session as well when you make an argument and tell us something about the record a record site is really helpful because my colleagues have memorized the record but i have not so that would be much appreciated and please also recall that  case ultimately is about the government's burden to prove federal jurisdiction exists the specific issue is whether a defendant's not an indian status under section one thousand one hundred and fifty two is an element or instead is an affirmative defense however proof of a defendant's non indian status is necessary to establish federal jurisdiction over the underlying offense of malicious destruction of property owned by an indian tribe in indian country the defendant status as an indian necessarily is a jurisdictional element and like any other element the government has a burden to prove it beyond a reasonable doubt because the government failed to do so if trial in this case this court we get at this in any way other than he has alleging ineffectiveness of prior counsel in other words this defect if it is one was apparent on the face of the indictment so my st thought would be you'd waive it if you didn't file a rule twelve objection then you get to trial and there's no objection on this right you know there is this issue was never brought to the attention of the district court and there were multiple opportunities to do so i admit it's a very intriguing difficult issue but i'm wondering how could it possibly be that we look at this to know about when the district court even in a rule thirty three new trial motion wasn't given an opportunity and the last thing is i asked long that makes sense i think you're right the senate things are all ok but don't happen to them before conviction so other points so this is well wait sorry it only would be irrelevant if we're looking at this under plain error which i made it to stipulate squarely but if we look at this interplay narrower what happened at sentencing is relevant in other words into p s r where he says he's not he doesn't describe his race as indian we could consider that i respect we just disagree could have been a challenge to the indictment but the supreme court held in cotton and subsequent other cases that a missing element in an indictment is no longer there's no longer guts the jurisdiction of a federal court in fact if a defendant doesn't object to a missing i hear you saying is that maybe you went under claim error but what can we figure are we conceding that clarifies oh no absolutely not so help me understand how you can possibly come and talk to us about a missing element insufficiency the evidence as you just said without ever telling the that if there is a bench trial as opposed to a jury trial the mere entry of a not guilty plea serves the function as a rule twenty nine dollars motion at a jury trial and how would i was mad at how many understand is not just that you're the trial judge but also the fact finder and that the district court is in the position to you know make the decisions about sufficiency of the evidence without having to have an argument that would be true in a jury trial and a jury trial the reason you move in rule is you say to the district court as a matter of law there's a missing element there's insufficient evidence in this element please enter judgment of acquittal that's and if you don't do that you can't come to us to complain about it so i don't understand why it would be true in fact i would think would be more true than a bench trial because you have to have the jury there to deal with any of this well the bottom line of your letter is that there are numerous published decisions of the th circuit saying that you might have to articulate any specific grounds about insufficien evidence to be able to receive the exact review on appeal receive it in a jury trial with a specifically articulated it will twenty nine so let me ask you this way so there's a human trying to publish decisions so puckett supreme court decision two thousand  says this is the way you do it if you want to preserve error will fifty one gives you all of the instruments for doing it if you want to move for judgment of acquittal rule twenty nine gives you all the reasons for doing it and twenty nine doesn't say anything at all about the distinction between trials and jury trials vote review of the jackson versus virginia issue can i ask you this question because i find it so odd how in the world can you enter a not guilty plea before any evidence is entered of the supreme court concerning jurisdictional elements but if i could proceed to the merits of the issue in terms of whether and whether this plan or review or or  also in every one of these trials has to negate that there wasn't tribal punishment and there isn't a treaty exception those other exceptions built into the nd paragraph those are all elements the government's got in they gave beyond a reasonable doubt under difficulty i don't think you lost it i think there may have been a tactical reason and maybe perhaps prior counsel has to answer for that in a b s but i have difficulty addressing this but let's assume you're right it's a sufficiency question that somehow was preserved a no vote can't the court have made a fair inference from his description is a white male along with his tweets or whatever they were sort of the extraordinary hostility to indians isn't from those pieces of evidence could a reasonable fact finder have antagonistically from native americans oh i think that's pretty slow your honor to go down a path that a person who are to killing animist towards a particular racial or ethnic group can be deemed automatically by law d not to be a member i'm not saying by law i'm just saying isn't there an inference munce you attack sufficiency we draw all inferences in favor of the fact finder it's an inference that could be drawn not beyond a reasonable doubt no rational factfinder would find beyond a reasonable doubt the government's making a big deal out of difficult this would be there is a very very easy way the government can prove the person is a non india give them a d n a test subpoena their own law yes we do this the in a in a but we don't have to do it letters you could just do a pupil's flop people do this all the time that if that determined there was no quantum of native american blood in the person cannot be an indian and they are by definition a asking the title eighteen is packed full of status crimes do you have a single case where that status crime has been proven through a subpoena getting a defendant's d n a no but there are cases out there but there has been testimony medical relationship between mcilvaine and cook this is not like the other cases the government has cited this goes to jurisdiction that's what makes it so different this is not something it's jurisdiction that is very important because it's the sovereigns of the tribal review is for play there that they don't waive they don't waive that claim on appeal even if they didn't object at trial and i'm i'm not sure why why that rule exists  in this particular case it's a little bit interesting i'm not sure but to answer to your question of why that rule exists but the there was never an announcement of what the elements of this case were at a jury trial there would be j instructions that would lay out what the elements are here the parties never agreed to what the elements are and the court never announced what the elements are so the challenge here and i've seen this before enough in the federal rules don't really deal with it's not just the problem of the bench trial and i mean our laws a little unusual there i don't quite understand it maybe gentlemen is right that supreme court in on long clear it up but but the real challenge is also that a stipulated trial because what's going on there is everyone thinking it's an equivalent of a guilty plea but it really isn't right a stipulated trial is still challenging the sufficiency of the evidence and here is so so you agree the indictment doesn't describe him is not an indian and an exhibit one which is all the evidence we've got doesn't explicitly stated on its face that's why your argument you've reduced your argument to well it is do no review what we claim it's an affirmative defense i don't think it's the novo review the case that explainer of you what's your best case for that because i would be sympathetic to that but i'm i'm curious what the authority is i think of something or somewhere in plain error it's it's the deferential review that's described in jacksonville virginia where it's this court is highly deferential to the verdict then use the facts and in that in that in the light most favorable to the guilty verdict right go on go on to the argument ok so this court what the government asked this court to use the analysis from santos riviera santos riviera cited in the brief and i just like to emphasize what it holds it taking statute creates exceptions to the international reach of it based on the status of the victim and the defendant is very similar to one thousand one hundred and fifty two in this case this court used the  analysis to say that an exception in the nd paragraph was an affirmative defense and not an element of the crime that was the same analysis that was used in the th circuit that was the same analysis that was used in the th circuit both statute if they didn't have this element i think the jurisdiction the word jurisdiction has been used in multiple ways during during during that argument and i'd just like to clear up what jurisdiction means here there's two kinds of jurisdiction there's jurisdiction as it's used in indian country which is which law enforcement by which sovereign somebody whether it's the federal government or the state government or the tribe and then there's the separate matter of subject matter jurisdiction and that's not an issue in this case nobody's ever challenged subject matter hear their case and decide whether all the elements are there and whether the person is guilty but there has to be i mean as you know the federal government can't just pass statutes that  tethered to interstate commerce international commerce relationship with me and trust me there has to be something you can't just say my two neighbors on the driveway can't fight with each other here in texas ok there's nothing country it would be a matter of fact for the fact finder to decide that a crime occurred in in this geographic area and the judge as a matter of law would find that this your graphic area is it in country on you don't agree with that ok will it because if it were then it would be odd to say that the status of the defendant isn't in the central element but the status of the victim is i don't think that's the right analysis the question under one thousand one hundred and fifty two dollars is whether this is an an issue and then the appellate court is saying to the government overcome beyond a reasonable doubt this claim that the exception applies and it it's nothing to do with the status of the victim or the or the status of the  do you lose your own sufficiency review is there or not i think it's it would be difficult because the court would have to make an inference as you described that language of the exception be removed from the statute and this is what law is what's left contain the ingredients of the offense and does it not make reference to the remove language it's about the language of the statute and  appellant and their argument talks about the importance of the exception not the language of the exception but the importance of the exception they say well this is an important exception so therefore it's an element that's how they a federal enclave law applies in indian country and then there are some exceptions and if you remove those exceptions the st part of the paragraph doesn't make reference to those exceptions where it says except as otherwise provided by law there are other exceptions in chapter fifty three statute that's very similar to one thousand one hundred and fifty two dollars where the exception was in a separate paragraph it was based on the status of the of the defendant in the victim and it was held to be an affirmative defense and not an element of the crime the th circuit has reason the th circuit has reason the same way in webster although to a different exception and we would ask this court to do the say and reject the application of cook in practice without necessarily rejecting cook itself therefore it's an unusual guideline and it's been it is whatever the three things there are the value the value equals the cost of the whatever they the three and as i read the record here no one is quite sure how to how to and therefore there was a phone call to the commission in the record it seems like that's fine that happens all the time but then there was a reference in the sentencing proceeding it did then went to mediation can you explain what that what that was about no i don't know the facts of that actually i didn't understand it what i i think i think that it's very i think that this is the sentencing guidelines state in the guidelines that by the plain text of the guidelines and the notes to the guidelines what matters here is about not loss and i think that i think that appellant's concede that and on the reply say well that leads to an absurd result know what happened here and it sounds like the commission came back and said we think it's all three together d aggregate but obviously they just or didn't do that here that's right they give the government's position is you can choose but then it was what i just didn't understand it never is supposed to do is value a cultural heritage resource and there are three possible ways of valuing it and including combining them it's the district court's decision to try to come up with a value and you can imagine imagine  things being damaged and trying to come up with a value where you would have to combine the restoration cost and and other and other values or try to figure out what the value of it is here it's not so complicated the value of it is what they bought it for three months earlier and the argument is that that's an absurd result which is an argument that was made at sentencing but there should be a variance and a departure and the district court rejected and there's no there's been no argument that sentence was s reasonable i'd like to talk about the states that the stakes of this case here there's the appellant has been arguing or opponent argued that this is about tribal sovereignty if you read the sentencing hearing on page one hundred and thirty nine the they introduced the police chief of the tribe who came to the sentencing hearing who helped solve the case he he wasn't allowed to prosecute this case this case isn't about protecting tribal sovereignty the only person the only law enforcement entity that could prosecute this case was the federal government this is a non indian committing a crime against an indian in indian country so in roll from one of the five hundred and seventy four federally recognized tribes the government doesn't really have to disprove that but they could also be affiliated or recognised by the tribe in some way and still be considered india for the purpose of  that they're not affiliated with or associated socially or religiously with a tribe this isn't a burden that the government can really do it's a much more practical burden and a fair one for the for the defendant to make a claim that they are not india and then for the government to investigate a claim so you disagree you get the blood same point however we analyze that would be sufficient anyway  well it's a two part test for somebody to prove that they're india the st test this is from the supreme court rogers case forty five us five hundred and sixty seven and then it's it's been cited by a number of other cases and i think the  clearest cases are those th circuit cases reser ramos and bruce so the the defendant or the somebody claiming to be an indian has to prove two things that one that they have some quantum of blood that their ancestors india and two that they're affiliated with one of the five hundred and seventy four federally recognized tribes so the government can disprove that  those two steps one of those two parts now the th circuit the practice decision is from two thousand and one and i'm not i'm not aware of the th circuit doing any d n a tests to an indian is by interviewing them and having them admit that they're in an india but otherwise it's it's a pretty difficult burden to prove that somebody isn't affiliated with a tribe in some way and that was the bruce case where the in the way it that system is designed is a conditional plea where the district court then addresses it makes a ruling and then it all goes up like that but i'm not sure why there was a stipulated bench right there i think a defendant has the right toe to wave up a jury trial this one of the defendants decisions that they're allowed to make and then but the government doesn't the government have to consent if you don't rule i'm not sure you matter and westmoreland we discussed it in our in our brief it's a supreme court case that discussed whether the government needed to prove or have sufficiently proven or had alleged properly alleged if somebody was a non indian and decided that it didn't matter there was a harmless defect because it hadn't been raised before the verdict so that's not a decision that supports appellants argument that this is something the government has to affirmatively proven fact  but i do feel it's necessary to raise one issue in response judge old questions about paul case and all the other cases that you know why should that rule be followed in the future i think it's very important to note the supreme court has held and closely analogous circumstances that when the procedural default doctrine changes somehow the jurisdiction can't retroactively apply and i'm not saying that you retroactively by anything i'm asking you puckett and party may preserve a claim of error by been forming a court in the court's ruling or order its neighbor saw of the action the party which is the court to take and the only thing i've heard from you is that it is sufficient to say your honor the evidence is insufficient and the judge goes well we haven't heard any evidence yet you're just pleading not guilty the government hasn't offered anything i haven't looked at the stability facts and anything and i don't understand the new one some a chain will fifty one i'm just asking you what would be the authority for ignoring the text of the rule what the supreme court said in pocket and what we said and don't count on overcome a strickland a b s violence if your clients indian he's going to win there's no strategic reason here right now to the issue is not no i'm just asking no i'm just asking you that point he will win on his b s if he's indeed you have a thought on that i would suppose he would but that doesn't matter in terms of the jackson vs for trial that i know i know i'm just obviously ok go ahead so policy choices congress made they don't not go to jurisdiction and therefore that case and any any other cases that do not concern jurisdiction or an episode here there are very different lot of cases so i also want to talk about section six hundred and eighty nine which the government pages of the justice criminal justice resource meaning the government's own guy gets to its attorney says these are jurisdictional issues it's only internet you can pull it up there is a chart and the chart says indian on indian indian in an indian indian project versus virginia applies to jurisdictional elements such as the f b i see lot you know the insurance lot of cases where that this court has failed in other courts have held those are elements this is quite simple it may not be something that you know the court thinks it is fair to the government but the government both only has the burden to prove beyond a reach here's an appeal to each and every element and they did not do so cancel it not opposing counsel acknowledges that if this court applies jackson versus virginia simple proposition it's it's a jurisdictional element it was preserved by the approve the not guilty plea and there is insufficient evidence to prove it beyond a reasonable doubt under x and versus virginia it's that simple guarding the tribal sovereignty issue whether in this instance counsel for the government believes it's disrespecting trouble sovereignty that was not my point my point is congress created this jurisdictional element in all case is under submission and you all are excuse