in this case is a six year old man with no prior criminal history who is now facing over eight years in federal prison and likely deportation because he possessed a bolt action twenty two dollars caliber rifle in gun safe in his garage or under mr gere was tried and convicted by a jury but he was tried and convicted before the supreme court issued its opinion or hayes and as a result the jury did not make a complete a finding in this case in fact the jury was instructed explicitly to the contrary as action for an innocent person does not legally excuse the charge of sense grounds that we are seeking in this case is a new trial remand for a new trial where both sides will have the opportunity to present evidence and argument on the rave knowledge elements make a complete finding of guilt or not so what counsel what's the the knowledge on with that needs to be proven by the jury your honor i think that is there's a threshold dispute here between us and the government on that question i think different circuits have taken slightly different approaches in our view the best approach is what the nd circuit initially specified involving the  defendant is required to know that he or she is in a prohibited category so that is what we think on a new trial the jury would be instructed that it must so find beyond a reasonable time i'm asking is the standard of review clear air you know i our position is the standard reviews of ordinary air but even if the government is correct that it should be plain area we think reversal is still warranted  non immigrant why isn't that enough why isn't that enough to establish that there d was no clear air dried i would say one thing that's important remember here is that we are not raising an infinity of evidence claim there and you're absolutely correct that there is some evidence in the record supporting a finding other element but the question is whether it is overwhelming uncontested and i think the answer is no and here's here's why it but even assuming the government is correct the knowledge requirement for a hafe would mean that mr you had to be he had set i don't you agree there has to be a reasonable probability that it would have been different so you take a look at all the evidence that was presented am i wrong i don't think that reasonable probability is the standard that this court has let me draw this out of it what the court said in johnson again that was a felon in possession so a different different case in the immigration cases where the court said johnson is in that case the defendant was in prison for three years so it's absolutely  plausible argument that he wouldn't have known he was a felon and the court specifically said and quoting the supreme court opinion or even solomon said this would be different if for example he'd only received a probationary sentence because someone who only received a probationary sentence might have a and here there is no question that his plan was to immigrate and he switched to abuse of that as a dual intent fisa is a visa that allows someone to express and intend to remain in the country and that is in fact what he intended to do there is some kind of ambiguity in that i think the difference between our position of the government's position is a difference in how we interpret the ambiguity you have to just know the status or the prohibition i think the nd circuit in the th circuit a fault on one side of that the th as the government pointed out last we going to twenty j the other side we are going to say i don't think it makes any difference to the end result because i think the knowledge that he had not even going to be that highly technical term of immigration law was not overwhelming or uncontroverted that what that was i'm sorry that's what the and that's defined by law and if you follow the process of getting to what a non immigrant visa is there's a definition for alien there's not a definition or not immigrant person that definition or  is going to be remitted and that we were to agree with you that there had to be for the nonimmigrant visa wouldn't that have to be the find this to what that is your honor i agree with you one hundred percent that it is a mishmash and it's very complicated which is precisely our point here and that is why it's a plausible argument he might not have known and yes i think what the jury would be instructed would simply be to mirror the language of the statute government must prove at a minimum year and a day that's pretty simple that i have to not have a grand visa card need a lot of different things which is precisely there's a reasonable probability that mr gear was mistaken about show that he would offer that he didn't have the knowledge so we're looking at the record sufficient evidence or not but again and again your honor it's not a question of insufficiency under jackson versus virginia it is a question of whether the a minute element was proven by overwhelming uncontroverted evidence that is the standard that applies here and we don't think the record has been we think there is the record even the existing record where mr jurist precluded from sending evidence the contrary is a possible basis for a contrary finding well that's what he was planning to emigrate he started a business here d he got married to american citizen he was planning and hoping to remain in the united states permanently and i think that by itself provides some plausible basis where someone might say i thought i was now here on a nonmember i was your immigrant status to think this is what the this is it back to what you you know the th circuit's recent decision in johnson i think what the court expressed there is st of all it's not just the trial record it's the record as a whole because obviously if there's evidence that's been excluded you may take that into account as it it's a judgment call about whether there's a possible basis and someone who has been in prison for three years obviously knew he was a felon whereas for example someone who was on probation might have made a mistake about that fact and that's exactly it's a judgment call whether there's d a possible our opinions and i think here there is precisely given the fact that mr year was indeed hoping and planning to immigrate switch to a dual intent visas for that purpose cancel out the question if we agree with you that the disco substantial question on appeal that he was not a danger or a flight risk so mr bure mr gear has been granted bail pending his appeal so let me ask you this though can you give me a case where and where the standard on appeal was clear air  honor i would just distinguish between i think there's maybe two different analytical questions one is the question of whether there's deference owed to the district court's findings which there isn't on plain every view for an instructional mistake and the  question is what is the standard review in terms of addressing the error itself plain errors to those i think are slightly different and the concepts are so we're not i think it's not the ordinary approach the th circuit is not when doing player review even though it think there is some confusion i'd like to clear up mr sampson sense that has changed the position that they've written in their briefs and in their briefs they argue now if you're going to gallop he needs to be proven i'm hearing that i think you should focus on the knowledge of status ok so i think the st of all i'd like to say is i think this is dan still has mischaracterized what judge will wait held so and her order denying because you have for a short period of time or because he didn't know his ex wife was going to standards you up had nothing to do with his knowledge of stacked so why was it by arguing that doesn't that preserve the error though i don't see how the i'm circuit law at the time precluded it and so by raising and then you know not wasting the court's resources to just to argue over a good issue that's been clear when i started why is that not enough to preserve it on appeal like except for a plane or on the route fifty two  unless he required no as a matter of law what that means i think you have to dig down and get granular because there's no real definition of a nonimmigrant if you have to go through all the machinations to get there and then what are you would get in this particular case is that type of nonimmigrant p lease i e have was an h one b so back swap and looking at i mean the jury instruction has to be clear that as it is based upon the facts so you agree with me that nonimmigrant visa may not be enough and that was reported to give guidance to a trial court in the future assuming that and we hold a district court we need to say something about what is required in the instruction to the jury and not and more than a nonimmigrant visa meaning the particular kind of beast and  merely possessed machine gun they have to know some of the details so i think again you know the bends disappeared no other people judge more waves ruling so that really is not my understanding as  i had to put in the testimony regarding the document the other testimony about this knowledge is also true well me what makes a big not a great views that is that there's an expiration date you have to leave the country it's really just really having a problem with your argument there and i'm a grain away or thank you and i'm not that you know i'm unclear on this and that's why i'm asking that very model and may well have been correct that whether that even though you look at exhibit forty three it shows he is traveling all over africa the testimony from is why it was he was traveling all over france who were on the riverbank or do you agree that the district court found that if if that the governor's position is right that they have you know you have just an issue on appeal just as she also said she didn't think he was going to win and that it was a non frivolous issue in terms of the standard bail pending appeal and they don't so how is that plain or if she thinks that it's that it's possible he went as well as it's argument and let me clarify one thing about having a testimony is that some of the most important of it she did not say mr year helped him on the application if you read your seventy two dollars eleven cents that is not what she testified to and she repeatedly testified that she does not understand immigration law she nonimmigrant visa your honor i still don't know if it's very complicated and i think that's again the kind of prove the point yes it's hard to prove and that's ok congress can amend the statute to want to make it easier to prove someone clarify what the elements are but the elements right now under a party had to know that it was an immigrant visa and i do not think the evidence is i mean our position is that is preserved other than one sort of fertility doctor and even under the plan here i do not think that is medicare and your honor my last thing i would say is i really think rape is very close to employing in part because it's an immigrant case the facts are very close them point if you look at not only rape but the decisions on remand it is almost on all fours in this case and repave the trial court ultimately applying the correct legal standard granted a new trial even though the proffer conceded there is substantial evidence the government's favor but it is up to the jury to determine this and that is what we are requesting he is facing a major sanction for a relatively minor offense all we are requesting is a jury verdict on elements of the offen