afternoon many pleased the court to let her sit down saw the famous john lennon case and in that case one of the things that the court noted is that subsequent conduct in regards to the law can be relevant and the state of hawaii voter registration form is freely available on the internet and for the convenience of the court i have downloaded several copies which are the free ticket to feel happy to give to the clerk after my argument and provide i thought he to the government's consul in the record at page thirty three there was a newspaper article where the state of hawaii that they were aware of the problem that occurred as a result of cases like mrs macdonald's and in the current voter registration form which came out in june two thousand and four besides being a bigger print on the magic three questions it has a warning in large print really carefully mark appropriate yes or no and signed below that wasn't present on the for done then but i would just like to point out that not only did they put the warning i just read on the form that's in the record for mrs macdonald item  qualify now in light of the immigration judge as comment on mrs macdonald's level of education and that she was able to answer complicated questions correctly well rather than just the simple i mean us citizen which i will submit is a term of art proof before the immigration judge that your client is opposed to should credence that it was clear to him and it's clear to me i'm trying to make clear in my own mind there is a difference between do and shouldn't know correct absolutely your  e to vote i would say that there was no proof other than the fact if you were to say the form was clear and it was before and she signed it and then you got down to the question admit that was an issue i wasn't too clear on in my queries was a let me through the fourth i'm semi literate in model penal code and i goes back the first year criminal law all five says there are three types of elements to a crime there is conduct which in this case was voting that mrs macdonald knowingly  vote of course fact intended that we have no trouble with that element to attend the condition not eligible to vote now that's where we have the issue and we say perhaps she was negligent probably not but that perhaps reckless but not knowing now the third possible element in a pointing i said what crying i think i committed a crime just possessing it in this particular building but that goes to the result of the conduct for voting knowingly voting she did and if she knowingly was aware that she wasn't allowed to vote the crime was complete there was no result required now why is this important the practically certain language quoted by the judge emphasized in the government's brief applies only to the result so what we have here was the judge the immigration  answer that is if by looking at what mrs macdonald did and said herself and i ain't also went through the records as carefully as i could to compare only thing i could think of to do and if we want to look at her testimony regarding the time she votes and what what she believed was the case at that time i have to look at page one sixty three of uses of the transcript and this is mcdonald's testimony counsel ask so at this time you knew you were not a citizen yes ok but you thought you couldn't vote yes even though you're not a citizen yes and then the council asked about these three separate requirements to add up to eligibility to vote now an element on the back of the card under the heading attention voter it says to be eligible to vote those was ok and on the next page it continues you thought you could vote even though you were not a citizen yes so to try to get back in answer to your question well the book this in context said yes i'm a u s citizen her testimony was that she received the form from the elections department why and on this one after talking it over with her husband told them no i'm not a citizen and send it back in the cent back a voter registration card that was her testimony was that that was a testimony the problem that i want to point out with that particular little aspect of the case is that referring to what she called a yellow postcard that came in the mail and that she and her husband say they checked they talk to and they said well we're not quite sure and checked off not a status and the petitioner herself in the record exercise discretion as to when the when not to prosecute you in the immigration department ever exercise discretion well you don't have to follow up on everything  persecuting somebody you made an innocent mistake you say living up to the law well now your honor very reasonable or very discretionary well i understand the result is  the term citizen illegal for sure and the government expects everybody to understand which is me well it without a lawyer even though there may be an educated i think we can argue about you know whether she knowingly voted in violation of the statute that's a different question mrs macdonald testified she knew she was not a status and a year later she filed an application to naturalize i mean these advance coincided with her going from being a conditional resident to being a legal permanent resident and then you know taking on her own initiative question the way things work in immigration court it isn't the equivalent of the us attorneys who determine whether to file charges or not it is the enforcement agency and then the u s attorneys have to  one that's almost one circuit where that's different and that's the second circuit were assistant u s attorneys to deal with these cases and decide which ones should go forward which one should you consult with mr friedman if she has no objection you are considering the form then you can give it to the court and deputy if she has an objection it's not part of the record we just assume not so i believe that you can consult with her in the