there before coming to the first second issue is the confrontation clause issue the district court violated the defense right to confront the key witness against them at trial by admitting the full fifteen deposition in evidence the witness was the alleged coconspirator mr going to a room and he was not to deal with the test of my life at trial for one reason the government deported him before the trial and took absolutely no steps to ensure that he would be able to return for the trial to testify why the government concedes that it cannot show a confrontation clause violation here was harmless beyond reasonable doubt so the only question for the court is was there a violation and the answer is yes because once the government had the deposition of this witness the government did not act with reasonable diligence and care to ensure mr in your own presence at the trial and i think a logical question for the court is what should the government have done differently what would be reasonably diligent in this situation and i think there are two answers that question one is theoretical and one is more practical the theoretical question to that answer is what this court articulated in the lynch case in the context of political hearing testimony and that answer is that the government should have done precisely the same thing it would have done had the district court denied the motion for a deposition and i think the answer to that is that the government did not do that and more practical answer  what what should the government have done in practice so to answer that i think it's actually helpful for the court to understand why the witness was deported before the trial to be clear enough focus though what  reasonably diligent applies the entire time and i think it's actually particularly important for the government to be diligent before the witness is departed are you understand where i'm going with this so i just need to clear  government was not reasonably diligent even after you know there's not even evidence in the record that receive the subpoena that the government says before this court that he did that but but citing only the evidence that was cited in the district court for the proposition that you could you can presume because it was signed for by katie whiting n but of course that's not the person's name and it's also not how he signed his plea agreement so there's no way to know and that's that's the problem with looking only to the actions he can after the witnesses deported because by then he's outside of the government's control he's outside of the government's custody and it's really speculative as to whether or not the government's going to be able to get him to come back that's why it's  well the government says it is but due process now that brings me back to the first issue which is the standard what would the government have done here at the district court denied a motion for a deposition in that situation because from an doesn't say well we have to protect  due process rights the government holds the person as a material witness and know that on this record we don't know that that's what the good government would have done here but i think it's reasonable to believe that's what the government would have done here because that's what the government does order because the government had moved to hold all indians as material witnesses into smuggling cases so that is there does tend to be the practice but even if i'm raised to process concerns for the witnesses themselves i'm in there somebody who se so i think it would be appropriate thing to do is to have a hearing at which the witness can articulate the reasons leahy believes he should be allowed to be free and the government can articulate why the person is a ritual witness and if the court then believes that there are due process concerns that counsel against holding him in detention as a regular witness then there are alternatives including supervised release providing him with a work permit providing him with a housing statement those are the sorts of things the government does with its victim witness funds when it needs to have a witness present in the country to testify and what's important here is that the government didn't even consider any of those alternatives the government deported without even considering any  because the government had the deposition to testimony it wanted and needed and that was the end of the story for the government and what the six seven says is that that is not sufficient that that mr burton and we  confrontation clause right to confront the witness against him at the trial so are you saying that maybe it would be a due process violation to resist to restrict mystery in your arms freedom to go when he was done with his sentence and when he was to rebel by the government and even find out for example when he voluntarily remain in the united states if he had a state and even under electronic monitoring he might have been willing to stay and we just don't know that given that we don't know whether that conflict exists on this record we can't act as if it did that's correct or and and and i think given that the government now says it was futile to try to bring him back that a council in that sort of a situation even more in favor of these reasonable diligence and care before you make the decision to deport the witness which in that situation virtually guarantees that the defendants confrontation rights are going to be deprived at the trial and in a situation where the government doesn't even dispute that the confrontation clause violation was prejudicial again that's it and even more clear situation where there's a duty to exercise reasonable diligence and noticed it in your brief you did not correct what she actually said that her later order correct and that is if the india wrong is not deported by september twenty sixth team the government fully intends to have them testify the words the government said all along whether they're right or not but we don't have any control over whether it's deported and she  was guided by that and so sort of the deposition video tend to she was a person so but a couple of points first is that's correct we don't argue that the government acted in that faith and that's not the standard that this court requires the lynch case i think makes it very clear in the country circle or hearing testimony rather than deposition testimony but we don't argue that there was there was any bad thing i do think that the district court made a mistake because the reason the trial was moved back is that the government having produced the translations of the documents intended to use in its case in chief that's still hadn't happened when the deposition took place  when the government moved to the deposition the defendants of oppose the deposition on the grounds that they weren't ready exactly the same reason why they had needed a continuance and at that time the district court said you're right you cannot get a fair trial until you have this translat documents but of course they still didn't have them at the time of their position and so the very prejudiced that contre to continue the trial was suffered because the critical witness was deposed without the same documents and that and the government actually doesn't seem why they can but i think that has to be one of the reasons why is that this very important evidence the spreadsheet we go through her briefings on wasn't translated and so the deposition went on for four days because it was you know trying to figure out well what are these documents and what do they mean and have you been a trial the defense would have had the documents that the cross examination would have been much more focused they could have adjusted to cross examination by reacting to what the jury was doing and all of that wasn't allowed to happen because the jury wasn't there  not survive until the trial i think that's the clearest situation but i don't think it's the only one i think where the government does exercise reasonable diligence and care and for example securing a promise from the witness return and  court hears that promise and believes it and issues a subpoena to the witness before the witness leaves i think in that situation it may be reasonable to grant all fifteen deposition because the government's been reasonable and diligent and you know perhaps the witness is going to be going to a country that's dangerous or where it may be difficult to return in that situation i think it would still be appropriate for the gradual fifteen deposition now if i can turn to the first issue in the brief which is the jury instructions you know our issue in that situation just the focus of work is that there was prejudice suffered because the jury instructions allowed the jury to convict based on by omission of any known legal obligation not just the particular legal obligation that is embodied in the  a in the eye to regulations and let me just go right to the heart of why there was prejudice here throughout the trial again and again the government pointed to one thing above all else that should the defendants allegedly had a guilty mind and that was the government argued he the government and they're talking about a scope and the government reads almost the entire exchange into the record for the jury and it says you know if you put stuff in the packages that won't look good it will customs it will cost to pay the people to bring this stuff through customs and then explains that burton says well they would know just by looking at it that they there are the thai authorities so the question for the court is based on the instructions as read to the jury could the jury have convicted based on a theory that he knew he was violating title law and under the height case if there are doubts about whether the jury based on it based its verdict on the proper construction of guilty for certain ten to the new trial is required and the court can affirm only if it's high and improbable that the jury found the defendant's guilty under an improper legal theory i think given the focus to the trial on this evidence that they were trying to if they tie customs was the cannot say that in this situation the jury didn't convict based on an improper legal theory and the instructions that the defendant had advocated for would have prevented that because those would have required the jury to grenade launcher around was unlawful i went back alone without reference to licensing suffice so i do think that would also have cured the particular prejudice from this case and that's the instruction from the  but of course that wasn't what was asked and i think the court could articulate that as the standard which is what was or to the later version and that would provide guidance in future cases but it still would require a reversal in this case now here though if i mean and i guess the reason that it seems to me whether he knew who willfully intended to export without a license the less is perceived is neither here nor there because if he doesn't even know there is that it's possible to get a license to do it modeling but he does know it's unlawful full stop and he does it anyway without a license isn't that enough to support the conviction well i think there's sort of the question of what is what there what th facts where perhaps this individual had been in thailand and received munitions and then he tries to defend against willfulness by saying i receive them before i knew they could be mailed so i just mailed them and then the government one want why can't we say that what's on page sixty six all together is enough because it refers not to tie law but in in detail to the arms control act and it looks so i think the answer is that it's not actually full stop illegal to export the magazines amount to time when it's only illegal to export them without a license and that's that's the reason why the fifth circuit carriage directions refer to the licensing requirement because it's actually it's not a crime full stop to export these items you just have to have a license but he didn't in fact atlases he doesn't claim he have a license he doesn't claim that he believed what he did was lawful because he'd seen it happen before and unbeknownst to him there was a license so it to me the the real rest as you point out is that he was convicted because he showed that he knew that he was doing something wrong but that the jury found based that that he was guilty based on his apparent consciousness of wrongdoing these are the tie in customs yes that is correct and the reason why that instruction as a whole doesn't cure that is because the jury reading this instruction would have been able to convict based on knowledge that the car not violated any known legal obligation it in disregard of known legal obligations and  that's why all of the evidence about time bar and the intent evidence and the discussion at length or in the closing argument would have led the jury to say look there's clearly a dispute about whether he knew there was a lace interplanetary us law but there's not a dispute about whether he knew this violated title that came in really through defense counsel during the deposition because the instructions hadn't been decided yet that that time the defense thought that was going to be exculpatory but there was also wasn't minimal ample evidence that he defense was that he thought that exploiting these things for use and b b guns was ok so that all you know the jury that was very much before the jury and given that this patients jury instructions talks nothing about thai customs authorities and then at the closing argument three pages of transcripts going through this you know and it's very memorable that you know because of the heat of language right and that is what that's about is hiding these letters from the thai authorities so if you have a dispute if you're jerk and you have a dispute about whether he knew these things maybe or maybe they were were violating u s law he thought they were b b guns the government says no he knew they were legal but no there's not a dispute that he was trying to violate ty law and you look at the jury instructions and they say in disregard of ada legal obligation as a juror it makes your job really easy because you can go to the thing that's not contested and convict based on that and not have to deal with the difficult question of well didn't really know that the magazines and  which are the only items in the indictment require a license to be isolated and that's why here the court really can't say that it has no doubts that the jury did the easy thing when when otherwise it would have had to do the hard thing and if i can that the defendant at least understood that yes some items couldn't go to thailand from the u s because they violated u s law to hear that but the problem is the items that didn't go he didn't know bread that that's the problem is you have an unsophisticated man who doesn't even speak english fluently trying to figure out these extraordinarily complicated i type regulations that there are entire departments of d c law firms devoted to helping sophisticated defense contractor figure out and and so his defense the jury is i guess i did not understand that these items were mediations that required a license to export but the jury can convict him if they think he knew that they did that he was trying to violate thai law that makes  prejudice she ignores the fact that this court must first determine the correct construction of congress's use of the term willfully in the arms export control act the statutory history the timing statutory language every court of appeal to have addressed this issue i'll make clear that the proper construction is the grinding standard as articulated by the supreme court which is that the defendant know that his conduct is unlawful that answers the raised this complaint that that standard with improperly allow a defendant to be convicted for knowingly violating some different law in that case new york law in this new york city law about selling without a license on the sidewalk that show various different tensional unlawfulness is whether it's a musician's laurie any other law if there's a separate obligation that the jury instruction be clear when it talks risk of conviction on something that wasn't charged and so it seems like it's sort of a less intrusive way of potentially that we could respond to that objection and say well you need to go all the way to requiring that they know that it's the arms control act and they know this and you know there's a license who might buy in order to respond to the objection that they squarely actually i disagree that they deserve that objection that objection would have come about because of the facts introduced at trial and it's something that they would need to make at the end of trial saying on the specific facts as i understand your on this question on these clear i also there's no prejudice from the court's jury instruction defense counsel's characterization of the trial is focusing on thai customs law it is just not accurate we reflect what happened a lot of the focus was on the defendant's knowledge of the licensing requirements there were several customs notices that the defendant received that the government introduced into evidence and it was on those notices that the government was focused his actual knowledge that he required he needed a state department license to export firearms and pieces of firearms and the discussions that he heard in union rome had acknowledging that what they were doing was illegal that was the focus of the evidence  the focus of the government's closing argument in particular the december two thousand and ten seizure notice that junia rom sent to burden that specifically referenced the arms export control act and the munitions list and burden he said once i received notice i knew it was illegal to export firearms parts from the united states when i sent it to bergen he knew it and so the focus of the government's argument in closing and of the entire trial was on illegality under united states will in fact defense counsel as you point out in your brief said that the reason the person is innocent is because he was worried about high customs law that was the defense's argument and so the  therefore violated the arms export control in terms of confrontation cause issue the government's view is that it would have been fine reasonable under the facts of this case for the government to take affirmative steps to attempt to prevent india rahm's voluntary removal to thailand two years before the trial in this case at which point the government had no reason to believe  that you're wrong testify at trial and had no reason to believe that he would be removed before a trial occurred the government entered a plea agreement with you and your mom and which he agreed to a media voluntary removal of tom completion of his he wanted to go home in the agreement he avoided deportation proceedings he had immediate removal through entry of the judge's order this was the way for him to get home as fast as possible mr limits at least based on what we have he's removable from the united states on the completion of the sentence imposed in this case your client consents to the entry of an order from the issued by this court into the immediate execution of such order on completion of the sentence but it doesn't government that a clear purpose of the agreement is violated by something the government did and so here the purpose of this was both to allow the government to remove him as quickly as possible but it also gave him your own benefit do we know that had he been asked before he was removed got to stay with some kind of support from the government or even without any support from the government if you were invited to stay speak with the government and his refusal to return for trial says she found in her order granting the admission of his deposition a trial that india rom would not have agreed to stay had the government  based on post harker when he was already in thailand and was not returning it based on his refusal not even to speak to government prosecutors and based on his refusal to come home or was resistant and one of only testified would subpoena and you know then doesn't that further underscore the government's obligation at that time not to let him slip away because it was hard if you was reluctant when he was in the united states the notion that he would be able to be brought from thailand is really hard to credit this so that is the government's view  that it would have been reasonable to hold him in the united states whether in custody or out of custody that on the facts of this case given the government's theory and the benefit to you in your almost immediate removal and immediate return home that it would have been on reasonable on the facts of this case for the government to take affirmative steps such as seeking to hold him as a material witness seeking to make him stay in the country by withholding his passport the district court affirmatively found that it would not have been in the interests of justice to incarcerate you do wrong as a material witness and in trial and government would have you know we've been over this before but just to clarify that the government would have had him testify in person ha had the deposition been to not that's that's what the dish report said that some of the government but the government said it in its motion to grant a will fifteen deposition was that the government intends to work to ensure that the witness is available for trial in what way invigorate didn't say but i'm asking you i guess i'm asking you if the government intended to do that were in the deposition did not mean given the admitted prejudice of being limited to the deposition trial wouldn't the same after it's have been in order to protect the confrontation it's my view that the government took the same efforts here as it would have had the deposition been denied the government was precluded by the paper a month from here being in your wrong and the country any longer and thus he would have been removed regardless and thus and then the defendant and i don't think the defendants disagree that the government undertook a reasonable good faith effort after your own to remove all to secure his testimony by contacting his defense counsel e mailing him sending out fed ex on the love that was signed for at his last known address and in fact actually contacting him and speaking with him and that's what distinguishes this case from the many cases a lot of time other defendants is that the government actually was able to find the witness in the form country in this case speak with that witness and that witness adamantly refused to the district court had not granted the rule fifteen deposition and everything had gone as was predictable the government would have had to drop the case no you on the government can try t matter of months until the trial took place and if the government had thought that they needed to do something to keep him in the country that there was an easy thing for the government to do which is produce the translations of its documents faster and then the trial can happen earlier but that's not what happened here instead the government didn't even produce those translations in time for the deposition second we disagree that the government would have taken the same effort and i think the government would have sor have sought to hold him in the united states under eight c f r to fifteen point three g but what if it were i mean there's a real serious issue here about the due process rights of some holding people for to act as material witnesses is no small thing and the notion that given the what the trial dockets are that this could go on for much longer than that in fact the delay is troubling and your position on that it is that number one that i agree that it's important to consider the due process interests of material witness but that the government wouldn't it doesn't and wouldn't take that position when the government needs supervised release or some other form of releasing them in the community but leaving them in the united states like holding their passport and the last but i want to make is that the government doesn't contest underwater either we preserve our objections to the instructions the first time i've heard that argument is standing here today and i think that's not correct if you look at the motion to dismiss from august of twenty fifteen the defendants argued that the government couldn't prove a willful violation of u s law because the goal was to violate taiwan and brought those  well before and then continue to preserve them again and again and wasn't obligated once the trial court has said this is what i'm doing for instructions i'm not changing my mind to really raise those objections again and again i think there their view is that you made the objection but that the your name on the pro bono list and we depend on that list of thank you thank you very much