first the trial before the magistrate judge in the district court so the fourth the magistrate judge there was no argument about intent requirement so that isn't that right there there that was just simply not raised at you raised this sufficiency issue you said there was insufficient information about our evidence to establish his intent is am i right not only was there insufficient evidence but i am i right that that's what you argued to the district court that's one of the issues we argued to the just what was the other one beyond the fact that there was insufficient evidence we also argued that the trial court found made findings that were contrary to the verdict so the trial court found ok and in the in the sentencing part of the hearing and saying well not only in the sentencing part your honor which i think is notable but also earlier at the time of the trial after the parties had submitted all their evidence the trial court found that mr centers believed that his tank was empty and the basis for that belief was credible and very logical and i think that that really is the linchpin here that let me just before you go on to your argument just one more step which is now before us you're saying there was some sort of legal error about th to make specific findings is not in error unless there was a request for those findings under for federal rule of criminal procedure twenty three c so is this issue of findings even before us it wasn't raised to the district court and are we really just looking at your sufficiency argument that you made to the district court so i'm just trying to understand exactly what the claims are before as  waived i understand your honor the government argues that there was a general finding of guilt and rule twenty three does state that a court must set forth its findings either earlier in writing upon request of a party here or there wasn't a request by the party however the m so so that's i'm trying to understand what is the legal error and what was raised to the district court like sufficiency of the evidence i understand here your honor is that the trial court found this is the binder fact in this case found mr center did not know he had sewage on board and then found where where where is that finding that's it except to record to fourteen it's a sentencing and no your honor that was at the time of trial the court after it except all the evidence but wire to the closing argument made a series of oral findings and one of those oral findings was mr stener credibly and logically believed that his tank was empty and his basis for that belief ok so let me go on here magistrate judge also found that your client violated section client was negligent or reckless that he he believed he didn't have sewage on board but he did and he opened up the tank and dumped it why doesn't that end the issue well your honor i think that's a difficult thin conflated by the fact that we're trying to get what we have to assume there was sufficient evidence to support the two ports before for conviction i mean there is there's plenty of evidence in this record to support your client's defense at trial was it wasn't me it was some other guy  the judge says no no it was you you may not have believed that you had sewage in your tank but you opened it up the open up the tank to empty whatever was in there and that violates two point three four a four and therefore you had the rea why do we have to worry about whether there's a men's wear requirement for two point one four eight well your honor first of all i don't think the court made a finding that he opened up his tank the court made a finding that he didn't know he had sewage on board stating that your client was the least amount of mens rea are required to keep can to violate two point three four a four right well i think that the decision not that your argument is not i think that's part of my argument but the basis of the argument is that if the court made a finding the court did make a finding that he didn't know john board and he was stopping for the reason he asserted during his trial testimony the court then could not find that he consciously disregarded a risk of creating a physically opinion indicates that the court has no reasonable doubt that defendant caused earle out the subject is charge of human waste in yosemite national park so in the written opinion he makes his pretty clear he finds that your client is guilty under those two regulations and so you're talking about things he said in the course of the trial is m i'm understanding that correctly and actually talking about the combination of all the comments he made so his oral findings at trial but also he has commentary within the written memorandum that conflicts with his finding and his commentary and sensing within the written memorandum which is an excerpt of record fifty six he says the witnesses rightly or wrongly believe that center had emptied his trailer's toilet waste out of the pavement and he's writing that in his memorandum opinion he's still questioning whether or not the witnesses perception of what happened is what happened he's not sure what happened here in fact but i sense it's findings framed by the defense as it was presented and here's how it's presented there are two reasonable conclusions this is defense counsel that mr center was in the wrong place at the wrong time or the mr center dumped the sewage that was the issue at trial it wasn't what was he thinking it was this is a whodunit you got the wrong guy all the findings are based on that defense when he he does keep referring to mr center one who dumped and yes he doesn't go into the detail and he intended to do so but he was never being asked to make that finding we were i think that his findings are based on the totality of the record at trial and all the defense asserted the defense that that it was a misidentification here mr apologize that the trial court did find i realize i'm low on time i'd like to finish answering your question though also reserving some time for a bottle but what the trial court found based on all of the evidence that was presented was  of these offenses or you just arguing that the judge made inconsistent findings mark my argument is twofold one that the evidence is insufficient the only evidence that would go to intent is the evidence of flight and that under blank why isn't that sufficient well going through all of these steps if in fact this image came out from the truck which is what the judge found he would have had to go through all these steps to release this i don't see why that would be sufficient to show until he testified on direct examination that that's the process the ordinary course of disposal of waste from this truck but he also testified on cross examination that there is a tank underneath and that there is a valve that can be released no one would remember the question is whether there's some evidence from which a reasonable find your client did did this with some intent and surely there's sufficient evidence in this record particularly since your client's defense was it wasn't me it must have been somebody else because it can only come out of what he said was it can only come out if you if you take all the steps and i didn't take any of these steps and so it must have been somebody else's r v and the judge found as a matter of fact no no it was yours you did find beyond a reasonable doubt that the sewage emanated from the r v but in that same breath you found that mr center was not you didn't know he was engaging in this regulated regulated activity of dealing with human waste and that undermines the verdict of guilty in its entirety it's a prerequisite element of and even strict liability offenses that we find that the defendant knew they were engaged in the regulated activity and so that the trial court engaged in error under any standard finding them tell you over your time i will give you a minute for rebuttal thank you very much  good morning your honors ross pearson for the united states the issue in this case was that the judge struggled with was motive and not the defendant's intent and the best evidence that this judge found that the defendant intentionally discharged the sewage was from his written opinion judge stated on three separate occasions in the written opinion your fifty nine defendant center discharge waste from his r v at your sixty the court had no reasonable doubt that defendant caused or allowed the subject discharge of human waste and then again at your sixty one the defendant was indeed the one who created the condition now center highlights these two straight remarks that the judge made at sentencing that this might have been accidental not intended but in the greater context the judge there was struggling with the motive were arguably inconsistent well what's the effect of statements made during sentencing your honor i believe the defendant's position is that these should undermine the verdict because they show that the judge applied the wrong standard it's our position that these are harmless errors that they're simply straight remarks because they relate to the motive not whether the defendant actually intentionally committed this of so you don't have any case law that helps us understand whether statements at sentencing have an effect on  guilt phase of a trial no ok and the judge even at sentencing remain convinced beyond a reasonable doubt that the defendant was the one who committed this offense and he stated that over and over now this panel has touched on an important issue which is that there is no argument there is no evidence that the defendant might have done this accidentally the arguments presented to the trial were that either the defendant did this you pulled over to the side of the road and dumped in septic tank intentionally off or that this was just a misidentification that the witnesses and that the rangers sped up and caught him and simply pointed to the wrong person the question judge you could ask before there was no request for finding criminal rule but the judge did issue a written order if a judge does that even absent request must the judge cover all the elements of the offense and the order your honor i believe that the judge didn't cover the elements in this case and the judge listed the specific findings that related to the elements of recklessness it correctly stated under two hundred two point three four a four right the judge didn't make any specific findings with respect to mention these numbers two point one for that no your honor he did it and that's one of the issues here is that the judge wasn't on notice that this was disputed that he had to find whether there was an intent requirement or whether this was a strict liability offense and the sitting here today is the issue before us whether there is sufficient evidence sufficiency of the evidence like a real twenty nine that taking the evidence in the light most favorable to the prosecution are we sitting here and there was a legal error because the magi strate judge failed to make specific findings and if the latter was that raised to the district judge the issue of the specific findings was not raised i believe that this judge is reviewing for sufficiency of the sorry this court is reviewing f sufficiency of the evidence here and that was the defendant's argument at trial it was the argument to the district court it's the same argument here and the reason that argument fails is because the court found at the very least that center committed this offense recklessly for two point three four and indeed i believe that the court was implicitly except in the government's argument that senate knowingly committed this fence when he pulled over and dumped a septic tank and then drove off if he had accepted standards argument center's position was that this simply didn't happen that if you had been the one who dumped this tank there would have been sewage splattered on cider sujan his wheels and so do you except then opposing counsel's argument that two p one four is at least a general untanned offense no your honor if the court decides to reach that is you'd still our position that this is simply an offense that doesn't have an end and that's because it falls closer to cases where the courts found no mens rea than one's word has so the ones that have mens rea are resisting arrest allowing livestock to enter on the land or committing a fire to spread and in each of those cases there's a condition the defendant has to be aware of so for resisting arrest the defendant has to first know he's been arrested before he can fight back for permitting a fire to spread the defendant has to know that there's a fire that started to get beyond his control and then consciously decide not to do anything to stop it in this case on the other hand disposal is simply an action it's just there's no condition the defendant has to be aware of so if it's a strict liability offense in your view that if the  the valve came off accidentally it was driving of his black water tank that would be sufficient to convict him under two point one four is that the the government's position yes your honor you know what case support your position your honor it would be comparing it to sears kent or wilson all of which are at least offenses that don't require mens rea here and there is no case to dead interprets this particular provision no your honor and it would be a step beyond sears and the accidental conduct or that the lack of an act intentionally done could violate that statute but it's still consistent with the intent of congress when it passed this when it omitted the mens rea and w used language that deals soley action not in terms of this mental component allision but again our position is that the court doesn't even need to go that far that the magistrate judge when it said that defendant center discharged ways from  his written opinion or that defendant was indeed the one who created this condition was finding it was accepting the government's argument and finding that center intentionally caused this the sewage to spill in the context of the trial where the the argument was that it wasn't me it was an alibi was somebody else did it his saying that he did it meant that it was intentional is that your position yes your honor ok and the comments made at sentencing i think need to be read in context and the context is that the judge wasn't sure why senate would have done this they shouldn't these two straight remarks often comments undermine the judge's verdict which expressed over and over beyond a reasonable doubt that senator was the one who committed this offense your colleague says that the judge also made which he calls a finding at trial i'm trying to search through the record to find it but did it occur when the judge said i'm going to give you some preliminary thoughts and then you and i didn't look it's i mean difficulty finding a finding so what the judge said was that there was some evidence of innocence and that the defendant's explanation as to why he believed his septic tank was empty seemed credible and that scene in the very next paragraph the judge said that he was struggling with the defendant's motive pretty consistent theme here the judge also said that in his written opinion at your sixty that he had questions as to center its credibility and so well center its explanation of out of sound of credibility this is far from a fine in that sense it was actually credible and that when he stated that he didn't know that the septic tank was empty that that was actually what was in his head the factors the court highlighted at your sixty show that considered that center considered center it's explanation but simply rejected it that it found the two witnesses more credible than the fact that the witnesses saw the sewage flowing from underneath the r v to be especially important i'm looking at the judge before in his oral he said i i can think of no reasonable explanation and therefore no evidence that would provide any reasonable explanation that any reasonable per could except that would explain how this fecal matter including what has been so eloquently referred to as fecal logs could be flowing down the road unless it was being released at the time it was flowing so the judge makes a specific finding that it orally that it was being released i don't i don't find a finding that you know it has to be released has to be some intent in releasing it doesn't right and there was no specific fine and i'm intent our argument is that it can be why he was certain his safety concerns his concerns about the warranty protection all seem quite credible and very logical this is a finding that the court made after submission of all of the evidence in the case and any finding i'm going to put isn't that where the judge said look i'm going to i'm going back to two or nine i'm going to give you some preliminary thoughts so they gave those thoughts and then he says at the end of that long colloquy none of these are findings yet i haven't made a final decision i want to give you this preliminary thought so you can shape your arguments around them so i'm having difficulty viewing that as a finding of fact by the judge we are he makes the statement that these are credible and logical and nothing he says subsequent to that none of his want you to focus on in your arguments how can that be a finding where i think it's semantics whether or not the judge is referring to his findings as thoughts or finding themselves and when he says i haven't made a final decision he's indicating that he hasn't yet rendered a verdict but those are still findings nonetheless says to the extent you can i may i may have those points to the extent you can add anything else that i should consider that you'll help me make what i hope will be the right decision in this case so he's actually soliciting how how can we characterize you know would you do we penalize a judge for saying here's what i think but i'm not sure i'm right which is what it basically said so now when your arguments try to convince me one way or the other how does that become a fine the judge makes a series of findings but indicates that he has not yet decided how those findings apply to the construction of the regulation he's giving us an opportunity to apply those findings to that construction which is what we did we attempted to explain to the judge that even in light of th sufficiently satisfy you never said you never said to that judge at any point by the way judge one critical issue is whether or not you can find assuming that our defense that our guy didn't do it fails we need to find that he intended to do it no but that that's why i believe we would prevail here even under a clear air standard it is clear air for the court to fly in the face of all of american jurisprudence by to spend a prerequisite element that the defendant knew they were engaged  unlawful act or in the regulated activity what the government is advocating for here is a form of strict liability we have never applied and all of the supreme court precedent the president cites here from the ninth circuit even those cases it discusses like wilson and sears those cases don't dispense with the requirement the defendant knows they're engaging in the activity the court didn't even have to reach that issue because by virtue of cutting timber you know you're cutting timber by virtue of camping you know you're camping but those cases they did reach that issue in the supreme court like international minerals and chemical corporation were staples specifically state that at the minimum even under a strict liability construction you have to know you're engaging in the activities wrap up your overtime and with that i would just say that under any standard of review here we would