testimony and believe the officers correct around it so again because it's allowed her unusual noise with respect to mens rea out for her to know that her conduct was wrongful there would need to be some sort of knowledge as to what loud is too loud in other words what loud is criminal loud enough to be heard is clearly not loud that the c s is the shelves and if it's a general intent crime we say does the person know that they're doing thing that is prohibited so the general way i would say if this were a criminal law class did she know she was shouting right and i do think she didn't know she was shouting yes your honor i am and i'm saying she didn't know she was shouting because the level the decibel level so again what we're what we're criminalizing in this vague statute which is actually the other point of all this but what we're criminalizing is the louder unusual noise she did not raise her noise beyond the level of the c s and testified that she only resists that level to meet their level agree as to whether when she put her bag down it made a loud or unusual noise one said it did once that it didn't so the problem with this is and it's not just the bag and as far as the stepping forward the video shows actually it shows that this is so came out from behind his desk he towered over my client he came out from behind his desk was literally advancing on her pointing in her face inches from her nose and as she was stepping back she was literally being backed into a corner backed into the doorway and the time when it said that she bumped him she just literally stood forward to stand her ground there is no context in which that should be deemed a nuisance or that should be deemed improper especially when these see as sos were denying her access to a public building to a public space where she was entitled to go and she had never refused to comply with their applied because it allowed for the arbitrary and discriminatory application of these terms she was convicted for making a loud or unusual noise which are vague terms that were not subject to any definition if the c cannot agree whether the noises were loud or whether the noises were not loud if her volume did not exceed the volume of the officers that she was speaking to if she did not step closer to the c s so that he had initially stepped to her then the problem is that the question of whether it is vegas applied would depend on the golan founders as a person how close i could get to you maybe but let's say i don't and that's ok i understand your honor's question i guess the difficulty i'm having with it c tually is that when you get close to me i get close to you so the problem i have with it is the c s so was already bearing down on her he was already within inches of her face he was pointing within inches of her face and so when she was being backed into a corner and ultimately stepped up that was not any closer than he had already been so we have to evaluate it can textually and then the other the last part of this biggest part of syria was my time on target anything if anything he advanced upon her and then she just stepped forward to stand her ground so she didn't get any closer than he had already been at a prior point she stopped backing up is basically what happened which she honestly should have the right to do in this context but beyond that and the last point that i'm going to make on vagueness is that the reason that we know that this statute was arbitrarily and discriminatorily applied and the reason that we know also that she didn't have the mens ranch didn't have the knowledge is that at the end of all of this when the c s o finally after she steps forward he grabs her he puts her hands behind her back and slams for against a counter she says why am i being arrested which shows that she had no knowledge not only had she not see the regulation not only was it not it's because lee posted not only was she not told she didn't know she had done anything wrong she didn't know what she had done and even more telling them that the answer to that question by the c s o was not because you were making a loud and unusual noise or disturbance in violation of the ordinance the answer is because you were being a bitch that was the answer he gave her and that shows that this is really a post hoc justification for an arbitrary discriminatory in foresman in fact of the statute in this case and notably the nd c s o upon clarifying that said that she had committed disorderly conduct which is also not what she was being charged with here are you going to res and your honors may please the court michael perry of the united states i was trying to counsel with the bench counsel on this matter of the st point i want to make i would have made in a certain apply if i had been able to file one is on this waiver point the supreme court has clearly have held the following this elements of a charge crime in crackly it adds one more element and you sufficiency challenge should be assessed against the elements of the charge crime not against the iranians lee heightened jury instruction and this court in the evidence to support a conviction is measured against the actual elements of the offense and not against an expanded list of elements contained in an iranian jury instruction unquote so here we i don't have a jury instruction but essentially we have the same situation where the magistrate judge believed there was an extra element to this offense government did not object the fence did not object and now we're on appeal and this court you know compliance with musashi o and fox and should not incorporate this heightened element it's not actually an element and also on the fairness point that defense counsel raised addresses that by saying that a sufficiency review in essence focuses on the minimum due process requirements that somebody is due and so if there's an extra burden that the government has to show to prove a crime beyond a reasonable doubt that hasn't harmed the defendant basically the government proved something that they didn't have to prove and in this case i don't think there's any conceivable way in which the government proving notice at trial somehow harmed the defendant it made it harder for the government to get a conviction and we did anyway separate apart from that which shows that argument was not waived your honour's is the magistrate judge having heard all of the testimony and seen the exhibits in the video held found it's a factual finding that the notice was conspicuously posted i'm having trouble understanding how that could possibly be given that was in a glass case you know behind in small print and so on and we have these other cases in which court officers or the g s a put out sandwich boards with you know  large print notices outside the courthouse would you believe these were let you pull from where she stood the testimony was that the title of the document which says rules and regulations governing conduct on federal property was legible it's big enough a conspicuous place not that every word in the document must be conspicuous i don't think that the statute should lend itself to an font you know decision on on whether you know somebody with a certain type of vision can see you know every criminal is something else well but it's not our position to decide whether it's criminal the judge found that the elements were satisfied and so you know if you're saying that the government could have exercise discretion not to charge it that's not before this court that would be inappropriate e for the circuits and i'm publishing case it addresses pretty clearly the history of this statute and explains that the predecessor statute which is forty u s c three hundred and eighteen a lower case  did condition criminal liability on satisfaction of the post a requirement there were two additional words in that statute provided that which are sandwiched in between the granting of the order to make these regulations and the posting requirement that statute was changed in two thousand and two and words were removed so clearly congress knew how to make this an element of the offensive they wanted to the straight off case that the fence counsel relies on so heavily that the statute required that as an element even though it actually did not and then your honor the videos your honour's the video was brought up i encourage you to watch the video if you have  not it is clear that if the officer was not actually contacted by the defendant clearly at a minimum their clothes were touching i mean there's no daylight between them she steps forward aggressively and his participation here and the explanation that he gave about why she was being arrested which suggests to me that this wasn't simply for raising her voice since its place was at the same level well it wasn't simply for raising the voice because she also slammed down the person she invaded she got right into his face clearly wrong as if you've seen the video he does advance toward or he's putting his finger out and they're arguing you can't hear what's being said you don't have a sense of the volume because there's no volume on the video but you can tell there they're arguing back and forth and then she's reprimanded but he doesn't develop a criminal record as a result of his behavior but your own as all of this was before the magistrate judge this is a this goes to their credibility the magistrate judge understood that he had been reprimanded of course it's disturbing that a law enforcement officer would say that to a citizen that's not in any sense the government's not defending that he was rightly reprimanded for doing so but again the by the time he made that comment the crime had been committed the statute had been satisfied and and just because she is after committing a crime is called a derogatory term that's inappropriate in any somehow has not been satisfied and i think there's no basis to make this into a specific intent offense where she had to know the wrongfulness of her conduct clearly she knew about you know what she was doing she knew she slammed her purse down she knew she stepped forward into the officer's face and you know was probably centimeters away from his nose and she knew she was shouting defense counsel keeps referencing her testimony that she matched  officers that wasn't necessarily their testimony in the light most favorable to the government which this court must examine the evidence under was that she came in and slammed her purse now and almost immediately started shouting at them and yelling that she does there's you know she pays their salary they work for her things like this harley unreasonable right she just wants to go get the forms for her and her i r s forms and she's done every year in the past which means walking past the security gate  the testimony was that she came in she didn't immediately ask for forms she said i need to go to the i r s and that's when they said i'm sorry you can't you new deployment and basically she went nuts to your point your honour's i think everyone here probably has been frustrated by government bureaucracy in some form or fashion some point in our lives but that doesn't justify carrying on and in the way that she did and again the testimony in the light most favorable to government she was yelling so loudly that forty five feet away around the corner that they could be heard one other final point defense repeatedly argues in the briefing that this didn't bother other people in the building other people didn't notice things like that it bothered the c s so's they noticed all of their attention had to focus on her their job is to protect the federal building and to enforce the rules and as it turned out there is no evidence that she was connected with the protesters that were happening outside but if you examine the context of it from the c s o as perspective they don't know that all they know is that somebody is carrying on very loudly sucking up all of their attention and energy and making disturbance and she got a fifty dollars ticket for should be required to pay thank you understand the short point in response st with respect to the waiver argument the record is just really misrepresented by the governor completely misrepresented the government did it with respect to the waiver that this was the government simply the magistrate used the wrong standard and that the government simply quote did not object that's not what happened here what happened here and i'm going to quote you from day one hundred and thirty eight of the appendix this is the government i be put on notice one is by being warned orally there are cases the government acknowledges that have found the world warning suffices the other way which both do not need to be satisfied is a conspicuous posting in this case that is clearly satisfied usa said this on the record this was not simply a case where a wrong standard was used the government sat silent this is a true it's not just a waiver it is the government taking a contrary position  posting in this case to say that there is some ambiguity in the record if there is an ambiguity as to what conspicuous mean statutorily then the rule of lenity would require that it be interpreted in defendant's favor if there is no ambiguity which i don't think there is based on posting does not need to be conspicuous and offer criminal liability to attach and that is simply not correct and it's not the of the position they took below on the conspicuous posting not only is it clear as the court has noted jury instruction that added an element which is actually not on point because that's not what happened in the truce with a button but then right in the transcript in that what i just read to you from the transcript here he said the government the magistrate used the wrong standard and the quote that i wrote down from his oral argument is he said the government did not object and i'm saying that's not what happened what it was so he got what happened is the port that portion i read you were actually they say usa is words where in response to the rule twenty nine motion notice requirement is clearly says correct because of conspicuous posting but i suppose that's not inconsistent with having taken a position earlier that there is none but to the extent the court is considering the statute as imposing one we've met but except the problem is that he never took the position below that there was no notice requirement he never did that below he never did that beforehand so it's not an alternative argument this was the only argument and on the conspicuous posting on the conspicuous posting the only part that i want to respond to that response to that portion of it he said that here having it behind a bulletin board is sufficient words conspicuous even if you can't read it the st point factually is there actually is testimony yours words  appendix there is direct testimony where the c s o testified that you cannot read the words of the regulation from where miss wass alicia dr was lucian or any other member of the pie it would be standing because of where it was posted all you could read was the title now going to what conspicuous posting is required i'm going to read not from bishop not from stracke off but from the government's own case strong which is the one case they rely on as to what conspicuous posting requires it requires posting in a conspicuous place where you can quote reasonably impart the information to the specific defendant concerning their violations on the fact of their case in other words it's not enough to see that there are rules or regulations which is all you could read here it needs to impart knowledge in other words you could read the actual text of the regulation that she is deemed to have violated and case and she came in with a gun to the federal building and that we're not and there was no conspicuous posting saying you can't do that it was registered and so one could could she be arrested for coming into the building with a gun she could be a while in new york she could certainly be arrested work criminal possession of a weapon under both state and federal law i think but could she arrested for a violation of this particular regulation i would have to say probably not if it wasn't conspicuously posted in other words at a place where it can be read and that's actually exactly the facts of strap off but i'm having a little trouble understanding what this notice is going to look like i mean you could paper the whole downstairs of the entryway into the courthouse with rules about things that you can't do and there's some measure of recent must tell your honor the all that's required is the posting of this document it's one piece of paper that's it so no one saying that anything more than this one piece of paper is required however in strong for instance which again is the government's case what is required in order to satisfy that or or in struck off or another cases is it needs to be posted at i level at a place where a person can read it we're not claiming we're not relying on the separate regulation that says it has to be posted form at every single entry of the building that's a regulation that's not the enabling statute that is not required what is required is that a person in her position be able to see it and where it was posted and think the questions are going  to make two arguments i get it you say you just need to post the regulations in a conspicuous they have to be conspicuously posted and that is essentially an element of this regulation you can't convict anyone for violating it if that posting requirement is not satisfied but your other argument is that this regulation itself is boyd is applied to your client and that one does seem to suggest that if you wanted to have the regulation apply in circumstances like your clients or somebody is is speaking very loudly to be heard forty five feet away in approaching someone very close then you need to be more specific in the regulation itself more language in the regulation is not fair actually your honor yes but what i'm actually saying is that for the vagueness portion of it all that needs to be done is it needs to be interpreted when within actually the statute itself as constituting creating an allowed or unusual noise or a nuisance and then the next action is otherwise impeding or disrupting the performance of official duties so the word otherwise would seem to suggest that the previous sections also rise to the level in order to be criminal of impeding or disrupting the performance of official duties so to salvage it from big miss and borrowing really from the supreme court's analysis ingrain adverse the city of rockford what we're doing is we're saying you can interpret this statute we're not challenging that it's vague in all of its applications you can interpret it and apply it constitutionally to things that are clearly that are clearly disruptive or you can show that specific conduct was disruptive but in the application of this case where a de level is not specified where she doesn't speak any louder than the officers where the officers can agree what it is that she did wrong can agree which sounds were loud and which sounds were not loud where she's told after she asks why am i being arrested that she's being arrested for being a bitch or for disorderly conduct and only after being detained for twenty minutes when another officer comes over they gets to figure out what section of the statute she can actually be charged with is she charged with this fence it is vague in this application because it is arbitrarily in discriminatorily applied the last point that i had your honor very very briefly is irby i just want to address this on an oral argument take thirty seconds thirty seconds  on oral argument my adversary relies on irby and herb is actually talked about in strong itself so if you look at the strong decision specifically on page fifty eight dollars of that decision it says the  th circuit interpreted this a different statute in irby and held that the application of the rules was not pre conditioned on conspicuous i'm sorry excuse me hell the posting requirement was found in a different subsection of the regulation than that which described the substantive offense and a different subsection of the statute than that which gave the secretary authority to promulgated regulations in other words the difference in irby and this case and strong strong recognizes clearly in section a that conspicuous posting or actual knowledge is required then strong refuses to extend that to say that posting at the door which is not contained in the enabling statute of the united states code but in a separate regulation is not required for criminal liability and it specifically distinguishes irby or comes in in play with irby by saying irby is a case where  found just as we find here in that statute different statute the enabling statute did not require the conspicuous posting and the regulation that did require that was a separate regulation so it all fits together and there is no circuit that has found otherwise so thank you thank you both we will take the matter under advisement