erred by denying mr ramirez nunez's motion to dismiss based on the statute of limitations and in litigating this motion below the parties of proceeded on and basically an agreed upon record and that record showed that mr ramirez nunez reentered the united states on december seventh two thousand and six more than five years before the indictment was filed here and that he did so openly rather than surreptitiously and this   immigration authorities with his real name as reflected in his california driver's license as opposed to using an alias at a has occurred in some of the other thirteen twenty six cases and finally that driver's license of the state issued driver's license was itself valid as is under spirted and thus doesn't fall into the category of specious documentation usually an invalid green card invalid but authentic green card and this court has held in hernandez which was the venue case that a section thirteen twenty six offense ends and in that case was purposes of where but here it's for purposes of protection or border patrol which is an office within c b p all of that knowledge present at the time he reactor in two thousand and six now even have a case in our circuit called mendez and in a foot no it talked about a situation like this one where the defendant got in through the border station because he returned before the government could put his name in the database of deported to remove individuals then he stayed in the u s for three years he didn't get caught until he saw the security clearance from customs service and then the question there is whether he was well it is it is distinguishable and in two senses first that he on the facts of this case and as you know the immigration authorities which does include ice which does include border patrol had all the information and also this court hasn't had occasion to rule on the issue of constructive knowledge so even if that doesn't rise to the level of constructive knowledge actual knowledge it does constitute constructive knowledge as to his presidents and identity and putting that together to for the government to know that mr ramirez knew us was not only here but that his presence here was unlawful  and this court has asked you know as to which party bears the burden on constructive knowledge and you know we would submit that based on the supreme court's decision a mo government does and that's for two reasons first of all generally the government bears the burden of showing compliance with the statute of limitations at least when the defendants put that in to put that issue into play which is clearly occurred here and it makes sense more generally because typically the party with access to better knowledge on the issue bears that burden and here as to constructive knowledge which goes to you know what policies were in place at the border what screening because you know practices or training occurred what the file keeping look like back in two thousand and six with the computer capabilities were the government is far better position than a defendant an alien as to present those facts to the court and he in the district court the government presented some facts of those nature of that nature  namely that it would be quote highly unusual for the deportation order itself to be in the computer day at data base at the border within twenty four hours however it did not proffer anything else to is actual file and furthermore a person is typically not deported overnight it did not say that if the name had been run or questions had been asked that it wouldn't have flagged him as a person you know with an immigration detainer or war and or as someone who had been put into proceedings very recently it also did not even say that that that question had been asked as to his authority to enter rather it mostly says you know it's very busy at these ports of entries there's a lot of pressure to process people efficiently which doesn't really establish diligence  when it comes to constructive knowledge you know due diligence is what one would reasonably expect of law enforcement and you know that i think at a bare minimum would be asking someone for their authority to enter and there's no indication on this record and there was no dispute as to that the government proceeded on that proffer that that even  occurred so if there are no further questions i would reserve the remainder i don't have any further questions but if you could take a look at that and i think it's footnote  twenty if i recall correctly amend this and come back up and you'll be helpful to tell us how we can grapple with the identity of the facts presented in that case and the statement that the alien would found when he entered at the border business that would be found later how we can distinguish that language yes your honor thank you good morning may it please the court katherine richmond on behalf of the united states the district court was correct to deny defendant's motion to dismiss under binding ninth circuit precedent it was also correct to reject adopting out of circuit non binding precedent especially when defendant even with the adoption of that case law would still lose on the facts more specifically it was correct that xemu deo was dispositive because the movie zero held that a defendant presenting himself and his true name on an official government document at the border did not give authorities knowledge either actual or constructive of defendant's presence without notice authorities had not found defendant in the united states and therefore the statute of limitations did not begin to r here the same facts defendant was removed he presented himself at a point of entry and he also presented border authorities with his true name on an official government document  presenting yourself and your true name on an official government document does not give authorities knowledge either actual words and constructive to establish a found an offense were found and means the discover successful deception should not be awarded that is it should not empower a defendant to later avoid prosecution under the theory that despite his deception the government should have known better but most importantly your hono leo is the finding standard in this circuit the inquiry is actual knowledge and in this case order authorities did not have actual knowledge of defendants presence when he presented himself at the border and his california li government something your honor i have a two part answer to that question the first part is that under xemu to go and jose and other cases in the circuit the inquiry is really on whether the government had the information and the means to know the defendant was an alien and zamudio clearly held that presenting oneself at the border and presenting an official travel document with a true name is insufficient for that to impart actual knowledge or even constructive knowledge to bord authorities to get to the courts actual question about whether it needs to find deception i don't think it does for that reason but in these circumstances i think there was a deceptive nature about the way defendant presented himself he came presenting official whether his presentation of that documentation imparted knowledge of the border thorough these and understood moody oh the answer is no it does not merely presenting an identification even with one's true name does not impart knowledge for constructive knowledge your honor that is not the law in this case to be ken with and even if the court wishes to entertain adopting that standard this is not the vehicle to accept that standard because defendant still on the facts here xemu d o although it applied actual knowledge analyzed constructive knowledge as well and held that xemu deo would have lost because the government had neither the information nor the mean to track down defendants illegal status and that was because after the defendant presented his green card at the border he took it with him thereby depriving the government of information to later used to standard investigative techniques to determine whether he was an and here we have the same facts defendant presented his id but he took it with him when he left and understood moody oh that's a deprivation of information the government can later used to follow up on whether the person who presented it themselves at the border was an alien and indeed the declaration submitted by the c v officer said that even if the border patrol officer had run his name through a database the information would not have even been in the database to determine whether the defendant was in fact in the end i'd like to address the standard of review it seems that the court is interested in that your honor it's the government's position that there is a two part burden shifting standard of review excuse me burden of proof first if he gains with the defendant presenting a prime facie case by the preponderance of an of the evidence typically as under bailey when a defendant presents an affirmative evidence the original burden although it is from a facial and by a preponderance of the evidence is on the defendant was the defendant has established as prime aphasia case the burden and then ships of the government to prove or rebut beyond a reasonable doubt that the government is incorrect i believe that the cases are somewhat confusing the cases are confusing because typically after a defendant presents by preponderance his affirmative defense the burden shifts to the government which is where the analysis usually focuses that's where the meat of the case is so when cases like  i'd also like to address the santiago which was raised both in the court below and here de santiago is factually dissimilar and several important respects including that defendant applied in a one month long application process for a visa in which he submitted numerous pieces of truthful information to the government and the government had both the information and the investigative means and times in terms of time and resources to determine whether he had in fact been deported that defendant also had directly been submitting reports to the ins which in this case we don't have anything like that finally your honor as i see that my time is running low but as a last point i would like to address the public policy issue that searchable database any faster than it was a defendant presented himself at the border just the day after he was deported and so in this case to render a finding against the government there would be no public policy that would be enacted that would encourage border patrol officers to be more effective or thorough in their investigations of aliens of the border and if a court has no further questions i submit thank you in the first place and there is a line of cases in this circuit that you know at some point and in some instances an alien does not even get to the point of being found in either because they've been under you know but fishel control or under of circuit cases including cases called gay and canal he meant as from the eleventh circuit and which at one point the eleventh circuit had suggested that found in offenses only applied to  to surreptitiously entries which this court has rejected in a different case but and then it sort of backed off of that holding in subsequent cases so in footnote twenty this court is dealing with that decision gay which i believe occurred back in the eight the illegal reentry occurred in the eighty's and i believe the alien in that case i don't have it from me used also authentic or invalid green card or a passport that not been properly stamped and in that case there was a record that it took four to six months in the eighty's to input all of the information so and that this menace in any way and further this footnote occurs in the context of distinguishing and out of circuit case again for tolling one found in which this court had already departed from i believe in or z saying found in offenses aren't limited to serve tish's and trees which i had rejected some time ago so that is how i would i would distinguish that as not being as being a point that the court did not actually pass on in the fall menez and that the district court did not consider the government has never cited the government and the district court believe this case control if anything by xemu d o which we ha distinguished as involving a green car and something that is clearly a travel document and something that clearly would have a border officer into believing that a right to enter has been asserted