one that cyan to has the critical mind separating guilt innocent behavior constitutional and unconstitutional statutes yet the jury instructions here defining willfulness as merely acting with a bad purpose to break the law and adding a conscious avoidance charge to boot turned a highly technical regulatory regime into a virtual dragnet for reckless or grossly negligent defendants and the effect of that is this raising the same notice and vagueness concerns that a heighten mens rea requirement is said to eliminate and i would suggest to the court that if there were ever a picture of the hyper technical statute that requires this sort of heightened mens rea requirement the a t c a and the i tara know it's alphabet soup is that and you might have read the opening brief and wondered about the need for the first point and why there was so much detail munitions well that that's a great point your honor what are we selling we're selling a blade of materials that are not necessarily or inherently malign that an ordinary person and mark henry is no kim jong moon as your honour's of undoubtedly gleaned from the record this is a man who's operating out of a apartment a living room in flushing queens and you can glean from the record that he's hapless he's harried and not the most sophisticated the prototype arms dealer and we collected all the cases where but i don't see how you can claim that he didn't have any notice that that that  some material was subject to a license because the the warning came from the seller and it was in all capital well it's not so much notice your honor it's the standard of knowledge required by the jury instructions and more fundamentally required by the congress that drafted the statute so amir now is if the know it that it's exactly listed he just has to know that it's illegal to do it me that's what the court charged under the bryan standard that's what that's what the instructions said he has but this is just like like the analog drug statute in securities law you don't have to know the exact s e c regulation  violating you just have to know that the conduct wrongful and in many times your the way you behave in events is that like instructing the supplier to to mislabel the packaging with regard that it might raise some problems well sir to be fair we haven't contested the sufficiency the evidence and all what were the right you haven't and so and so you don't like the way congress is structured it but it's not a constitutional violation that it be just wrongful conduct as opposed to a specific knowledge of conduct that this was a doctor that this was listed on some executive board or the list of the says requiring a license but i don't like the way congress is structured the statute that i don't like the way congress does a lot of things but i'm stuck with it and so are you well here's the thing i don't like the way they structured and what they did to prevent a finding of unconstitutionality on delegation grounds is included at the same time a heightened statute or the f c c statute and brings us into the realm of rats laugh and cheek will stand right but there are different as we outlined in the brief there's there's certainly different meanings of willfulness and it's the most one of the more slippery concepts in the law and we already have a precedent on point from our circuit which is smith and they held they analyzed what the jury instructions were for the a t c a sorry about the acronyms and they said the appropriate definition of willfulness is not that you have to know the precise chapter and verse of where in the statute the ablative materials is i grant you that but what you do have to know is that the particular and the jury has to be instructed that th particular item going to the particular place required a license and that you intended to have export it without a license the jury was not told that here what it was told in contrast was that general knowledge that it was unlawful  requirement was watered down even further by the inclusion of a conscious avoidance charge so it's a two fold problem so the conscious avoidance charge didn't even require so much as actual knowledge of the legality that is and  places for those so we're not contesting that there is a factual basis for giving the charge what we're contesting is two things conceptually it goes to knowledge as opposed to intent well that's another  it was charged willfulness by the definitions here has a knowledge and an intent component and it's sort of black letter law in our circuit that conscious avoidance is not a proxy for intent so the way it was charged the judge made it a proxy for both but that's sort of a sub issue conceptually when you have the sort of willfulness requirement that we contend is an issue here which is a heightened men right mens rea a standard that requires knowledge of the necessity for an export license for this particular item ablative materials to china to taiwan i should say there was an acquittal on the first charge that is logically incompatible with the notion of a conscious avoidance charge for this type this type of heightened  the first thing and the second thing is that the charges given was linguistically incorrect for all the reasons a numerated in the briefs so it's a conceptual problem more than a factual predicate for the charge problem yes you're claiming that the willfulness charge was such that he could have been convicted for arranging tax evasion among other things and we spelled out i mean we went through the defense theory in in some detail and if you look on page forty two of our opening brief this is what the defense said in summation that henry quote had some general awareness of export licensing but never knew that these particular products actually needed a license to go to taiwan and we're quoting from t fifty six there well under that defense theory he's guilty under the charge as given and that charge has given understates the willfulness require an amendment and the knowledge that's necessary to convict under the statute so on she effectively charged the defense out of the case and what's unusual about this especially is is there is the precedent of smith that is squarely on point and they held in school in smith this court did that what we're talking about knowledge of the licensing requirement that he needed a license to export this particular product is not only a sufficient charge but an appropriate charge in a e c a context and that's because this area and i grant you the people who are going to be dealing in this stuff aren't babes in the woods granted you that but you are using your client even the words and then even a babe in the living room if in the living room but here's the thing there's lots of conduct in our society that falls into a gray area and it's not inherently illegal to engage in gray area conduct so you have to look at in this case what the substances we're not talking about a k forty seven so we're not talking about ammunition we're not talking about something that any anybody off the street including a sophisticated deer would obviously know is a bad news discharge be sufficient if it was a gay forty seven well if we had a k forty seven i don't think the charge would be sufficient but it would undoubtedly be an academic or harmless error type issue because anybody knows what that is a blade of materials and thanks to ms graham the government at trial sort of mocked the idea that anybody could gets get this off the internet and he had to be sophisticated well we just typed in a google search and the suppl was the first search result returned so this this is a different beast because of the nature of the material and the nature of the defendant so in this case it was i contend and i think the case is show it it was but it was also decided before cheap in rats laugh so it's six in one half a dozen of the other that's it those about whether the whether they were the jury charge was sufficient as it was necessary it said it was sufficient and it said it was reading of those charges makes it clear that the jury could not have convicted on any theory of negligence or recklessness the charges actually given that did require did require knowledge of the elements  that knowledge is required for under the statute the jury was instructed that the defendant had to know that his conduct was unlawful and that he had to have the intent to do something that the law forbade him to do why would  been possible for the jury to convict him based on the fact that he knew darn well what he was engaged in with his tax evasion though the charges given i don't immediately after the instruction on willfulness the court then delivered the instruction on conscious avoidance and instructed the jury that you could not convict the defendant if he actually believed that exporting the ablative material without a license was lawful i think it's pretty clear to the jury that we're talking about exports on the united states law and not about tax law and taiwan i think it's also clear from the fact just the nature of the proof or the nature of the defenses there was never any argument made to the jury by the government that an intent to violate a foreign tax law would be sufficient to convict here this evidence in this argument was all about his knowledge and his knowing conduct an export and these materials on lawfully  and there's there's no there's really no notice issue here either i think the court the questions of heated on the head this isn't about whether the u s and written large can take you a long time to read it's about what notice this defendant had his conduct in exporting these military items was unlawful we're talking about an ablative material that is specifically designed for use in missile aerospace technology we're talking about an ablative material that on document after document the distributed warrant of the defendant that an export requires a license from the department of defense which is a slight misattribution of the correct licensing agency but puts the defendant on notice that this is a defense related  material the evidence show that the defendant discussed the licensing requirement with his overseas customer he was informed by his overseas customer that this is being purchased for a foreign military there's numerous examples of using companies and false names disguising the freight forwarder with another shell company to disguise this is going to be exported there's all sorts of evidence that this was an export violation and that he knew that and the jury was appropriately instructed about about the willfulness element of that offense the trial not aware of any support for that proposition and in fact a lot of rights that the defendant is entitled to waive a trial or otherwise are conditioned and require the approval and supervision of the cords to approve that waiver and there are two aspects of the use the interpreter here first i think it's apparent that the district court has to have some discretion the statute commits discretion to the presiding judicial officer about whether to approve a waiver the case law is clear the defendant's trial rights including the right to testify in his own behalf is subject to qualification by the rules of evidence and other rules and there is an ample basis for the district court to have decided that the use of an interpreter was appropriate to ensure that the trial was fair to ensure that the defendant would fully understand the proceedings especially given his counsel's acknowledgement that the defendant's facility with english though good was not good enough to avoid misunderstandings the defendant was afforded the right to testify with an interpreter on a standby basis so that he could testify in english although he did on occasion use the interpreter i think giving road to this question of the interpreter was there any description to the jury of how or why it interpreted with the news there was an instruction given to the jury about the use of an interpreter it was a brief instruction  instructions described in brian against united states apply here that the charge accorded with that decision the answer to both of those questions is yes so brian involved another licensing situation where as the court described at the trial there was ample evidence from the defendant's conduct that the defendant knew that dealing in firearms was unlawful the defendant used straw purchasers there was filing off of serial numbers and other efforts to falsify the items at issue but apparently no evidence about the defendant's belief about why dealing in the firearms was lawful and the supreme court held that the willfulness element doesn't require that and as this court has explained i think in george the willfulness the requirement is to distinguish innocent conduct from culpable conduct this co typically applies the standard of willfulness that is at the minimum required to distinguish those two types of conduct and knowledge that somebody is engaged in conduct that is unlawful is sufficient to protect the innocent and to convict the guilty matter most constitutional rights the point is that there was no basis for overriding the waiver here because the only reason articulated was his purported difficulties with the english language well contrary to what my friend just said he testified at great length in english without significant incident first of all second of all there was resort now and then to the interpreter well that only points up the failure to consider any alternatives one of which was having an interpreter on standby which is exactly what occurred during the course of his testimony so we're not the court doesn't need to reach the issue of whether there's an absolute right because we're not we're not pressing that claim at all it's just that if you what is the crime you're proceeding on that score well they claim would be analogous to the rejection of a waiver say of a conflict an attorney conflict in the denial of conflict of choice which is why the iowa case and you know you they say rightly i'm pulling out some case from iowa it's a pretty novel issue in the case was the rationale anyway was stunningly on point because it was exactly what i was thinking of from  n lopez this is about autonomy and the defendant's right to chart his own course because when he goes to prison he asked and i've said this before before this court he's the person who has to sit there for six and a half years and put his head down at night and absent the decisions that are exclusively reserved to his defense lawyer he's got to be able to put his head down there at night and say i i did what i wanted to do i presented the defense the way that i wanted and it didn't work and i'm going to pay the price for  case there isn't it's a structural error a conventional prejudice analysis would never work in a case like this for two reasons structural or absolute right no no no the point is judge if the waiver is iranian slee overridden then it's a per se reversible error so there's to the the question is whether the judge was correct to refuse to let him to waive the interpreter or even to consider a standby if there's a finding that that's error then it's per se reversible because you're denying the right of autonomy more than fairness in the sixth amendment in this context like like right if you waive the right to counsel you're probably going to do a pretty lousy job on your defense and the trial is going to be less fair but the supreme court says we're not talking about fairness in this context we're talking about autonomy and self determination and that value is intangible in a measurable so you get a person a reversal if the defendant is forbidding from going forward pro se and that's the line of cases that's manifest