lack of knowledge but the government made this exact same arguments this court and sarah mentos and the exact same facts and the court put it up that affirmative defense that they should it's waived and they should be allowed to make an argument can you address that argument absolutely absolutely judge that argument came up in removal proceedings two and a half years ago and there is a there is a jury instruction and out to the jury instructions in the arkansas model jury code that specifically speaks to this problem this was the same as in sarah mento what happened is the legislature took away the knowledge requirement and knowledge of want knowledge or knowledge of the substance that you intended a limb or organ knowledge is not the type it's not the type of mouth it's just that you have no knowledge it's even a controlled substance exactly that's the federal law it's baked right into the statute and it's in the pattern instructions well when we get t arkansas law and this is that is the same question judge or what is asking the arguments by both of you and your principal bracer just in footnotes and i don't think you father reply brief and that may be because this is the direction the i j a went on but not the be  but i just don't see anything conclusive that shows that knowledge of controlled substance isn't essential under arkansas law for a possession with intent to distribute and i know the jury instructions don't contain it but my question for you is can you point to any case where an individual is convicted under a recklessness where strict liability theory of possession with intent to distribute yes that's i can do is point to possession cases where it's obvious you need knowledge if the drugs are in the closet that's going to be clear but i'm wondering whether or not you have any case reported anywhere in arkansas law that an individual could be charged with possession with intent to deliver and yet be guilty without proof of knowledge that he knew is controlled is this such a case the judge of that jury instruction duck talks about certain cases from the supreme court that i'm not prepared to talk to you about today but what it distilled out of those cases is that there's no knowledge in the words of the statute but there's a separate statute in florida that says if there is no knowledge requirement we are going to give the knowledge requirement is going to have a knowledge requirement so the so this is statutory judge so that the crime can could be be committed knowingly intentionally or recklessly and even in his letter he notes that the crime can be committed recklessly this is as far as we're arguing reckless but it's like a stretch correct me if i'm wrong isn't it your burden to show that you're eligible for relief and therefore wouldn't you still have to point to a reasonable probability that as opposed to a theoretical possibility you're talking about the first of sermons or the other talk about well well well the laws got to you can't go crazy and say it's going to be a client was convicted of a ten pound possession that subsection well so we know he's convicted of a possession with intent as intense a distributor to the liver or liver but it's hard for me to ever understand how someone could have possessed with intent the see enter intent to distribute and yet not have knowledge that is a controlled substance well i think the best example is one that i plan to to  a little later in my argument and when i talk about math this and math this i don't know if you read it the math this has a has a footnote the talks about an immigration situation and the crime involved as well i don't i don't know if i'm not begging your question you're going young or i want to go going you go with what you know i want to go back and talk about that law that says if there is no knowledge requirement here's the knowledge requirement so here's the knowledge requirement of this crime in arkansas my client's crime it is knowingly intentionally or recklessly and we believe recklessly us for example ok so give me the hypothetical re he's a trucker he's hired to carry a load he don't know what's in that load it gets stopped he gets busted that's simple you would think that would be a possession with intent to deliver case anywhere in arkansas b i had that illicit trafficking has to cover something other than drug trafficking non sensical it's not really differentiated and so you trafficking be a separate crime from drug trafficking and that while drug trafficking has the means rare illicit trafficking doesn't have to have that in a few different than drug trafficking and starkly different policy reasons number one although some drug traffickers bias escape deportation under this categorical approach they're still going to get them they're still controlled substance  right that's the basic policy noncitizens address so the question i see that l g h presents is why doesn't illicit trafficking comprehend the reckless truck driver you described who may not know there's a contracts controlled substance but in fact he is trafficking because he is getting something of value under arkansas law it is something of value i think you're straying away from aggravated felony and just going to the the general immigration law of course of course we  port people for illicit trafficking made a felony is defined as illicit trafficking and the state says you're guilty of possessing enough that we can presume that you are trafficking why are those all functional equivalence and how do you determine that was a conviction for sale of cocaine they specifically said they were going to opine on with intent to the liver and they did not upon to attend the liver and  a strict liability crime in the board just refused to do that so said the board when a little further in this published case and you know even under the government's best arguments it's difficult to imagine how the board to demonstrate that he is in fact eligible for this form of relief for which he's applied that means that he has the burden to demonstrate that he has in fact not been convicted of an illicit trafficking offense which render can find that it was a drug trafficking crime were simply we discovered the new law when we undertook the mathis analysis and we looked at the intent requirement we do believe it is there so to the extent that we're asking the court to do something that wasn't there we're withdrawing or we did withdraw or human the intent did not have to be demonstrated to the extent risk in the court to do something that's done over with view and we would submit that it was in a way of the issue but i see withdrawing or i understood that the twenty eight j was trying to say the i j s ruling was sound that's co and maybe we could we're reviewing the b i a but you'd therefore have to be saying that they i g s opinion impacted the b i and we could for but are you simultaneously withdrawing any argument that would say that short of the and question which is that illicit trafficking could be met with no showing or with just reckless the government is not pursuing that which was a substantial part of their brief yes that's true well done i guess is and we're not at all you're just adding the underlying we're adding the underlying argument to the extent one of our footnotes when we read it we said well this could be construed as saying that the arkansas statute does not contain  and then there's a two that says even if there is a mens rea requirement arkansas law has a mens rea a requirement yes that is that and that's a separate and apart alternative argument is that the outline of your case absolute and then you've got sprinkled on top they bear the burden they bear the burden and i haven't made that required showing that even if we try to get to some lower for beyond knowingly and intentionally to recklessly they have it in any fashion demonstrated that when this plea was entered that this was done so only proving recklessness in a boat drive our argument that arkansas  doesn't provide for amend it nevertheless is where yes your honor it under arkansas law reading there are statutory framework as a whole if there is no explicit men's wear requirement then the statute would default under five dash to the two or three b and force the prosecution to prove that the action was purposely knowingly or recklessly committed wow ok no that's not in your principle br the cite you just gave us for the default rule that puts back in a c enter it does make the case easier but this is a footnote in your original brief that you're now saying has ambiguous so we're we're we're this is important for us to try to get arkansas law right jury instructions contrast in two simple possession don't have it but your argument is that case law establishes conclusively yes ok well and that makes the case much easier i think with regard to the matter of the whole g h it simply isn't present to be an illicit trafficking offense the only thing that the government must demonstrate for removal charge or converse only the petition of trying to prove eligibility for relief must demonstrate when they bear the burden as they do here g h convinces me but only so far l g h convinces me that the including language means that the federal drug analog is the third circuit case you which says you've got two tracks you can go the hypothetical federal felony well this year say maybe at least meets that end of story but says no it doesn't meet that and therefore illicit trafficking has to mean something more i agree with all that logic but how do we know the something more is strict liability offenses well sage l g h was a slightly different statute under the under the florida statute that was an issue a matter of there was no c on to a requirement whatsoever jury instructions that's what i've always relied on the jury instructions don't say that how do you do how do you work around the jury instructions yeah the jury instructions we went back and took a look at the it's it's a bit confusing h legally accepted by the supreme court of arkansas are they is it a committee that puts together and does the best it can or is it some sort of does it have the in from mater of law in arkansas i know how they work in different states varies i used to be on the jury instructions committee in texas yeah it's i believe it's put together by a committee but you know under mathes we really have simply th you know the the few forms that we can look at in really just looking at that in terms of determining whether something is is divisible or whether it's categorically if it's a crime or if it's divisible that was the an wasn't able to show that they knew the else was they but they would be eligible only under a list of trafficking yes they do have the opportunity it's not a it's not a strict liability system where they could attempt he didn't here he pled guilty he elected not to rebut that presumption and he went forward in that way he had the opportunity to do it he could have gone to trial he could have proved it there is an affirmative defense for lawful possession of whatever the substance happens to be that you'd have a tough time with ten pounds of marijuana under that but he does have the opportunity to show you know he could have pled specifically to conceive a bully recklessly possessing that if you had no idea what it was and in this he didn't he simply pled guilty and go oh he simply pled guilty under the statute as a whole and therefore he based on those conviction documents which we must look to under shepherd those are the documents that demonstrate you know that that's his burden to show that those know we can't look under abusing teen system and that the fact that there's ten pounds means that anybody knows this because we have to apply it on the one ounce don't we yeah under the statutory framework although under arkansas law when we do look at the jury instructions the amount has to be found i hope by me it says right here by reasonable doubt not only the substance but also the amount and then with regard to trying to rebut that presumption the jury is allowed to look at how the amount that was that was given right which i believe is your question we're not allowed to look at it we can't we can't really ask the question we can just look at here's the charge that has to be way we don't know that don't know that your honor they're not there with them and that would indicate that they would not there there was a case out there i believe it's still in the briefing process in the ninth circuit we looked at some of those in the context of titian is burden we can clearly see that there is this yet to require and it's a much stronger statute than the house that was at issue in the in the florida case and also go forward on that judge that brief three separate times that's right a requirement of the florida statute looking at the cases looking for the case you're asking me to say right now on the judge decided is he instructions finding yes they are there supreme court yes there are a formulated by the supreme court and they have the force of law i believe judge what do you do with edwards you know i would ask you the be decided is as it did we had no recourse for this court to argue about broader illegal trafficking in mens rea there so i would actually if you want that have to come back every way and  back to where i was back there and start looking for the supreme court cases i'm asking you know have you how do you distinguish i cited this case and there are twenty eight edwards yes so you've had a chance to read it now  i remember that as i remember that's only constructive possession i'm not sure i'm not sure that one thing's for sure that when they got to the b i had a they said ok they said ok it doesn't have it can be that's not what the supreme court has said over and over and over again they're just saying that about drug trafficking they're saying that about the definition illegal trafficking including a drug trafficking  with my brain thinking possession with intent has to subsume the simple possession which under arkansas law requires not a separate crime i think they took the knowledge out looking not at the possession we're looking at the delivery word and in fact there's there's remained whether mr don't want us conviction constituted illicit trafficking not good trafficking probabilistic trafficking as a matter of law it should apply the categorical approach described above assuming the least culpable conduct under the statute asking whether it would necessarily be considered in a list of trafficking offense punishable as a felony by the controlled substance act believe that's the state o thank you other grant we can give you ten days to file a supplemental brief for responding to the twenty eight day letter and will give the government ten days after that to file reply thank you so much