the district court aired in two respects first aired tonight mr sullivan is motion for judgment of acquittal because the underlying state predicate attempted sexual assault when the victim question is a fictitious minor is not a crime in puerto rico secondly the district court erred in failing to deliver jury instructions regarding all elements of the predicate see defense when it instructed the jury twenty four twenty two b s criminal sexual activity cou now later on if this person possesses a firearm even an attempted possession of a firearm if that conviction is non existent on that person's record the federal government here will not charge one hundred twenty two shey one attempt or in its completed form argument is attempt or not it's twenty four twenty to be congress has decided to leave that fourth element to the state and it is required to be an actionable see predicate and we would also suggest that our plane reading of article one thirty of the state of the sexual assault statute in puerto rico this is sort of a context of this article in puerto rican strength to our interpretation some form of sexual assault in puerto rico has existed for over one hundred years in the common despite this long history of this particular article there are no reported puerto rico cases dealing with sexual assault when the victim is a fictitious minor and it wouldn't because we're back to the i mean if you go to that while he right that's exactly what i'm doing i'm trying to violate that statute now in fact we know his effort to violate the statute couldn't succeed in having a violation of the statute because under no it's him the something would be fashion possible might be something murder where you go and believe the person's sleeping in their bed and you go into their bed and shoot multiple times and they're not in their bed but you still that was an unknown struct to you and you still attempted to murder the person furtherance of twenty four twenty two b there's simply not an actionable predicate the government could have chosen any other predicate on which to charge mr sauls i'm going to get it selected something that congress has determined to leave up to the state selected article one thirty and congress has decided in drafting twenty four twenty two b to leave that fourth element to give voice to the commonwealth an important article one thirty attempt or not is not charged when there is not an actual who is under the age in the last fifteen years this contemplates the dawn of the internet age and of online sexual crimes yet notwithstanding article one thirty has remained intact throughout these dreams or visions the puerto rico legislature has chosen to leave the language of puerto rico article one thirty as it is there's been no amendments to say that whether the victim was under sixteen or the defendant believed here she was under sixteen as other state legislatures have amended their underlying predicates or their no if the facts were is your client believe that your client believed he was talking to a sixteen year old and if he had carried through on his attempt successfully that would have violated the court records no you don't and that is that is argument for the court even if you had completed the time if at all times the alleged victim was in fact an undercover agent my question is if the facts were as your client believed them to be not if the facts were as they were you might believe it was a sixteen year old right yes if if your client had been right and he had successfully enticed her into engaging in sex and he was right that she was sixteen we got a flat out violation of the court been are you aware of any case what's your best case that would say that if someone makes an attempt to take steps in furtherance of that attempt and had they been able to complete it and the facts then as they believe them to be they would have been guilty of a lot of parents would never less not be a crime because the facts were other was enough so as to render it not an offense substance ok i believe the best cases cited in our brief which is hicks vs commonwealth in the eighth circuit also undertook that analysis in herrick's the defense means that it's a single case from virginia and the defendant me the same argument the difference in that case is that the virginia supreme court determined that because you believed that the minor was under the age that was an actionable offense in virginia there is no cite in puerto rico case dealing with this issue and that we believe strengthen across the room they see a person who is twenty three years old but they think the person is sixteen and then they go and they solicit sex with a person is that a violation  actually impossible crimes be that as it may the government maintains that we need not even look at puerto rico law for this purpose because the attempt provision in this case relates to twenty four twenty two and not puerto rico with actual minors but also those individuals that target what turned out to be undercover agents there is a party subjective intent was to have sex with a minor i think it's interesting you feel reluctant to buy in the need of those examples but we're having done having trouble hearing you distinguish those examples from and i believe what the attempted is used with relation to bank robbery i'm not i'm familiar with that as to any distinction between attempt to rob a bank and  the reference and i'm sorry i don't have the pages but i think one of the greats made a suggestion that there are some federal statutes that refer to conduct directed towards assumed minors like sexual activity that could have been charged under state law the it does not look to state law for purposes of defining attempt as that term is used for purposes twenty four twenty two  and given that your honor likewise the legal defenses to federal crimes are established by federal law and here it is understood the factual impossibility defined in general terms so that can then be attached or tagged to the rest of the substance or to crimes across the board and the criminal code that is why it's more broadly defined rather than a specific interpret these sorts of statutes across the board by their plain language and no no further if nothing is required i also wanted to address it as question about the federal bank robbery example that's not a federal crime an attempt to rob something that's it's not a federal bank is not a federal crime for example i don't know the exact elements of federal bank robbery but one of them would be that it's an f b i see insured bank and if the government cannot prove that element beyond reasonable doubt whether in the attempt or in the completed action then the crime is not committed what i'm talking not it's the government who has to prove each and every element beyond a reasonable doubt and when the fourth element is not actionable as article one thirty is not an actual say predicate attempts or not the government has not proven the case and that is what happened  the court that a ruling in this case that article one thirty in this limited finding marriage finishes when it's fictitious minor and undercover agent does not prohibit the government from charging article one thirty as the underlying predicate in cases where there is an actual minor nor does it prohibit the government from charging other predicate offenses the government just has to go back to the drawing board and find an action