specifically subsection two which was the felony subsection and the elements under that subsection of the statute are only one possession of a controlled substance two knowing of its presence and its illegal nature  missouri state courts of appeals have held that over and over again including cases that were cited by the government including state in the cloud the board and the immigration judge below decided that they could nevertheless look at the underlying controlled substance  issue and determine whether a person was relieved was removal because by looking at that individual substance however those decisions were incorrect for at least three main reasons first of all because the state case  law dealing with this with this statute finds the opposite as well as a circuit court case law finding the opposite with very similarly structured statutes and supreme court case law secondly the structure of the statute itself here is indivisible on its face and finally if we ever get to looking at the jury instructions the jury instructions actually support this going as well and for that reason it a reviewing court cannot look at the underlying substance to determine whether somebody is removable and here the lowest common denominator would be for possession of salvia which is not a federal law elated federally regulated drug therefore mr bueno was not deportable and should not have been ordered deported specifically so  case love this circuit has already decided this i know that had byrd and bowman and mcphee were not dealing with drug statutes but they were dealing with a statute that was on its face almost exactly the same as the one here where they had a statute of conviction and a term that was defined or that was included in the statute of conviction defined separately in a different part of the state's code and this court found in each of those cases that it provided strong support for the notion that those definitions of each of each phrase i guess or each element would constitute factual means not separate elements of committing the crime so when had heard the term dangerous weapon it was defined in a different part of the minnesota code and that was a very very strong indicator that it goes that list of potential underlying weapons was meant to be factual means not elements of the crime it is the same thing here the statute here says nothing about what drugs are or are not controlled of a controlled substance whatever the underlying substance was it does not matter as long as the prosecution proved that they had something in their possession that met the definition of controlled substance and the definition of a controlled substance is a whole list of hundreds of different possible  substances combinations of substances and they are found in a completely different section of the missouri code in state b harris your honor so that is a different issue that is talking about it's a prosecution which is not the same thing  time and how they can do that without violating double jeopardy and so we wouldn't even be discussing double jeopardy if each drug was a separate element of the crime it's only an issue because the element is just controlled substance not the underlying drug itself and the way to get around double jeopardy problems is by the state legislature indicating that each substance should be in a unit of prosecution meaning they want the state to be able to prosecute people and punish them cumulatively from multiple different substances even though they constitute convict multiple convictions of the same set of elements and it that may be i don't know that the language was maybe the best maybe it wasn't the best choice of language but if you look at say the nichols for example which is cited by harris that dealt with i think carrying a concealed weapon the defendant there nichols was convicted of four counts of possession or carrying a concealed weapon each of those four counts was based on a knife four separate knives and i was a knife is a knife is a knife it's the same sort of elements four times and yet they were able to convict him specifically because the legislature put that word a into the statute to suggest that this person someone who was caught with multiple of these multiple knives multiple stars and whatever they would be can still be prosecuted multiple times because it's a single unit of prosecution and we don't want it to be a double jeopardy problem because we want them to be able to be punished you mean it's a plea and it's end parasites directly to nichols the and again i would also note that the department of that the department of justice raised the hairs issue for the first time on appeal so it's not even properly before this court but regardless it does not it doesn't matter it's a separate issue it's talking about how to avoid double jeopardy world i'm not saying the court can't look at it but the partment didn't raise it until it got to the circuit it was never raised in front of the immigration judge this idea of single units of prosecution was never raised before the immigration judge it was never raised before the immigration the board of immigration appeals generally the u s supreme court says that you know courts can't pass on an issue that was not raised initially but on the in the cases below but regardless they either way it doesn't it doesn't change the analysis in this case because the single units of prosecution is simply a way of getting around double jeopardy even when you're charging someone multiple times under the same exact elements and in addition the jury instructions here i'd like to point out again the fact that the word inserts controlled substance and certainly with controlled substances in print to seasoned brackets and according to the instructions for how to use jury instructions the directions something that's in is something that can either be left in or taken out depending on the facts of the case something that's an element it would be reasonable to say could not be removed from the jury instructions and yet the fact that that's in parentheses means that that name can be taken out if need be depending on the facts of the case so it's not it's not an element but what is not in parentheses in the instructions is defendant possessed a controlled substance and jurors are finders of fact so of course they have to be given the underlying factual basis in order for them to be able to make the decision that a statute has been violated that the elements of a statute have been violated and so that's part of the reason that these the name of the of the drug suggested that it be included in the instructions before it's given to the jury because it provides them a roadmap to say you know you insert the word salvia and then it says comma a controlled substance so that indicates to the jury ok if the if the prosecutors proved x y and z i can conclude a controlled substance was proved but that's the element the underlying facts are not elements they are simply the brute facts as the supreme court would call them that that someone undertakes in it's the facts it's what they do in order to actually commit the crime but it doesn't represent the elements themselves and i think if i unless there are other questions right now i'd like to reserve the rest of my time thank you if we look at the authoritative sources of the state statute which is the missouri statute besides touched our language the supreme court wants us to look at the state cases which is hairs you know is very distributions such dots that's pretty convincing your honour's if we take a look at the other state statutes which do require that the court in order to determine what those the jury have to find beyond a reasonable doubt that is where there's a means you know me that's what we really look at as a as a judge when you give instructions you know you have to tell the jury decides what you have to find you know or find the defendant guilty and the elements here are fish he had to have possession of a controlled substance well the state cases specifically say that in order to have possession of something of that controlled substance the defendant must know d the  nature of what he is possessing that is he can't just possess something that is a controlled substance he has to have knowledge of the nature what he's actually possessing that is it's not cocaine it's marijuana the and that makes plenty of sense you know specifically all saying these are all side in our in our brief that in order to convict under this statute you have to have knowledge of the nature the presence and nature of that software controlled substance not just any   well my reading of the state cases that is they require conscious intentional possession in knowing the presence and nature of the substance the controlled substance well how would you not read it that way if you think you know you have no but but it turns out very you know you're you're having marijuana well if i thought i had a reagan i know how my going to get convicted of marijuana if i did not know the presence in nature of the itself i don't know why anybody would want to get high from reagan oh but i'm just saying hypothetically if we have a situation where an individual is buying something that he thinks is completely different in its presence in nature then what he actually has how can the jury convict him other beyond a reasonable doubt under the state cases that say he has to have knowledge a conscious intentional knowledge of the presence in nature of the substance it would it would definitely be an issue of trial because he would say i i did not know that that was there  well here we have an interesting situation there and brackets can print sees so well that's in the interpretation of what these russians actually say and we would submit that the because as brad gets an parentheses it's mandatory in the facts of the case being submitted brackets contain directions concerning the use or completion of the instruction so again it's the interpretation of what that means and we would submit that the judge reason we interpret that would have to put in what is actually being charged in the information in the complaint so those directions will be tell me if the charges cocaine that's what has to be in drug and not just any drug and finally you know if the core is still unconvinced and has to do what matthew suggested that is if there is no definitive source of information to whether it's means or  except cases that are talking about double jeopardy and state b nichols again the case that harris cites two specifically says the double jeopardy prohibit upon multiple punishments for the same offense is limited to preventing the sentencing court from inflicting greater punishment than the legislature intended but if the legislature indicates by using the word controlled substance that it wants to commit a punishment to be allowed that is how they avoid double jeopardy the second thing is the nature knowing the nature of what as i think judge granting mentioned i think that's an incorrect interpretation of the statute the way that the department skews that it's according to state macleod it is knows of its presence and illegal nature cites to the actual definition of the word possession which says illegal nature of a substance in section one ninety five point zero one zero thirty two i believe and finally taking a peek at the at the underlying documents in the in the in the record it doesn't just about them but i mean it says methamphetamine comma a controlled substance and as a state the harbin which was the second circuit case noted something that's contained in the charging document is not necessarily just an element it may be there for reasons