we have filed briefs covering a number of issues i'm going to i'll answer any questions obviously that the court would have of me i'm going to primarily cover to specific issues as i don't in the briefs so this is a case involving in  seventy three u s fish and wildlife service easement that did not include include a contemporaneous map of what areas were covered by these meant nor was there any written agreement as to what areas within the parcel were covered by the agreement there was no as in other cases where there is a contemporaneous map which controls there wasn't in this particular case there was no indication within the easement of what was covered other than the plain wording peters they couldn't find the map and peter's but is cracked now peterson at the time that was heard there had been a great deal of evidence that peterson had previously been convicted he knew the c admitted he knew these areas were covered by the case and this there was none of that record before the court as to what was going to be the standard for what those were what areas would be covered and the u s supreme court in north dakota and this court  johansen indicated conclusively that is not the entire parcel that's covered owsley you put more emphasis on the prior conviction than i rate in our opinion our opinion spend a lot of a lot of time on this on the sufficiency of the evidence the government presented without a map correct you haven't you want to kind of push that aside say well he had a prior conviction that what was a challenge you know there was more than just the conviction obviously there was a what's what's the difference in the evidence here and in peterson well the difference in the evidence here is that what the government used to determine what they presented in court over our objection was an aerial photo  that was used in a computer program which was completed by we had objected to her testimony not being disclosing it but the evidence here is the evidence here i question is what was what what was in the evidence in peterson that made it legally sufficient for the district court in our court that the government didn't replicate in this case isn't that isn't that your sufficient i assume you're on the sufficiency issue here i am your honor what two issues with that but that's the well i know you have an i know you have an evidentiary aspect to it and i will i'm talking about sufficiency now and sufficiency was clearly considered and conviction affirmed in peterson's based on a this on a careful discussion of the evidence the abbott government says we did the same thing here if that's true you better move on to another issue if it's not true say why well in the peterson case that the court held the district court determined and a circuit it approved as i read the case that it was there was a signed map and that because of that peterson was a stop from denying certain wetland areas because he had previous violations for the respect of those areas that the court opinion says the map couldn't be found i ate i agree with that but there was wasn't happening it was not in evidence i think he peterson acknowledged that there had been a map and he knew that those areas way it was vastly different at the time you know what the court in johansen had determined that they have to specify which specific areas and then peterson that was set out and there was evidence which specified which areas there wasn't other than the maps thirty years after the easement which was made by emily fischer who they entered boost as a lay witness who was actually an expert to she talked this case there was only the map from two thousand and ten which was in a way of aerial photos that had been all but one taken after nine hundred seventy three there was testimony at the trial and mast through agent as year and through two drainage contractors that there had been additional water drained onto mast from properties outside the easement those were not naturally occurring those were never take into account by emily fisher anyone would with the u fish and wildlife service as testified in this case and yet they used that map to produce the only evidence they had to the jury of what areas were covered by the easement and therefore which areas had been damaged by the summarized in our opinion that the four he had studied the four year before the easement photo and opined that the wetlands would not have changed in that forty year period now that's that is specific evidence be relied on and then he'll hang in his in his experience wetlands don't change much so it must have been the same in seventy three that's what i that's what i am for the government's efficiency argument was that is correct  contract required the the easement itself required surface waters are naturally recurring surface waters which s p did not look at and did not take into consideration and he admitted that in his testimony that he had looked at these photos most of them well after the easement was entered into and the two thousand and ten map was in a ray of that was and did not consider the other issues as to the areas on the them it isn't just wetlands it has to be those specific that specific wetland description which then has to be tied to specific property to get the scope of predated yes and then he had later photos over the next thirty or forty years correct and he and each was his testimony that looking at the whole series including the one the smith he could estimate or give an opinion about which areas were covered that the gist of it that's the gist of it what he more precisely said used the map to justify the areas of the map was what he focused his testimony if you said that the photos were consistent with the math for vice versa he relied on family fisher who did the drawing up to create the map so he did testify that he had looked at some but not all of the aerial photos he had looked at the map and two thousand and ten and then went back to look at the photos if they matched up with the two thousand and ted map drawing i missed one when was the earliest photo he looked at  before nine hundred seventy three i believe it was in the fifty's in in the late fifty's one of the brief says there was a photo of property from september of one nine hundred seventy two think that could be right that could be right that there was one aerial photo of the guy you know my recollection was that was earlier than that but that was the only one and that photo showed one wetland area with water surface water on it no other indication there was any surface water or that there had previously been any surface water all the other aerial photos and the ones that showed surface water in addition to wetlands three were very recent in years after any subsequent drainage that occurred off site of that property and we have argued that that the fish and wildlife should be held to its manual that they have set out what the standard is which they did not follow in this case and which they objected to in the district court did not allow to be presented in evidence what i was going to address the instructions i understand it allows the jury to choose either knowingly or otherwise violated the government entered  lesser included the lesser included the original instructions for the count what's your argument what's wrong with the instruction the government talks about that it's that the second lesser included didn't have intentional and tensional requirement and then act as if that's a strict liability and actually in peterson which was the lesser included offense charged an initially not knowing in that particular case both the district court and a circuit approved that there was six elements and the lesser included in peterson which included a knowing we asked i asked well how can that be if the statute says and knowing violation gets one penalty and otherwise violated gets a lesser penalty how can the otherwise violated have knowing is irrelevant then there would be no difference that's what they did in peterson but did but didn't if you look deeply didn't peterson rely on johansen which was a case that predated this f one f two distinction correct i think that is correct so so  sum and so i wonder if johansen was talking about knowing as the statute a riginal really read and for whatever reason peterson adopted that even after it had been divided out so i guess that ca into question how much we can rely on peterson for that particular issue as i repeat hours and it was not a direct issue at peterson that was raised what we know from reading the case is that they did require knowing our they did allow knowing us that element on the lesser included what was the lesser included and master that after two what do you think it should be but do you think the lesser included element that we argued to the district court as to kerner which was a district court case where the court looked at the legislative history determined one has intentional one doesn't have an intentional but there there's no indication that congress explicitly required a strict are was seeking a strict liability offense or you haven't answered the question what do you think the element should be we argued knowingly or or other in the alternative that it would be  of neglect that connor held that the defendant the government had to show that the defendant in karner at least negligently allowed his cattle onto the refuge system that's an answer you think it's a negligent standard can or that's what i can or yes and there's a case but that held that unreasonable risk of injuring what i got from your brief correct that it but it was unreasonable and then me to stand reasonably that's your argument you don't want to read served my last two and a half minutes and did the district court explain why that that alternative was rejected the district court did just reject that it did not and i think based on the reading of the statute which doesn't have the knowing requirement on the lesser included morning your honour's geoff clapper on behalf of the united states here this morning asking the court to affirm the district court's decisions and the verdict and all the issues raised by mr mast i think what's important to a question i guess is is under the under the applicable statutes does fish and wildlife have a civil remedy that would result in an obligation to restore they probably do i'm not certain of that yes so and that's that's basically the criminal the criminal penalty imposed here so we're to and we're talking about fish and wildlife being able to damages damages his standing in many ways by up with the criminal prosecution to get a remedy that they could have gotten with the civil enforcement  i'm just setting that setting the table here and that i understand your honor and i will admit this was the first type of case of this nature that i handled i understand the fish and wildlife sometimes can handle or issue citations to landowners that they find in violation as a petty offense i'm also aware of cases in our office where we've handled them on a civil matter but this one in particular due to the nature of mr mast receiving notice from our from fish and wildlife after in two thousand and ten that he shouldn't disturb any of the wetlands on his property and then he went and did it afterwards anyway in two thousand and thirteen that was the basis for charging him under the knowing provision of the statute well given his reliance on another agenc unreasonably risking injury if in fact he established that he was relying on what was well then c r s he believed in c r s it said he could do and i think that's exactly why the jury issued the verdict that they did for the lesser have to require anything on the strict liability well they still had to show that he there were easement on the property that he did and that he damaged them have regulatory statutes read that way i understand that and so they've said we shouldn't do that we should interpret it that way unless there is congressional intent to do so and i cited in our brief notes from the looking around for your friends i am not sure that the creation of the split fence was it was reflection intent that the supreme court would agree was a strict liability in other words no m rea required at all and yet the district court out summarily rejected a eight a an alternative that was lesser than knowing and i'm probably i understand that your honor but  the district court's job is to accurately instruct the jury on the law that's how the law reads there's either a knowing offense or there's all others that's how it reads she instructed the jury properly on that did she summarily reject the instruction or did she discuss it i don't remember your honor i'm sorry there was a lot of discussion on the instructions because there was more of an issue on the didn't knowingly do it maybe because of this letter from the other agency but did the strict they did find the strictly as you describe it well if that if we were to determine that it's not a strict liability crime the then in your view it's not harmless that right from what you've said correct there's sufficient evidence whatever standard the court would create  instruct district courts to and to give instructions to juries on the lesser offense there is sufficient evidence to cover that oh i thought you said there were it would not be harmless because you sort of acknowledged that  e jury there well must have said he didn't knowingly do it he didn't have and intention to do this based on this reliance on a letter from another agency in your response to a previous question so i wondered if you thought then it's not a harmless error problem here i think it is harmless error based on the evidence in the case that whatever other standard even under a negligent standard if the would impose that this evidence would be sufficient to meet that burden as well placed efficiencies different from harmless to say it's harmless would have to say any reasonable jury would have found it negligent if it were a jury question negligence then they wouldn't be harmless but it would he wouldn't be entitled to an acquittal either he'd have to be retried isn't that right i think so your honor i've well did you see any statute with this bifurcation or the otherwise violates language that have been read to me negligence or have been read to mean not negligence you finally i wanted to go over there what do you think the mc the letter you're talking about that from the other agency what are you saying about that letter that you think i'm sure that possibly influence the jury if you recall the jury instructions there was an entrapment by a stoppel instruction given that was the defendant's defense that he basically had authority from some the reason we disputed that if you read the exhibit in the letter is even though the letter says you can do this it still says it's subject to other easements and you need to check with fish and wildlife service before you proceed further the defendant did not do 's why i say even with a negligent standard if the court were imposed that we would the evidence would support a conviction even under those circumstances port it wouldn't have to be retried i'm not sure i don't know the answer judge i'm sorry i think though it would not have to be retried is if you could say the evidence was so strong that it was harmless the omission of the element was harmless under netter and that  i guess it would depend on how the court decided the lesser included offense should be instructed to the jury and i you know i don't know all i know is how the court did it the district court in this case they removed one of the six elements and made it down to five and that's what the jury convicted on and there's sufficient evidence to support that conviction now mr masse received it at a year of probation cracked correct but if i'm correct and the f two carries one hundred eighty days in jail yes and a potential fine you didn't get fined it's a term of probation that he restored the property and that was his only conditions other than whatever standard probation conditions or might be and i think there was a ten dollar special assessment based on the class a misdemeanor that it was i wanted to touch on the first issue that came up here as to the evidence that came in because i think there's a misconception about what it was what is important is the statement from mike d they came up is that wetlands areas are persistent over time forget the map look at the evidence in the case here and what mr estey testified to as he showed much closer to his testimony in peter's yes within months but not only that mr estey testified as to photographs there that are exhibit sixty six through seventy back as far as one nine hundred forty fifty one fifty two sixty four in one nine hundred seventy and there was also exhibit fifty one which is one nine hundred fifty six he looked at all of those prior to the easement and he showed the jury that evidence of this seven wetland areas on the master property that had existed consistently and persistently up and through the time of the and ten that was just a basis of looking at other photographs many of which were after the easement but it goes to the same principle wetland areas are persistent over time and it was the same seven areas that were persistent over time before months before and after and those are and six of them because there was one that was very large and he didn't attempt to drain that but six of them he did he put drain tile in and and drain the water from conduct broader than just having the tylers come in no it was just the tylers understand tile tile graeme's yes that was that was its purpose and it was effective the testimony from the tile installers one was a soon as we hooked it up you could see water coming out i mean it was that effective and i believe at sentencing i offered a exhibit i didn't offer to trial but offered it at sentencing and i'm in those areas many of them have been plowed over the union in maybe instruction that the parties agreed to how do you link that if there is if the jury does just have to to to agree unanimously on one wetland area and yet the restoration award is as i understand it and you can tell me if i'm wrong as for the entire parcel how does that link you're correct judge should the restoration order was for the entire parcel so for all affected wetland areas and as i understand the law the court can order that to the parse as it relates to the conviction so this conviction was fo disturbing and violating the statute disturbing the federal government's property interests you think that stays within the huey boundaries for that restitution is limited to the i agreed but this all were on the one tract of land but what about the fact that we don't know whether the jury found that he disturbed one or all six you think the court can then make a finding that he disturbed all six even though we don't know what the jury did yes no six the memory problem with that well i don't believe there is one and the defense hasn't pointed one out either your honor i'd liken it to many of the cases that i deal with in the child pornography world the jury can convict of one even though the defendant has a thousand the court takes notice of the evidence presented at trial and makes a sentencing decision based on that evidence not on the jury's finding well that's for the guidelines though that's not a restitution issue that's true i agree with that in this case there is evidence the same thing happened to all six affected wetland areas the exact same thing there is no difference the but the question is whether you needed to get a verdict on all six in order to get restitution for all six or whether you can get an ambiguous verdict that was one or more and then get restitution for all six right so in this particular case since they were all you know instructed properly on the unanimity instruction that they all had to agree on at least one there was no request by defendants to specify which one  practical to say you could restore one wetland area and not another or are they connected in some way if you look at the map in the brief that we provided areas one and two are connected that's kind of a separate drainage system and then the four five six and seven those are all connected so it's really two separate areas so could you as a practical matter go in and restore five and and just alone and leave six and seven alone even though really there are there are connected but some you couldn't some you could not because they are in a  continuation of the same drain tile line that then exit out of the property so the ones upstream if you will that are up the line could be but you couldn't just do the bottom one ones up line drain into that refresh me on the juries required role in restitution i thought i'm not sure is there is there a right to a jury trial no other questions my time's about oh by thank you and again ask for a firm and on all the issues opinion that peterson did he did not own the property originally he farmed it there's a dispute over what areas were covered by the easement it was renegotiated between peterson and fish and wildlife he later then purchased the property and then the evidence showed that he then impacted injured those wetland areas with drainage activity after that reno negotiated maps they found that was sufficient evidence there wasn't and mass case he had never talked with fish and wildlife he wasn't aware about the the two thousand and ten map that was presented at any time through the process until he started working with the received the approval letter from the n r c yes that he could drain and he went out and drained subject to the limitations and in that under the manual in the guidelines as required for the u s d a to fall under the act regulations and we do disagree with the government asked to the restitution in this case with the unanimous issue with the instructions all we know was that the jury was required at least one parcel we've cited cases that the court can't order restitution unless it stems from the actual conviction that the jury found that as if i was principal what's what's the jury's role in in the in applying that i just asked for a case that to what we were government said he was the it wasn't counsel says not a not aware of what i wanted to know if you were i'm not aware that there's a case that requires the jury to make  restitution decision just that the court cannot order restitution that doesn't follow from a specific finding of guilt by the jury only did find they found him guilty under the instructions which w the jury you need to find at least one you need to find at least one and the requirement is that they had to restore all six and they could each and every wetland on the property be restored end