given by march judge mark tone is that the charge against the defendant is that he entered and was found on march fourth two thousand and four the final jury instructions given by judge mark tone was that the jury can only convict if the jury found that he entered and was found on march fourth two thousand and four the form of the verdict was that the defendant was found guilty or brienne tree after deportation as charged in the indictment that's whatsoever the fellow was deported back in one thousand nine hundred five he's got a series of petty offenses between ninety five and two thousand and four which is a period of nine years it's very possible that this stuff probable even that this defendant went was not presented with any evidence of when how where the defendant we entered the united states after being deported in one thousand nine hundred five i would comment on the case cited by the government griffin versus united states it's in one thousand nine hundred one case in the supreme court there there was one charge of fraud conspiracy with two objects namely that the individual defrauded two separate agencies i r s and d n a and one of those agencies did show up the other did but the instructions there were that the jury was allowed to can convict if that's found her to have participated in either one of the two objects of the conspiracy here the case w submitted to the jury on an all or nothing basis that you must find that he entered and was found both on march fourth two thousand and four the jury instructions were quite different in those two cases and here the end occasioned by the form  verdict is that they found him guilty of reactionary and the and that the government presented didn't even try to present any evidence of when where how are the circumstances or date or time of his as i say it's most probable there were many re entries people in mexico do that quite often they go home to visit relatives for holidays come back and each one of those are separate lives i would also like to pass on to my second argument which is the question of whether he could be found in the united states on march fourth two thousand and four your honour's this case is different from all the president's i think it's a case of first impression where the  discovery of the individual his name and birth date were entirely separate from the discovery of his status as we've reported phelim you'll recall that he was identified in the sense that ins then for an l t r five fifty one form which is called the green card even though it's not green they found there was no indication at that point in time that he was reported to tell and quite to the contrary the fishbowl the officer of the official was a pete wilson who issued a certification i certify based on all of a vailable information that the applicant is entitled to the immigration document for which the application has been made that's  pages eighty three and eighty five and it's stamped or printed name of the official pete wilson signature of the official pete wilson so the indication is the evidence is that they he was not a den of fide as a deported fell on his status or lack of status in the united states was not discovered for many months we don't even know when we know he was arrested when he was working in wal mart where he had been working for four years approximately according to the pre sentence report  about discovered and adana fide what that phrase means is that his status is discovered and identified not just the persona or his body so to speak or his date of birth but the fact that he is a deported felon that's what starts the statute of limitations clock ticking or the calendar better ticking if if an immigration officer let's say he passes someone on the street and you know they deported felon says hello officer smith and three days later agent smith says you know that's the guy deported two years ago every everyone who's charged with this could claim that you know he was found in the united states just because  he talked to some immigration person or had some contact with an immigration person in some way shape or form our point is the government did not prove that he was found on march fourth two thousand and four as charged simply because he was not his staff this was not discovered until we don't really know but probably close to the time they arrested him at wal mart which was two or three months later not anywhere on  about march fourth two thousand and four i would also like to briefly mention my last argument which is that under the supreme court precedents anything act that increases the possible maximum statutory sentence must be submitted to the jury the fact that was not submitted to this jury was whether the deportation was quote unquote subsequent to an aggravated felony so as to put him and be to as opposed to section any the the matter of fact that was not submitted was the time relation between the deportation and the prior aggravated felony and we agree that those facts do appear on the record the jury found that he was deported on march that he was found march fourth two thousand and four even though we claim that's an error and the fact of the date of the deport of the aggravated felony is one of those things that appears on the piece of paper the judgment and commitment however the jury is the conscience of the community every fact must be submitted to a jury even though it's couldn't be more obvious in fact this trial was as a judge mar describes re entry trials there are a long form change of plea there really isn't much much decided in the main case either i mean the guy sitting here next i did try the case but usually he's sitting there next to me and the agent shows deportation papers and what else you're going say that tomorrow and subsequent to today juries are the conscience of the community they exercise independent judgments they reach verdicts that we don't always understand but that's the system and then they decide well you know this guy's had enough why should we aggravate a sentence we're not going to do it and they have no right to do that but juries do they do do that and you know we sit back and try to figure out what the heck these folks have done but that's the system that's a constitutional right it does not depend upon prejudice it does not depend there's no such thing as summary judgments or direction verdicts in criminal cases and what the judge has done is essentially direct a verdict on the question of the time the relation of time between two things even though i agree with you your honor it's obvious as heck but still theory has the right to do it or the defendant has the right to have a jury pass on that all right i'll reserve fifty eight seconds affirmed for the following two reasons first the government met its burden of proof when it proved that the defendant or appellant was found in the united states on or about march fourth two thousand and four and to the chronological sequence of two known dates in this case the date of deportation which was proven to the jury and the date of the prior conviction which was evident from the face of the conviction document to the chronological order of those two dates is not a proper matter to be submitted to the jury with regard to the found in on march fourth this court has never held that there are two elements being found that is being physically encountered by immigration officials and having the full knowledge and found that that was satisfactory and that indictment was upheld and so implicit in that holding is that it is not required that the ins have a full understanding of the defendant's status to qualify as being found in the united states even if this court were to go forward and to hold that there is this sort of two element aspect to being found in the indictment charges on or about march fourth and in this case the defendant presented himself to the immigration officials on march fourth two thousand and four under his true name and so the immigration officials knew he was here and on march eleventh two thousand and four which was only a week later and the criminal complaint which clearly at least by march of last only a week after physically discovering the defendant the immigration officials were aware that he was an illegal alien because they had to provide enough to do that supporting probable cause to issue an arrest warrant  employee who processed the independence application testified in excerpts of record pages thirty two and thirty three that when she included his name and i based it came up that's what it's called and it's a red flag that indicates that there is something all right with an individual status and that is turned over to the investigator within the organization to confirm whether or not there really is a problem with the in status so that is why he was turned away on that date and asked to return on march eleventh after found the defendant on may twenty first so it's unclear whether that means that he couldn't find him physically again because he had left the facility or whether he was continue to do follow up work on the status but clearly there was probable cause on march eleventh statute provides for sentencing and has meant when an alien excuse me when an alien's removal is subsequent to a conviction and then sections b one provides for certain kinds of crimes and b two for aggravated felonies in this case judge march the sentencing judge had to have found that the conviction in this case the cocaine sale conviction was a prior conviction because for purposes of sentencing jansma it must fall prior to the elements of the offense so in this case it wasn't just marco noted it is imbedded in the fact of finding a prior conviction that the judge needs to take note of the date of the conviction which is evident from the face of the conviction and then whether or not that falls chronologically prior to turn around with a one thousand nine hundred five date and one thousand nine hundred today and ask the jury to determine the chronological order simply makes no sense the judge is perfectly equipped to take this will notice of the chronological order of two known dates and is permitted to do so under  are just like to point out that the criminal complaint was not presented to the jury and what the government is asking the court to do is go outside the records of matters presented to the jury the criminal complaint was not presented an evidence it's something that's in the file yes but as far as this jury knew and the evidence presented the only evidence was that he was found and arrested on way way after march march fourth so we would object to any consideration of items not present