johnson i'm going to turn in with the federal defenders office and from montana i'm pleased to be here on behalf of mr ray as following the supreme court's decision in rosemont it's clear that to convict someone of eating and abetting an offense the government has to prove beyond a reasonable doubt that the defendant's pacific intent extends to all the elements of the offense in this case we're dealing with elian smuggling and the problem with the instruction given by the district court was that it doesn't form jurors that mr ray has could not be convicted in the scene knew the facts that made up the elements of the offense including especially that it was aliens being smuggled that is it doesn't incorporate the relative relevant knowledge element of the principal offense and this woodlot the jury convict on a mens rea of recklessness or even proof of love less than all the elements it's particularly problematic in this case where the principal offense has does have recklessness mens rea it's true that the juries the courts instruction include some language from rosemont such as the intent has to go over the specific entire crime charge or the full scope of alien smuggling but that doesn't explain what those terms mean or expressly tell the jury that the defendant must know the alien status it never tells the jury that the intent must go to all the elements of the crime charge and i guess all the elements of alien smuggling in our view of the failure to explain what these terms means as per the problematic you can even more so because of the rest of the instructions that follow do speak in terms of alien smuggling being an offense to find in terms of elements and the consistent description of offenses as being comprised of elements in the rest of the instruction jury simply isn't going to understand that the undefined terms mean that a defendant must be accused of alien bagging alien smuggling must know all the facts that make up the elements of the crime and including especially not i don't think that's necessarily an extension it's an application of a clear rule of law the model jury instructions of two or three circuits now provide for this sort of formulation i'd also point out that there well there is some language from rosemont in the instructions there's also other language in the instructions that tends to detract from whatever clarity that could have provided instructions off for that the government must establish that the defendant acted with the knowledge of a crime was being committed but again the whole point of rosa monde and in our case it's not a crime it's a specific crime with specific elements that someone's being accused of aiding and abetting but in this case this particular statute speaks of you friends as quote knowing or reckless distinctive intent standard for ending a begging someone else's act this is the common law your you didn't commit the whole crime and yet you're going to be held guilty as a principal again requires a heightened mens r latents no i well i think that for the for applying rosemont conscious avoidance wouldn't necessarily factor and we're looking for proof of actual knowledge that's what the court in rhode island is what you're saying that rosamond states the general principle for aiding and abetting not unique to that particular case and i'm asking you how that pertains to the fact that juries are routinely charge this crime requires proof that the defendant acted with knowledge knowledge can be proved through conscious avoidance of facts that should otherwise have been obvious to him made seems to me that those kind of that kind of instruction is very typical in cases of smuggling drugs smuggling obviously now here we have an alien smuggling  this case the particular danger is that there's the principle offense does allow for recklessness and to have anything other than proof actual proof that the defendant knew of all the elements that made all the facts that make up the elements of the crime i think you're running the danger that the jury is going to convict on proof of less than that knowledge but knowledge can be proved through conscious avoidance of what one should know agree with that but i think right so you're not disputing that  as i'm struggling to imagine exactly what the proof would be in this case but i think it's particularly problematic for the reasons i said because we have an underlying crime the principal offense calls for will allow conviction based on recklessness or reckless disregard for you do you think that an eight hour and a better is required to have more knowledge then the principle yes that's what that's what the supreme court says that's what those courts of appeal we point to just as counsel didn't follow the st circuits decision and car were the were there dealing with production of child pornography which is a strict liability offense as to the age and the st circuit explains that the supreme court recognized that the mens rea a requirement for  different from that of principles and requires that the defendant have knowledge of the the individual being depicted age actual knowledge i think it's only with and i think it's only with actual knowledge and this is what the supreme court and rosemont is talking about only with actual knowledge that the person's able to make a legal choice of government this court should affirm denny reyes is conviction for aiding and abetting alien smuggling because the instruction provided to the jury by the district court was entirely sufficient that instruction encompassed the knowledge requirements in the in the concepts set forth and rosemond and moreover it gave the defendant essentially what he was asking for at the district court level even aside from the instruction the record is replete with evidence confirming knew exactly what he was doing when he went to the us canada border that night which can give the court comfort that the conviction can be affirmed regardless of what mens rea is a possible here but i want to start with the jury instructions that koch that my adversary was speaking about the idea of rosen and outside the nine hundred and twenty four seat context in the nd circuit is maybe a question that's up in the air but it doesn't need to be decided in order to decide this case for the reasons that i said the instructions the judge rice provided to the jury and i think it's important to to review all of the instructions parts of them are pointed out but the entirety of that instruction which is in the joint appendix at seventy six and seventy seven makes clear that this defendant needed to know what he was getting involved in and i think the concept behind rosemond is really trying to ensure that a defendant who's being held accountable for aiding and abetting knows what crime it is that he's committing and the instruction here certainly does that instructed the jury that the defendant needed to have intent that goes to this specific and entire crime charge and she specified this means the full scope of an alien smuggling so to the extent there's been an extent a suggestion at the district court or here that mr ray went to the border thinking he would be smuggling contraband drugs money something else this instruction forecloses that the jury statute instructions her instructions also address the substantive offense but judge rice was very mindful of this issue because this was presented to her at the district court and i want to be clear on the issue that was presented at the district court was the reckless disregard versus knowledge not the advance knowledge at the that the defendant is now pressing here but yes and judge rice actually said in the record that she had restructured her instructions in an effort to separate the reckless disregard men disregard specifies the principle needed to have knowledge or reckless disregard so again she was making an effort in these instructions to separate reckless disregard from the aider and abettor mens rea that was required to be clear here was the parties had both filed proposed jury instructions to the court and and the defend the government had filed in opposition to the defendant's proposed jury instructions and the court was describing whe thought she would be going with the jury instructions so on two hundred and fifty five dollars it actually starts at the bottom of two hundred and fifty four dollars judge rice says that she wants to she she had rearranged initially be substantive offense was described st and then aiding and abetting but what she describes is the way i think it should be set up and the way i have done it is start with aiding and abetting and have that and have that have the specific intent it needs to be then talk about the principle of the underlying offense and say the government yes your honor i've said in preparing for this to be clear the government does think that reckless disregard is a permissible men's right for aiding and abetting alien smuggling we have support for that from the garcia case from the night starting from two thousand and five yes non presidential and yes before rosen and but that case specifically said that recklessness can be a permissible runs mens rea a for aiding and abetting moreover the sand model federal jury instructions cited by the defense in his brief incorporates the principals mens rea into the instruction for in aiding and abetting an offense we think that's what makes sense here but we don't think the court needs to reach the issue because aiding and abetting concept she she tried to separate the reckless disregard mens rea which is a permissive will mens rea are for aiding at fort lee and smuggling from the aiding and abetting instruction she did not excise reckless disregard from the instruction in its entirety because that would be inconsistent with the statutory language and with this court's precedent but but the comment there and i think reading the instruction that she did provide to the jury  shows that she was making an effort to consistent with rosemond ensure that the that the jury would find this defendant knew what he was getting into when the crime he was committing the closing arguments provided  at the district court level further support the conclusion that this jury was thinking about whether it's knew that the aliens had permission to be in the united states that was the focus of the trial that was the focus of the defendants are defendants arguments and it was the focus of the government's arguments the the jury was presented with the question did the government meet its burden of establishing that any raise revenue the elements of the fence and in particular that these were illions who did not have permission to be in the united states i will also note judge rice during the charge conference was asked by defense counsel whether the defense would be able to argue that to argue in closing that the government did not meet that burden and she said she thought that was a permissible argument again supporting the conclusion that these instructions really were designed to ensure that there is knowledge i want to turn a bit to the evidence in the record  because even if there is error in the instructions the conviction should still be affirmed st again i touched on this briefly but the standard of review if there should have been advance knowledge instruction is for plain error that that argument was not present at the district court level and it's clear that in order to preserve the argument the objection at the district court needs to be on the grounds that are raised  appeal and that's not what is happening here so it should be a plain a review and there was no plane error because obviously the instructions provided were not obviously wrong in light of existing law even if however the instruction was wrong and the the instruction was erroneous and the issue was pervert preserve they're still harmless error because of the wealth of evidence in the record establishing that any reyes knew exactly what he was doing i'll point the court specifically of all of the evidence to the controlled phone calls that mr ray s made to chino after the event the context here was that he was mr ray as was attempting to cooperate with law enforcement so he's having phone calls with chino where he's trying to conduct business as usual continue the dialogue that these two men had been having previously in the record reflects that they had had forty minutes or so or more of phone calls in the three days leading up to this event they're having another phone call reyes is trying to present business as usual to chino and they talk about the three people and then the mr ray says conversation with chino during that call does not reflect that he was surprised that allianz suddenly appeared at this vehicle instead they talk about th people and mr rann says yes they're going to be sent back because they did not have papers this is that mr ray asked confirming what he knew that these individuals were illegals that did not happen mission to be in the united states thank you thanks very much unclear counsel argued that it doesn't go far enough under these cases under rosa mond it doesn't say what state of mind so i think that would leave the jury confusing i think we have to specifically tell the jury that in  you have to know all of the elements here that includes knowing that the alien that's really the corpus of the crime here that person was an alien the government disagreed saying a defendant need only be and reckless intended we wind up with an instruction that doesn't reflect rosa months requirement that the defendant be a specific attorney extend to every element of the offense in terms of prejudice may i ask you as a scenario where a principal gets two or three folks to get there and says we're going to the border we're going to pick up a truck you're going to pay us one hundred thousand dollars pick up this truck the amount of money would alert anyone to the fact that they're properly gauged in smuggling something they go to the border and all of them can hear human beings in the truck only the principal is responsible for recklessly smuggling those people into the border none of the air none of the a to hold him or her responsible as the principle that person has to know i'm a little hard pressed as to why your client isn't a principle here you may not have been the brains or the leader of the organization but he smuggled the people through let me and he didn't just make a phone call or rent a car or do something like that but putting that aside because he was convicted as an aider and abettor you were your argument to us that only the principal would be would be liable for alien smuggling in the scenario i've given you because the government couldn't prove that the aiders and abettors knew that the people in the truck lacked green cards that were act authorization to come into the country that's what the supreme court says and i suggested to you is to the extent they have to have knowledge they have it by by basis of conscious avoidance why not because you're being held responsible as a principal for the whole crime having not committed the whole crime and so we need heightened mens rea and you need the knowledge somewhat sufficiently in advance to make situation as i said these are not people who aided and abetted by making a phone call or buying an airline ticket or something like that they they affected we did commit the whole crime and you're saying that they somehow have to have knowledge that the people they're smuggling across the border they have to like look at their documentation or something like that but this is what the st circus that we're not i mean we  obviously are very interested in what our sister circuits say before not trolled by them certainly and this sort of circus says look it's a distinct mens rea didn't they say that though in the context of  strict liability crime yes yes this is not a strict liability crime but it has i mean a strict liability crime means that the principal is liable without any knowledge if we're going to hold we want to know that they knew what they were getting themselves into i think though that the the fact that it's a strict liability crime as to the in the case of a child production of child pornography as to the child's age because all the more for so for it to apply here if if we're going to apply this heightened mens rea even when there is no mens rea of all required for the principle of fans that strict liability that suggest we have to do it here where there smuggled something other than human beings the government itself thought it was drugs that were going to be smuggled this was a d n a operation there wasn't a direct evidence that mr ray as knew there was illegal aliens thank you thank you  talking with the with the agents and he's been told before he's the rest he knows that what he's transported are human beings right to the supreme court says you need to know in advance and the factual setup here as he's sitting in a car it's the net all the night and he's more than merely present when he learns that it's human beings by contrast rosemond he actually takes actions to help them the supreme court and roseman says you need to know and you need to know sufficiently in advance to make some sort of decision and the facts were that he's sitting in a car you run up jump in the car ten seconds passes by the flash bang goes off and the car checks off we met that's not sufficiently that thank you mr johnson very much we thank you both but we were just a little bit of clerical advice and it's entirely personal and nothing nothing to really important perhaps in the last analysis probably really do have trouble reading the pages not without a magnifying glass so i know what it means more pages and in food too or maybe you would help us out with thanks very much now we appreciate it and we appreciate the argument of both of you tried to see you here