the case that the government chose as its test case this case is the government's design and with due respect to the government no they chose it is to ask well we know it because when  the when when the capital opinion for instance came out we waved it in front of them and they did not respond at all in saying this is the first of its kind you have a problem and that is there was a stipulation in th that the the quote is the defendant is to be later that he was convicted of a prior sex offense and was required to register under you may therefore accept that element as proof now that came about however as a result of two orders the first order is the gut is that the court denying our motion to dismiss and in its ruling saying this is not a defense to the the first element which is that he doesn't have to to register as a sex offender and then the government filed a motion in limine saying that their first motion lemony in both the first trial and the second trial saying we would like to incorporate that order and ask and this is this is the the government's request says the government here by request this court preclude the defendant ronald w pole from arguing that he was not legally obligated to register as a sex offender under either the federal sex offender registration notification act or under the law of the state of tennessee and the court granted that and so we were in a position you know i have to accept it well you know why stipulate sampling that you know of thank you's drew well your honor because at that point the court had the court granted the government's motion and in the same hearing that was where the court said all you can do is argue notice under element three and that had been again litigated for three years taking exception to that and say to the court or you may you may be your view of what the law is but we want to preserve our this is an era because of what you're now what you are now god is not only what you're considering to be an era and it may very well be there are but you stipulated to your honor at that point the court had made that ruling on four separate occasions denying us over the course of three years of litigation saying you don't get to make this argument and so at that point there it's just a question of whether or not we're going to how do you present this to a jury in a way that still preserves any chance that mr paul has under element three of the sort of offense while conceding that the court has already ruled on element one of the sworn in saying you cannot use that as an argument and so so the i think a stipulation in the interest of judicial economy was an appropriate litigation strategy at the point overlooked is i think that you should overlook the  question of the that mr pearce has raised about clear error versus abuse of discretion just because the mr paul was already in the position of having having lost that issue he had already lost lost it here well that's that that is correct your honor and there are appeals that is correct in and again having having argued this in in so so many motions to the court including renewed motions  additional authority motions it was our position that we preserved that that question regardless believe that the question is is even if this court were to disagree i think the question is preserved with respect to the motions to dismiss the motions and the grants of the motions in limine and those take us to the question of the plain language the so called plain language of sort which we would submit is not particularly plain th  that you're not you don't have to register would be very helpful to you because of this dictator in this case in this same court case but how do we how do we say that this dick in the supreme court case means that you don't have to register when you've stipulated that you d that's the problem i see in your case you've got something that you could go on it's a pretty good tight fit between the state and the federal the fact that you have to register at the state level over federal a i think the appropriate term on that just to briefly address the deflation question i think the appropriate term is is this the one raised by the government which is contemporaneous objection and again the stipulation of rose out of the precise hearing at which the court had already granted or had already denied her motion to dismiss and then granted the government's motion in limine on the exact the precise subject of that stipulation and at that same he g we agreed to the stipulation based on the court's order and i it's my position that that is a contemporaneous objection to do that to this stipulation just by virtue of the fact gant addressing the keva opinion however the the i think the way that we have to read that cases are there are two possible ways one is as addressing i think we must that there is that sort of punishes violations of its own terms as opposed to state law but that this is never the government has never prosecuted  anyone who did not violate stable and then it goes on to say as applied to an individual already subject to the wetterling act like makes few changes suggesting that there would be problems if  imagining you know even imagining a jury being faced with this question is mr paul required to register as a sex offender under this statute imagine imagining a jury looking at this question  we did have a jury here yesterday the jury determination was that he knowingly failed to register right yes under the under the third element because the motion in lemony ahead of time said he had a duty under federal law that's great and tennessee law does not control what federal law means or says are the duties which to me makes ultimate sense well anyway the jury's finding that he knowingly did this doesn't that solve the problem i don't believe so you're right why not because because it is true that the jury found that he had that he knowingly failed to register but that only applies to the third element and not to the tennessee affect federal law well there are a lot of requires registration which appears to do how can tennessee modify federal law well the federal law applies mandates registry that  a sex offender shall register in each jurisdiction where he resides or jurisdiction is defined as the state the state sex offender registry is defined as one that's maintained by the state and so issue but how do you read a conviction the definition of the term sex offender says you look to your conviction his judgment of convictions says you do not have to walk into the jackson county sheriff's office and register he is a sex offender under tennessee law but the plea agreement said he did not have to register as a sex offender under tennessee that doesn't make him not a sex offender under federal law well if federal law says that sex offenders must walk into the jackson county sheriff's office and register and his judgment says you don't have to walk into a jacket it depends on where he has to walk in to register if if the federal government had a federal registration at the f b i office would be fine he would have a case here as well at what you're conceding if if the federal government had ever bothered to create a federal registration at all it has all it's done is tell the states to conform their laws so ok if the federal government had created their own registration and there would be no problem said this is what you do then there is no problem then i don't think there would be a problem with a state order saying that you don't have to go into your state office all right  are coexistent with the state law rights because they use the same database i don't buy that wasn't just my opinion that was the what the government told the jury in this case that federal law requires you to comply with state law as what they said morning mr chief judge may please the court james pierce for the united states sort of creates a federal duty for a federally defined sex offender to register whatever mr paul's state obligations were he violated that federal duty when he failed to register and that's a conclusion that flows from the language and the structure and purpose of sort itself the penalty provisions section twenty two fifty says it applies in its first element to somebody required to register under sort of and then the definition for a sex offender the content of a registration requirement all of that is then found in title forty two sections one six nine one one and following those are all federal requirements it makes no difference what the state says support state registration requirements literally the state registration requirement rightly or wrongly by the state  there was waived if there is one that's mandatory so there was in this case no state registration requirement existing to impose on the photo except i don't know what is i've been so out of with the there seems to be a stipulation to the contrary but just let leaving that to one side what about the literal language of the supreme court opinion and i agree it's  dicta but if you know we are guided by dick to do so certainly your honor and laying aside for now the questions about the validity of the non registration condition in the state judgement what that paragraph starting from the whole paragraph is mr brennan did as well the whole paragraph is discussing the differences between the wetterling act which is the predecessor act to sort out and store not itself and it's talking about how one of the things that the wetterling act did was precisely what punishes violations of federal law not state law precisely the government's position we do as far as we know the government doesn't prosecute cases where there's not also a state law requirement now that's right by and large there's an underlying state law requirement as well and there's the federal duty and that's what sort of tries to do it creates so it does two things on the one hand it creates a federal duty to ensure that people don't go missing that's the purpose of sort of keeping track of sex offenders on the other hand sort of sets up a series of requirements of using the spending clause to try to get states to strengthen their own registration systems so in essence sort of provides a safeguard for those instances when people who are absolutely sex offenders and there's no question here that mr paul is that's a point the judge griffin raised and this is a rapist then eleven year old girl there's no reasonable dispute under any definition here well the five year old but that's true but under under store not he because of the severity of his has a lifetime registration requirement there's no dispute as to that but the larger point is this is in exactly the type of case that sort of is designed to treat it's not some sort of test case or some exaggerated or pushing the boundaries of it's a case where because of whatever happened in the state system a sex offender goes off the radar at least as regards to tennessee so if someone is there as that safeguard to ensure that mr paul still has a registration obligation that's what sorta was designed to do and that speaks to the sort of test case concern for what it's worth we cite on our brief page fifteen no it's not a test case this is this is what sort of does and to that  point page fifteen or brief there's the cruze case now it's not precisely the same factual posture but it's relevant in the in the relevant respects here in the dove valley cruise case there was a sex offender defendant who had an underlying sex offense conviction from oklahoma he then went to to puerto rico where he failed to register was prosecuted under twenty two fifty entered a plea agreement in the time of that case was pending on appeal the state of oklahoma supreme court issued a decision that essentially meant he no longer had a registration obligation under oklahoma law he was still a sex offender under oklahoma law but he had no registration obligation and then oklahoma thought he sent him some sort of letter to make that  under in the face of his age in the face of a long how many years ago it was twenty years ago or so what is it about this case is propelling to go forward criminal division so much in this case what is it you're trying to prove here because this is not a very sympathetic case on the personalities and i would i would agree your honor but it's some of the things that we've already been discussing which is where this court to adopt the the interpretation of of sort of that mr paul is articulating here it would basically make sort of entirely redundant to state law and it would fail to then fulfill the purpose for which it was designed it would fail to aspirate as an independent federal duty for any time that for some reason a sex offender goes off of a state registration network that's why this is an important case it's not a test case it's a case that shows sort of doing what it is supposed to that imposes a federal duty that operates distinct from other requirements but it really is a factual pattern that is unusual and speaking to that to get back to that don't vally cruise case that i was discussing earlier the first circuit case the defendant sex offender defendant in that case raised the essentially the same argument he had pled guilty so he had an appeal waiver of the conviction and he said well listen my pill waiver shouldn't apply because i know long we have a state registration requirement in oklahoma the first circuit rejected that argument as as we hope th isn't it to fill the gaps i mean before sort of i think their worst state registrations here and there but it was to do a national policy so people don't fall through the cracks this very type of case where his plea bargain questions and it's not obvious to me that he in fact didn't have a state obligations to register but that's a that's a difficult question and he didn't have a state registration the police department i guess you go to the police department r normally but what is the situation if there is no state registration office so you mean with regards to federal prosecution of an individual not contribute he cannot go in and enter a registration then he's got a defense and so in other words if there were no state office or or if mr paul had gone in and said i think i have to register and they said no get out of here we're not accepting your registration then he could raise an affirmative defense but certainly that wasn't the facts of the case here you know the federal government piggybacks on states a lot i'm thinking what others probably voting registration lists are  taking i believe that's correct you could be i mean different federal rights state rights i don't know the fact that you piggyback doesn't mean the federal government is limited to the states right the state's interpretation of their with because of possible tenth amendment and commandeering purposes that the state the federal government does that through the spending clause so as to avoid the types of constitutional concerns but you're absolutely right judge given that the federal government does that all the time the cab of the opinion recognizes that earlier and there's certainly no problem with that standing alone that obviously is holy we have to follow the holding to the supreme court i really doubt the supreme court had this situation in mind when they wrote that dick and not only is that true but but what they write is they don't say and state requirements must exist they state registration they say as far as we are aware and that's right this is not as i said earlier this is an unusual fact pattern but this is nonetheless exactly what sorta is designed to do i do also tries to create redundancy because it tries to strengthen the state systems as well but where the state systems fall short in a case like this sorta is there to ensure that sex offenders need to state systems were adequate to be no reason for  brief by failing to challenge the motion in limine a not filing response not disagreeing with the court and then going ahead and entering the stipulation that's at least subject to plain error if not not waiver but frankly even putting that aside we believe that the stronger of the stronger argument is simply that this is a federal law duty regardless of whether or not he stipulates on element one so i don't actually think it does have a trick you want us to say in the letter based on the stipulation the stipulation is not satisfactory to the court you know that that ground alone and certainly the federal law duty and something that is an important way to properly construe sort of i didn't focus in on the stipulation go in and because i really didn't to dismiss is denied that the judge has procedural issues that they have to stipulate that i suppose as a matter of form they should i stipulate but reserve my previously made objection as to the motion is i mean that they probably should keep doing that time after time but i prejudge given the form over substance which would get a bit that would be an exaggerated position from the government in our brief we say because they didn't agree with out a reservation an abuse of discretion point which basically means this court has to get to the merits of the argument on which we would urge this court to affirm the separate federal duty it around mister b because he did the motion to dismiss  raises as mr brennan articulate many of the arguments that underlie in fact the argument that underlies the question of the use of the state law a judgment of the non registration condition in the state law of judgment that is sufficient to preserve  the the the argument but but frankly it actually the motion to dismiss is sort of a core question and whether or not they stipulate a trial is entirely distinct from the pretrial motion to dismiss and that's what this court has decide a motion to dismiss regardless of whether it reaches the motion in limine a question so that's ultimately there are two separate at least two separate orders on appeal here stipulation doesn't do anything for the motion to dismiss trial was going to go with that motion to dismiss and with the expansive order there in and again that the discussion about the government's motion in limine he is going to follow that order the government's motion let me expressly incorporated if we just say it on the on the motion to dismiss he says that the statement by the supreme court has dictate which of course it is but that is not talking about sort of all stalking about the preexisting registration duty and that is in fact what that entire case is about justice roberts right separately to say i wouldn't be agreeing with this if it weren't for that there that is what that case is about there was a pre violation of the failure to register under your state law no they don't they they withhold funding don't think if the state laws don't comply with that yes right they don't tell the state what what their law is but if they don't do what the federal government wants to do they're not going to get the phone yes your honor and that's what they always do by the way yes it precisely and i just want to emphasize this point very briefly  absolutely a valid act under the spending clause as applied in cases like phelps not in this case because at this point the government's position is that the federal government is telling the jackson county sheriff's department to do something that state law doesn't require them to do that's absolutely a commandeering problem and it they're saying take an administrative action that state law does not require you to do this guy's relieved of the duty to register under state law i didn't think that that's what we're arguing they're arguing there's a duty under federal law i don't think the united states is contesting has no duty under tennessee but but if he doesn't then we have a commandeering problem that interfering what does that mean under the tenth amendment the under under prince or under sorry of new york of the united states from one thousand nine hundred two these are the supreme court opinions federal government may not compel the states to enact or administer a federal regulatory program the constitution can't see that they're doing they're only doing that your honor if they're saying you have no state duty to register but those the state office has to register your theory is based on fact this is bending the case that the government's power here arises under the spending clause not under the commerce clause or another theory by which the federal congress normally makes criminal laws because if it were if it were just a normal federal criminal law you would have the regular relationship between the federal law which is you can under certain circumstances murder people and the state law of murder and there's no double jeopardy as between the two of those for example in theory and and the reason you're saying that there is this close  piggybacking is because it's not that kind of criminal law but it is a spending caused by a law is that is that the basis of it that is correct and the case of felt's and i believe it's called coleman says in the six circuit address that and you know we lost felts on on a somewhat similar issue but the important difference is that under felt much money i mean to too much money with a stake that's not the case here the case here is that if this applies all their bunch of other cases i'm sorry but this is this is a difficult for me problem are there other cases that make this distinction clearly between a spending a law type criminal offense and a regular commerce clause or other and the basis for the criminal law because when you have the other basis you have a whole set of theories about double jeopardy and the relationship between the state and federal law but  little at a loss to know if there's a separate theory about spending yes your honor and in i apologize for going over the time but just to answer very briefly the there's sort of two sources one  is i believe it's united states v prince this this is the supreme court case about mandating gun registry checks by state officials say the federal government saying the states have to do that and that being improper commandeering the second sort of source is that all of the cases and i think the governor would agree with this all of the cases that where the circuit courts addressed  to states that had not yet implemented sort including felts they all closely addressed the you know whether or not this was a valid act under the under the commerce clause and whether it were excuse me under the the spending clause and whether it was commandeered and i'd submit that they all did so with the recognition that it was not because these these people were violating state laws that already