second part of the district court's jury instruction on financial gain was effectively tailored for aiding in that in the type situation the district court told the jury that it doesn't matter whether or not ms munoz was to receive the financial gain that probably would be fine in a case where there was an aging and abetting theory but the government disavowed that sort of theory and i think that this court's decision inside makes clear that the government wants to rely on the intent for someone else again that it has to go by way of an aiding and abetting not necessarily style himself committed the crime with a culinary motive they need not show actual pain or even agreement to pay so side acknowledges that when you're going by and even a betting theory doesn't matter whether or not the defendant was three see the payment but there are there are two circumstances that the errors shared number one is that it was an error that went to an element that was effectively untested and number two it was a single element here i can see that we are talking about a single element the question is whether or not it was disputed and the answer i think is the clearly was disputed and it was disputed not in the arguments because the district court's instruction effectively took that argument away it was disputed in the context of the the record of pages fifty eight fifty nine and sixty three sixty nine those are the pages where defense counsel is fighting against the instruction of the district court actually gave and that you know the government points out and they're right about this that there was not argument from defense counsel in closing on this point but our response to that is that when the district court gives an instruction and there's extensive discussion about that instruction the district court rules against you that i don't think to preserve the error that you need to because effectively what we're talking about is the lack of a jury finding on a particular element and i think that the test that this court should employ in the term and that's the case is the case that tested out in the case if there's a reasonable possibility that the jury would have i think that there's enough evidence in this record you know the the evidence that shows that the aliens gave their money to a man a male smuggler was the individual they paid and that's that page thirty to the thirty three of the ex record and i totally get up i think they paid about forty seven hundred dollars for that individual and that's an extra record thirty three and there's no evidence in the record linking anything approaching that amount of money it's in his money else so i think that even if you honour's apply a harmless beyond a reasonable doubt standard to this particular error it would still be a situation where a reversal of the required but effectively i think the most important thing and i think is very similar to the analysis and powell vs the law as a that mandatory counts of this is really the most important thing in this case to her so i think that the the receipt is a little very neither exception shouldn't apply here cars don't have any other questions on that group of amendments that were made to the statute affectively before these amendments the stack you did not apply to the facts that we have here what we have here is a case where there is no actual entry to the united states the statute was amended so that it would the cases where there have been that there's an activity outside of the port of entry and i think that that's why it's important for there to be there has to be a nexus between the lack of consent and the actual conduct so  congress amended the statute to apply this to this statute to create entry conduct it also amended the statute to say that the alien might have lacked the permission to come to the united states and this court has been very clear that brings to and come are different than the former language that was used comes into and brings into an entry so i think that when congress added those things they thankfully added them together and that's why i think the of this is insufficient because they never proved that for this well i think that that's an excellent question i think maybe the should have promulgated regulations about when you can and can't come to i think that congress is the one that inserted this comes to provision into the statute so they must have meant something so i'm assuming that they must have meant that you need permission under this statute in order to bring people to the border and i don't know how you get that permission the government makes that point in the roof they don't know either but that's the statute that congress has left us with it doesn't mean anything if they have created this comes to her vision that doesn't make any sense that i think that what should happen now is what happened before it is to go back to the drawing board i think congress put it fixed the problem that it had in the statute initially by changing britain by saying if you bring in two or attempt to bring into that that's a crime but they chose not to do that they added this brings to which is generated a tremendous amount of litigation discord tell that brings to applies before he lands or it applies after the letter and even appl under anyone until you reach your immediate destinations these are very a more if this turns and i think if there's any ambiguity and then that works against the government i don't have about a minute for restraint came about very formal as the plea to because of a certain type of definition of entry and that is where people don't really enter the country as long as they are under control of the in this case and in that mariel boatlift who what do you think come to me i think come to means walk up to the border you can even walk up right to the inspector and say and if you're you don't have quite the right to come to the come country you can say i'm from another country i don't have the right to be here if there's no violation but what did it what what does it mean why is it there it's pretty clear why it's there congress wanted to make sure that people who  people to the border could be punished by through the border right up to the border right way for example in the mariel boat case they brought people right up to the border now is it conceivable they might have had permission to come to well given the audience formalistic official restraint doctoring yes for example there might have been a parole they are say someone is paroled into testify they never make an entry heat for purposes of immigration it's conceivable maybe under those circumstances where they actually bring them to the border let them walk in and ask for asylum you might have to prove no authorization to come to that's not the situation we have here we have people didn't in the compartment they are in view the government doesn't even know they're there they have no permission clearly they meant to come and enter the united states but they didn't  aren't they did not enter well i wouldn't concede that i would think that they did enter given that but even if they didn't they had no permission to be there and it's obvious from the fact that they're hidden there's no permission they could have had and  frankly there's nothing that well there's just there's no permission they could have gotten the kind of permission that the defense wants to put on this is a permission that you have anyway entry that's certainly what they were doing they were coming in they were entering as to the defendant not as to the aliens i think yes and the only thing i would make point out as far as the first in another situation you must and in fact there are things that you know where there's overwhelming evidence of any other explanation and that's what's happened and that's what we have here we have clearly payment the is where for example the person worked in a video store and made copies to sell the person that person the employee didn't receive any in themselves but it was done for the purpose of commercial advantage of private financial gain that's what's done here there's clearly payment and there's no other explanation as to this that it's not a family it's not a friend that's that's what this is getting at is you know they want to make sure that a person isn't subject  to a mandatory minimum might have brought a friend or family member or somebody like that here there's no suggestion in fact that would be inconsistent with a defense that was offered that defense is no amount they couldn't have argued even if they'd gotten their instruction they couldn't what would they have argued i didn't know they were there but if i did it i was going to do it out of the kindness of my heart i don't think so it's logically they couldn't have made that argument so i think that that instruction that's well within the law even if it didn't it's certainly harmless beyond reasonable doubt given that there's any other circumstances that might explain it but that unless there are any further questions  theory and then they got to use the intent of other individuals that's the difference between that case and this case where the government has to explicitly disavowed aiding and abetting approach so i think under those circumstances none of the government