offense the proper test the supreme court has told us in the united states versus lopez is whether the regulated activity has a quote unquote substantial effect on interstate i thought the proper test is that there are only needs to be a de minimus effect on interstate commerce and that the congress is exercising its power to regulate activities which as a whole substantially affect interstate commerce but that for rico case you don't need to have an allegation or proof that the rico conspiracy itself substantially affects interstate commerce so tell me why i'm wrong well for starters you enterprise was the rolling thirty's crips and alleged street gang who evidently acquired firearms presumably in interstate commerce and then would also rob interstate or subway restaurants and other required for the individual predicate acts now certainly in juvenile male the enterprise the rolling thirty scripts in that case that enterprise it could fairly be said would have a substantial impact on interstate commerce and if you grant that premise then that individual acts i would concede would only need to require a de minimus impact so when you when you have the enterprise to provide substantial effect the individual predicates require only a de minimus impact now that's my argument of how we should read juvenal mail in order to harmonize that or to be faithful to the locus teaching but i would acknowledge that there are some broader language than that in in the juvenile male decision to the extent that we read juvenal male to say that just because the rico statute or because the rico statute purportedly is pointed at interstate activity then both the enterprise and the individual acts need only have a de minimus impact that i think is simply mistaken and we should narrow or we should hold juvenile male to its facts because that that's contrary both to the rico statute as well as to locals but you know i mean isn't that something that if we ruled against you i mean isn't that something that might have to be directed to an end bank court or to the supreme court well we certainly would if we needed to cross that bridge but i think that this court could could hold it to its facts or could hold it to the narrowest holding the that one could read into juvenile male which is is given the enterprise's activities that i think are beyond dispute involved interstate commerce the individual predicates need only be de minimus so i think it could be held to those parameters i was starting to address the rico statute i think it's just erroneous to for for for us to suggest that the rico statute itself creates enough of a nexus that even the facts of the case only have to provide an in a miss nexus what i mean by that is rico by its own terms deals with enterprises that are either engaged in or that a fact interstate commerce notably missing there is substantially affect interstate commerce now if that was in the statute in a jury was properly instructed that that's what you have to find to convict then i would agree that that is a valid jurisdictional hook and a meaningful element of the offense that  would serve as some sort of buffer or some sort of limit to federal power however in this case you have simply a fact interstate commerce is the jurisdictional hook without that substantial language and then in what makes that worse and i think was borne out predicates need to have no impact at all and so that that i think is it is quite far afield from the argument that rico in itself that the way the statute is drafted is some sort of  included language saying that the jury should be instructed as to either in waged in interstate commerce under the proper test what we argue is the proper test under the robertson case and then secondly substantially affects interstate commerce but you were your rule twenty  arguing that there wasn't evidence of knowledge and so forth and there was a colloquy with the district court where i said your honor right i don't want the court to interpret my focusing on the knowledge prong as to the exclusion of our commerce clause arguments and in the rule twenty nine i just didn't want to continue to bang that drum after the court has ruled in the courts and i accept that so we did expressively incorporate our prior commerce clause litigation into that is commerce and that still has to carry some meaning in order for us to to circumscribe federal law well there were allegations in the indictment that the supreme court had contracts with vendors outside the state of california there were allegations that there were federal program benefits received by the superior court i don't think this was alleged but obviously the people who had their convictions more than satisfied both by what was alleged and what was approved well i would beg to differ fruit for this reason the the case law as i understand it requires not necessarily proving an actual concrete impact i would certainly grant that but there still has to be either a probable the words or probable or potential impact on interstate commerce not not sort of in the abstract but as applied to the actual facts of the case now  argument is that if the government is leaning on a subscription to west law or a subscription to word go to to microsoft word that combined with money that was received from the federal government for an entirely unrelated drug diversion program that sort of speaks volumes i would argue in terms of the minimal impact and the less than the minimal impact that the offense had i would argue that it a that i think two answers as to frigga the st is that it is somewhat downstream from what i sort of cheekily described as patient zero with juvenile males so it didn't really dig into whether the enterprise plus the individual acts have to  together substantially affect commerce but even if we set that aside there's still the issue of jury instructions and i don't know that the that the fry get opinion reveals what the jury instructions are it may i just honestly don't remember as i stand instructions for for the commerce clause but there are also other jury instructions that we took issue with one was a jewel instruction or a deliberate ignorance instruction that in our view it is an unprecedented extension of this deliberately ignorant stock or and the to the very complex and and i use the word byzantine requirements and that a rico statute imposes on the government in terms of proving knowledge and info no the seminal jewel case jewel itself to force was a fairly by neary analysis of knowledge you know the the person know what was in the trunk or not know what was in a trunk in in a boy her but us and it in that fact pattern although that the defense bar hop the good fight i'm loss the it it make sense that you know a few deliberately don't look in the trunk then that that can be a substitute for knowledge but let's and you know let's make no mistake though that this is constructive knowledge at something different then an actual no knowledge lied over or a that a substitute as i say for a knowledge the problem with that here is twofold st the things that one has to know under the rico statute goes so far beyond that by neary choice you know border bus a tastes are in an in a simple drug case that it allows the government the opportunity to use jewel for easily a half a dozen things that a defendant has to know that that was fundamentally a still it should case i mean it was you know the it was a boat that was being brought up the coast yeah and it was the fact really not unlike jewel did did the person know that there was drugs in the boat or not know that there was drugs in the boat now i can see that that does you know that that does do violence to the to the argument that there should be a categorical bar of using jewel in a specific intent case that's true but i still say that that's a far cry from having a jewel instruction in a rico case in rico a defendant has to know the essential nature and scope of the alleged enterprise they have to know that some person has something to do with the operation and management of the enterprise they have to know what their common purpose and what their shared goal is and on and on there's that they have to know that there will be at least two predicate acts in the general nature of those acts either the ones that are alleged in the indictment or some other ones that the jury may flip did the government have to prove this to knowledge in this case i'm sorry on why did the government have to prove as to knowledge in this case each of those things i mean those are typically facts the specific facts you know well it would have been then i guess as applied to the facts of the case would have to know not just that the superior court was an enterprise but the essential scope and nature of the illegality and i think there's a difference of opinion there between the government and the defense the government would argue that all you have to know is that the superior court i suppose exists and that it's an enterprise and that it does superior court things i don't think that's consistent with our case law well i mean but what the jury was instructed is the government had to prove that the defendant joining the conspiracy and knowing of its objective to conduct participate directly in the conduct of the affairs of the superior court or a pattern of racketeering racketeering activity and tempting to join with at least one other person in that regard right so so that's true those are things the government has to prove as to knowledge in addition to about instructions with regard to interstate commerce yes where is that in your in the blue brief the instructions on interstate commerce where is your argument you've made as to objecting raising as an issue the instructions with regard to the interstate commentary instructions with regard to the interstate commerce element i see i've got three seconds and because i don't have it on my fingertips if the court would allow me to stand up and give that citation after the allegations asked interstate commerce as well as deficiency of the evidence and i think there's essentially two cases that make this analysis foreclosed st and this was a case that i don't think in detail address in the earlier segment was the supreme court case in robertson so there's essentially two prongs and the government provided evidence as well as alleged both that the spirit court was engaged in commerce as well as that it had to diminish its impact on interstate palmers and roberson is squarely on point it's a rico case in that case like our enterprise here there was an entity a legal entity that was engaging hundred so this is an issue that's been largely resolved frigo but it's almost a very similar case going difference being that in that case the corrupt actor was judges in this case it was a clerk and the findings there should for close any challenge that's raised now relate to the commerce clause i'd like to turn to the deliberate ignorance instruction argument that was presented i think as a general matter it's important to kind of back up and take a view to it should apply the same general principle should apply and this court's holding in ramos of tondo and nicholson also forclose as a general matter challenges to deliberately ignorance instructions and conspiracies i think it's clear there's no debate the issue at trial was whether the defendant actually believed in a turn and an attorney was legitimately resolving cases or was there a corrupt employee behind it that was the only issue with respect to the rico conspiracy and i would submit our primary argument was not the deliberating or is our primary argument was that the defendant actual knowledge there was ample evidence for the jury to found that and we'd submit that the jury did about the essential nature and scope of the enterprise i think this is there is some confusion a lot about what that reference is to we would say that that reference comes up in the th circuit case and there are valid sufficiency of the evidence that's from bomber into different decisions where the question is whether there was sufficient evidence of the knowingly joining the criminal conspiracy and again that language is not particular to rico enterprises it's talking about the criminal enterprise or joining the criminal conspiracy and looking at the deliberate ignorance destruction specifically we would submit ramos aton to the nicholson or support the government's position claim was that perhaps illegal aliens were aboard a painter boat and now marijuana is charged and the government asked for instruction at the liberty interest about the drugs being on the boat nicholson similarly there was a claim that the defendant thought the venture was legitimate but no not related to drug trafficking and both cases the court held that there was no error and that deliberate in its destruction was appropriate that's exactly what we had here we had a claim from the defendant that he believed it was a legitimate transaction when he was taking funds but in fact there was a cop employed on it and that's what the instruction addressed in any event the reading of the instruction makes it clear that there was no prejudice because that defense was still able to be raised at the end of the instruction and stated that if a jury found and actually believed that the defendant actually believed that  immigration application part of this seems scheme as bribery and conspiracy but the actual false statement may not be part of the same scheme but the the proof of the false statement so here that the false statements or one that he committed a violation of state law when he paid a bribe for his own ticket and he falsely stated in the immigration application that he never committed a crime so to prove that false statement we would necessarily have to prove that the entire  in the nd false statement was related to this september two thousand and fifteen interview with the f b i we also provided false statements and there was a false name in the naturalization application related to that statement so to prove up the false statements  raised after the pretrial hearings and with good reason there is the court requires advantage to raise that again to allow the district courts to do some sort of weighing in evaluating the evidence as it comes in but even if it's i didn't want to provide a square answer to his honest question the short answer is that we did not raise the commerce clause instructions as a standalone assignment of error and the slightly longer answer is that we did describe it in the procedural posture of the case  page thirteen of the a b of the blue brief but i also think that there's two ways in which the court could consider the failure to give the instruction that we requested the st is simply as a rebuttal to the argument that the rico statute in itself serves to provide a meaningful jurisdictional limit on court's power because it's then if we if we look to the particulars of the jury instruction that was given i think that's  rebuttal to that argument but then also more concretely we also raised a cumulative error at the end of our brief which of course includes both errors raised in the brief in those not raised in the brief so i think in either of those contexts that's something that the court co