represent the appellate germy way in this case this record when it omitted any mens rea element from the jury's consideration to trial for impersonating an officer of the united states under section and on that basis the district court rejected proposed jury instructions which included both a no one requirement and an intent to defraud requirement that was there because his way submit that statute section nine twelfth's still farther and in dicta said that the removal of that phrase from the two did remove it as an element but the specific holding of cord does not deal with jury instructions for the court need not overrule court in order to find a jury still need need to be instruct i'm not arguing that fraudulent intent need be alleged in an indictment even though the th start to circuit still requires such intent be alleged so for purposes of this wave position we are simply arguing that the jury need to be obstructive on a fraudulent intent which court did not specifically address so we know this court does not need to overrule its prior precedent specifically court which would be entirely consistent like the th circuit with submitting the element to the jury element again the only rationale we have from congress is that there are laws that the language as meaningless if the language is actually meeting last removal does not change the substance of the statute moreover fraudulent intent the requirement of fraudulent intent is consistent with criminal jurisprudence generally which requires criminal intent for someone to be found guilty of crimes perceptions to that are very limited section nine hundred and twelve dollars has never been identified as a strict liability crime by any court and no basis of the stake or accident or misunderstanding of the law that was not contemplated as part of the defense certainly i think there is there would be an argument that way certainly didn't was not aware it violated his right to present a complete defense so not only did the omission of any mens rea element from the jury instructions over the government's burden by removing elements that require proof beyond a reasonable doubt it also joint but he was simply trying to offer a motive which would not actually be the difference or well it may not be a perfect defense but it doesn't make a jury nullification the argument is that one who  ruling did is basically precluded way from even mentioning ways motive as again because it was found to be jury nullification the argument again is that his romantic interest is relevant to whether he had fraudulent intent i visibly armed at night well st i think it's important to know that ms bishop opened her door unprompted by the way and all he had done at that point was hop out of his vehicle learn a badge and a holster gun he did knock on the door she just opened it before that at that point defraud someone who is interested in pursuing someone or impressing her is not intending to cause her some detriment fraudulent intent is what separates the criminal from the breitner black's law dictionary defines fraud and  misrepresentation lying misrepresentation of the truth or a concealment of material fact to induce another to act to his or her detriment there's a detrimental purpose that's inherent to the statute and if one is pursuing a real magnet what about  know i'm not sure i see that either for example the level which where the assumption was that the information about the other person's whereabouts was of no particular interest in the target of the deception or in russia where getting from the trying to get somebody simply to change their behavior is sufficient well by virtue of artifice and deceit that's what the left with decision relied on he wasn't just trying to get that he was not of the agent that he didn't knowingly present himself as someone wielding federal authority when he did not it's impossible i just don't see how you could satisfy the standard of didn't know that he was lying to her no no no we're not arguing that and falsely again only modified that st element falsely does not compensate for a lack of not requiring going to conduct a fraudulent intent the argument is not properly instructed way dramatic interest would have been relevant to its lack of intent to defraud he was not i think something that is not an element of the statute that argument falls apart but i guess i do have to say here he was trying to trick her into going out with and doing something she might not otherwise have done because maybe she felt pressured because it was an agent rather than done more wealthy or out maybe she was in profit she would have otherwise gone out with him he was nonetheless trying to deceive me into doing something she might not otherwise have done these are the actual issues for the jury to result that they would even be presented with these issues our point is that you're right this is a very prime issue that the jury should have been presented and again it's not for us to determine whether that defense would have resulted in a innocent verdict or not guilty verdict but it's whether the jury should have been presented with these issues to address and whether the element the mens rea the element or something a jury should have decided and i is no basis on which the dependents romantic motive in this case would have been relevant in any way other than to improperly sway can influence the jury to conclude that nullify the statute by concluding that what mr wade did here was not that serious or that there is no other reason that motive or his romantic interest in the victim in this case was relevant and the officer of the united states that falsity must of course being knowing that's what the words falsely to me that means a person cannot be operating under an accident or mistake a fact when protecting or do you have what would you say to the defendant how in hypothetical with the statutes make someone criminally liable for dressing up as a da agent at a higher when party is wielding a bad that the bar to get a entertainer hypothetical is not criminalized by the statute because while someone who appears in a how we party might be falsely pretending to be a dea agent they are not satisfying the nd element where they are acting it such gun and he tended to investigate somebody for a drug offense he went to someone's door he asked questions team showed a mug shot these are things that the agents do and that's why we had for drinks as part of our duty and so the nd element act as such is what distinguishes a bragger some of the criminals and where you have both factors where you have someone who is falsely assuming and pretending to when we were addressing the st amendment challenge to section nine hundred and twelve in that opinion we said that we relied on the the language from leper which  that too just to say the constitutionality of a statute that requires that the person sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct the defendant here proposed exactly that language which really we relied upon to save the constitutionality of the statute proposed exactly that language in jury instruction why  states and then take action in conformity with that pretense that actionable conformity is what causes what is being fed to cause someone to behave differently but having a more specific explication is that would not be quite helpful to the jury in trying to distinguish between them and the actual charges in the many hypotheticals that can be developed here i also have to say agent that encompasses bad assertion of authority encompasses the behavior of trying to get someone to do something based on your false assumption or plea to and of authority and in this case there was ample evidence that mr wave of false pretense and action in conformity did cause a victim to do something differently him walking up to her door with a badge and a gun cause her to open the door that's what she testified to she's a single woman living at home and without that badge and gun she would have opened the door it also caused her to answer questions he asked about this fall person and it caused her to be concerned that there was criminal activity in her neighborhood because it was being investigated by someone she believed to be at the agent so the instructions are an accurate statement of the lot of their exactly the instructions that were given bonine district court that this court affirmed in fact they went a little further and instructed on assertion of authority and so nothing about those instructions violates the st amendment or requires a different conclusion and then bony hear nd question the government's use of the phrase strict liability may have perhaps been a poor choice of words but if the court looks at the record in the district court of that argument which is in an appendix dollars i believe what the government was pointing out was that this statute does not require an underlying motive and the ferry motive and when the government you district liability terms pacifically reference statute such as themselves living in a bad neighborhood that underlying motive a rationale is not relevant and is often precluded as a jury nullification argument and that is what the government was explaining and trying to articulate to the court in that argument and that's how the court took it and in fact if you look at that exchange in the district court the defendants mr murray agrees with the government's characterization that the underlying motive or rationale was irrelevant when the government used the term strict liability that's what the government was referring to that there's a difference between men and knowing sol when pretending an underlying rationale for the false pretense the former is relevant a defendant cannot be held criminally liable for falsely pretending to be a dea agent if they do not know that they are falsely pretending that it is that they believe that they are exactly the agents under  sake of fact on the other hand a defendant can be held criminally liable for the statute even if the underlying rationale for their pretense is innocent or not the fairy like here the argument was that he was just trying to impress the victim and get her to go out with but that underlying motive or rationale for the conduct isn't relevant to the statute penalizes the false pretense and action and conform with regardless of the underlying rationale and that really is the distinction and that takes me back to the argument and the distinction that the government makes with what the defendant argued in the district court and the defendant is arguing here that the defendant has  big statute merely requires a knowingly false pretense of being an officer of the united states and then an action in conformity to that action in conformity there with separates the braggart from the criminal the party go or from the criminal but the underlying motive the rationale for the pretense is not relevant to any reason other than jury nullification weighing the sympathies of the jury to refuse to penalize someone from engaging in criminal conduct when they might just be having a romantic interest that they don't know how to otherwise express and that shearing off occasion is improper any of those elements but phoneme held that intent to defraud and assertion of authority are not elements of the statute and phoneme therefore control in this case is no different than the other cases tha wood told the seller that he works for the iraqis let them purchase the what it asking price that was helping sufficient to violate the statute and hamilton in this circuit where an individual rented a room and said he was influence to influence the behavior of others for example hamilton was the owner of the boarding d room that a boarding house tolerated his conduct when she would not have tolerated it for the anyone else in the government proof of such threats and the same is true here where the government proved that the victim open the door and engaged with the person she believed to be a d h and in investigating the purported criminal in a way that she wouldn't have if he was not an agent the victim in this case testified that the reason she opened the door was because she believed the man standing in front of it was a the agent and the reason satisfy me what i've been calling the conversation or the intent to cause issue that this court raised in boning the constitutionality standpoint but that expect is what address  that was properly constructed in this paper the jury was instructed exactly as the jury with instructed and boning on the court should follow bony furthermore there was ample evidence to satisfy all of the elements and satisfy the cheering verdict there was sufficient evidence that mr wade did falsely present the agents he never claimed and does not now claim that he did not know that he was not agreeing agent there was never any such contemplates actually not context and the government's response to that is that context matters with the jury's not asked to find anything in relation to contact with that person had been charged under section nine hundred and twelve dollars under the government's instructions he would have been found guilty proposed to pretend that i ask you this is persecution is an appeals under the statute offer a field day for hypotheticals about costume parties and theatrical productions and the like can you direct us to any actual prosecutions that you think are way out of bounds i can't know and this is a honestly the only violation of the statute i've  the government here says that bone and doesn't require fogl intent but at the same time boning again said fraudulent ten is what protects the static from st amendment challenge you can't have it both legs you can't on the one hand hide behind the project  have been helpful i agree it would have been helpful and it was an error not to instruct the jury on that language it would have at the very least put some meat on the requirements of the government had to prove so for those reasons for the lack of any submission of any mentor element cases way to confess and you've never done that are point to that motive is relevant to whether he had fraudulent intent or relevant to whether he was asserting a story whether that's true or not is for the jury to decide and the government could have perhaps