the similarities between mr thompson and mr kimball don't serve to highlight the very important critical distinctions of the supreme court based is controlling opinion on like mr kibeho mr thompson was convicted of failing to register following a purely intrastate move within the state of texas the reason that we would submit there's a very clear distinction between the grounds on which the supreme court was able to protect the constitutionality of that statue with regard to cuba does that not to mr thompson w be legitimate and so forth is our position your daughters that it was necessarily confined to the military regulations clause of the constitution and nobody it's mean congress certainly had a guardian did it not under the commerce congress is not allowed to see a circuit general police power that's reserved to the states and my second support comes not from me but directly from the words of chief justice roberts in his concurrence quote the fact of a prior federal conviction by itself does not give congress opinions are so many going to get confusing for them in the motion to dismiss is number one and number two the very first debate opinion written back in february of two thousand and eleven judge genesis concurrence warner disagreed with the majority quote the majority record the question you just asked me the problem isn't the problem the reality is the supreme court hinged pivoted there holding in cuba dope on that exact reality that the enumerated power was that of believed to create evil regulations for the armed military regulation clause as the sole foundation for congressional authority in support of sort of that's at page one hundred one seven of the bruni opinion and yet your honor i read that i went back and look at this is straight from the key to the majority the justice briar road and a union but even the majority does davis was based talks extensively about necessary and proper and military regulation having to be the conviction in this case so i didn't mean that some other underlying conviction that congress authorized to the rested on the crime under the uniform code of military justice that was presented there as our argument just gave us that in less than until the supreme court says that the logic of kibbeh to go under necessary majority opinion in cuba would make go outside the military power proper to other people to include other people within us the special relationship to the federal government people of iraq on federal property i would argue that's exactly the situation which the ninth circuit found when they in the case of elk shoulder which we also cited are twenty eight a letter obviously a native american name that gentleman had gone to the indian reservation the ninth circuit was able to resolve the case on the property because using the language we don't use that language in more indian tribes in the in probably the language of the constitution and that the native american legal issue that was a broad ruling of kibeho but i got it i think we have found a lot of cases where the necessary and proper clause have been applied to legislation other than military or some other special relationship i mean up to maine the general rudely is if congress had the authority to legislate don't align crime then if it's necessary and proper for them to you know follow up with they have the right to impose this registration there's no dispute they have the right to do that your argument would be that wants he is registered upon conviction and being released from prison that he can just go anywhere he wants within a state and not register again which totally undermines the underlying statute that's just a can't be just burst of there are of course other ways that congress can still achieve the policy goals that it and then ca did when passing the legislation and of course the scalia and thomas so that at length for example i pulled these regulations with a little more drama in charge during instructional challenge that the attorney general promulgated there is this procedure to the smart office and what the acronym means that department of justice that gives budget cuts for certain crime prevention program for states if their compliance is not up to the control standards the attorney general has established of just like in south dakota versus dole where the congress wanted to restage raise the drinking age of twenty one the condition the transportation funds similarly there's no doubt they could legislate or punish people who crossed state lines interstate travel that of course is the requirement if someone's going to be federally prosecuted under that same provision of twenty to fifty for were originally convicted in state court not federal prisoners there's a number of ways that congress could continue to get the ultimate end result is our position does that with regard to what they were trying to do here to people who've never been in the special jurisdiction the united states  a special relationship with the federal government that does cross the room into the impermissible police power if you had not frustrate the entire structure of sora there's still many other things the congress could do that would allow them to and they are doing that allow them to the executive branch to impose these conditions on the states to get the state wide more unified framework that congress obviously thought was more desirable than the previous welding act you have a lot of other issues i do ok the next issue that of course i would  of these regulations promulgated by the attorney general or they cannot but it's simply the only unfair to cherry pick this word or that word out of the definitions promulgated by the attorney general  i'm talking about the thirty day duration residency requirement there there's no doubt a footnote to this court said that they were not going to reach that issue because no argument had been made down below them in fourth and i think it was even a forfeit in the original opening brief there's no doubt that the a f p d on mr thompson's case he cried the case was very conscious of that and held up one player and we got just a bit talking all about that he wanted to make sure he didn't fall into the same mistake that that lawyer did so in other words in th everything after the first sentence describing the word resides there are three clauses all came from outside the statute is our first level position that there's nothing inherently so technical about these words they should be defined by anything other than the planned language of the statute but if they are then it has to go entirely that you can't allow what you know factually this is our complaint judge and this is at page seven of the jury instructions the very last instruction that page quote the permanent abandonment of the book constitutes a control quote change of residence regardless of whether a new residence has been formally adopted that virtually instructs a guilty verdict by contrast there's no doubt he's made that the statute of st is self has this read a requirement and yet the attorney general has said that we look at a residence up to thirty days that is language that would allow a defendant were they to get that instruction to argue to the jury look jury my evidence of that in this case i'm saying that they do some evidence or a minimum that they get an instruction on that that and that specifically what mr thompson's lawyer asked for down below why are you were representing my appeal when he was of the case in the course and already the government should be allowed to put on their theory of the case and get instructions that they can argue with support of the problem though is that the defense is allowed to put on their theory of the case and history of the case here was that he had not permanently le the establishment of a new residence ok if i c had a special relationship with the federal government even after his release from prison and his release from his supervisor the market relationship or the relationship is that under the jacob wetterling act he was required to register as a sex offender there was a requirement someone came in fact in two thousand and six the jacob wetterling act was repealed but sort of basically took over and slightly altered those requirements but maintained that relationship in this case mr thompson has always had a special relationship with the federal government just like the defendant kibeho did in the supreme court case as to the second issue in this case the opponent argued that the defendant's change of residence was not sufficient to sustain his conviction and as you heard the appellate just say right now when they were talking to the court that the defense in the case was the defendant had left corpus cristi temporarily and claim to come back but actually at trial the evidence was the exact opposite and so much that during closing argument the defense attorney stood up and it's on the record of page seventy four and said you got it he did  it he abandoned he is gone ok he's changing his residence at trial the evidence shows they permanently abandoned the residence of corpus christi that they were not coming back to corpus christi so much that the defense conceded  the closing argument as i understand it the pendant when he left corpus christi had a lease pending in the himly mckinney but something happened to the lease you mentioned this in your brief three  so when when give us some details about that lease for an apartment in mckinney yes i know what had occurred and what the defendant's roommate and friend matthew hoggard testified to was that while they were planning their move from corpus christi prior two or three months he had used an apartment locator service to find an apartment in mckinney texas that they had an address for that apartment but upon their arrival the apartment located service had not worked and it followed through so when they arrived in corpus christi texas the apartment that they were originally were going to go to was no longer available but there was no lease that they had executed or no yuan they had not actually signed a lease and it was after that point that they began leaving at a hotel a balancing between the hotel and the park during the testimony in the case what also came out was the apartment manager when she arrived at the apartment complex noticed that the you haul truck was gone and the keys are on the table she went and looked in the apartment and it was vacated had completely left it there was also a monthly sex offender treatment that the defendant was required to attend in corpus christi when they contacted the defendant to ask him whether or not he was coming for his appointment he said no i'm no longer going to do that going back to what i ask you in your brief at three you see the government states upon arrival in mckinney thompson and hans apostrophe s agreement for an apartment lease fell through so what was the agreement with this apartment locator service that yes i want this apartment or something so like groupon where you go you can get a hotel room what twenty agreement that's what i want to know as far as the actual with agreement that they had  or don't know the specifics of it from mr hunt's testimony he thought that it was set up and ready to go the apartment complex when he arrived did not have that up and ready to go through this apartment located in the apartment locator signs thank you if they were looking for another apartment during the time they were corpus christi the evidence was that they were living in the hotel until they ran out of money mr hudson testified that they relied on their ingenuity and at that time they would go back to the park where did one of them have a son and yes your honor mr hunt had a son that resided in mckinney and i was one of the reasons that mr hunt wanted to leave corpus one of the reasons they both planned to leave the other one being that they thought that corpus christi was dangerous and when they were when truck that they rented on a one way rental under mr thompson's name the police officers testified when they looked in the back of the truck that it was set up kind of as a living room set up with their furniture inside the truck and i believe mr huhne also testified that yes when they were living out of the truck they kind of had it set up as they would set up their living room the court tell the pretrial hearing and watched a videotape of this interview mr thompson had been deported from mexico and had been brought to houston to the police department for this interview he had been read his rights he went over the miranda form and he never an attorney if you go back and review the tape which the court did review the video you can see a multiple occasions that the poet mr thompson says jokes about getting an attorney but then waves and says no no no i don't want to talk and this was evidence that was presented through this marshal moved on and he the key testimony he presented was he had instructed thompson about proceed you have to go through parental situation something to that effect issue and i was his testifying about what he told the defendant a miranda violation since it's not the defendant's testimony that is being used it's simply the marshals testifying about what he told the defendant and it's the government's position that is not your out of there the only testimony from mr thompson that was a statement from him was when he verified that he was the person who was convicted of the sex offense in oklahoma that was the only statement that was introduced during the trial for mr thompson the remainder of the testimony was from deputy lou hahn telling mr thompson his statements informing mr thompson of what the requirements are under the sex offender registration notification  and then looking at the final issue your honor the jury instructions in this case the court submitted a jury instruction that went beyond the definition in the statute and looking at the facts of this case the court took it and clarified it so that the jury would have a better understanding of the law the specific item which the defendant has been objecting to involving the permanent abandonment of the boat came from the case law that the court looked  concerning specifically people who don't have a fixed place of residence but have given up their residence and have moved on saying they cannot balance within an area and that you have to update even if you have established a new residence the thirty day requirement that the court looked at and so they were not going to clued would have made the instructions more confusing in this case because the defendant himself had changed his residence when you look at the attorney general guidelines and it talks about the thirty day requirement it provides an example of a situation in which someone maintains a residence in one place yet goes to visit their significant other in another place in this situation the defendant had completely abandoned his residence as the court had look lives definition would not have applied because the defendant had permanently left his residence and therefore he was required to register within seventy two hours just as the attorney general guidelines who asked the prosecutor up pulled up the testimony just reading page five eighty five of the record where mr hunt was asked about the apartment locator service the actual testimony about the apartment  i was she didn't recognize a receipt that i had when that occurred she decided to stay at the regency in and suites the point would just be just broke still not so much that the locator did or didn't do whatever they were required to do under their contract whatever agreement they had but mr hunt was only talking about himself there's no doubt it's just been a said that mr hunt a son lived up in the area as mr hunt who had apparently arranged the apartment locator that fell through is are all conduct of mr hunt now i don't dispute the government has some evidence that tend to support their theory of the case it goes not so much just russell it's our my client's theory of insufficient evidence but again back to the fact that it should have been allowed that jury instruction as to the thirty days requirement if they're part of the thirty day i call a safe harbor with a thirty day window that the attorney general has identified for the exact reason that the jury might have had that instruction given been allowed to go with mr thompson's theory of the case which is that he was gone for far less than thirty days and he was simply traveling with mr hunt the man who by all accounts and goes on for help more pages i don't have time to obviously read all that here but that he was mr hunt was the one who had made the arrangements up there in mckinney and yes just partial as you pointed out when they were actually found in mckinney they were having some sort of a barbecue or something out of the back of this truck in the park i forget the name of the park up there in mckinney a defendant could argue to a jury they didn't of the jury this shows that mister thompson did not intend to permanently relocate this shows the mr thompson was not going to stay up there he was simply traveling with a friend who was going up there for his own reasons and they were having a barbecue that there are two different constructions of the evidences and that she fairly be allowed to argue to the jury supreme court case and whether the you know request for counsel was sufficiently definite so as to let the tories know they should stop the questioning i'm reading directly mr thompson's towards the beginning of his interrogation thompson i want an attorney of course there is nothing at all tenuous or uncertain about that the very next thing the asian said if you want a lawyer if you want a lawyer i can't talk to you but if you don't want to talk to me just sign this and that's when he handed him what turned out to be the consent form i don't think that seems to me to be a very alarming for the moment violation when someone uses an equivocal language i want to lawyer of course and the very next about this was things that he had told the defendant at the at the government at the trial had wanted to leave it at that that might be a very different situation but the very first thing they got to this state and before the agents are testifying of the things that he had said question and when you conducted the interview with that is than the prior to asking him questions or going into your interview did you advise him of his miranda rights answer i did so in other words we would argue with the government trying to do here they weren't content to sit back they already had a discovery violation on this statement they w conversation if they had wanted to walk away from it they could have but they really wanted to hone in on that and we argued that made elevated the importance of that testimony in the eyes of the jury if it was a miranda violation and the government was in allowed to reduce testimony from the age