indictment and it requires a plain concise and defendant's a written statement of the essential facts constituting the of the offense charged where an offense where an indictment does not specify the elements and lay out the facts supporting an namely attempted re entry after deportation which was dismissed because the indictment did not contain an allegation of the required mental state for an attempt this case in this case the be the element which is contained in the indictment is the overt act which is necessary to turn words and intentions into actions and to constitute the offense namely the defendant not only has to have the intent to attempt  reenter but he must also do something the problem with this indictment is the government did not tell us what that something is now the government's position was that the entry itself is the overt act but there are three ways of violating thirteen twenty six and what the government is saying basically and submitting the overt act they got this defendant could not have been charged with reentry per se with the entry because he was always under the control and observation of the authorities that the border remember there was a short space is it your position that there can not be an attempt and if there is an observation there can be an attempt but the must be some overt act now the government could've alleged some overt act maybe he got on the bus in mexico to come up to the border maybe he stole his his cousin's i five fifty one car he did a lot of things but the government didn't tell us what that is and the defense has the right to know their position at trial and here also as i understand it is that the entry itself is the overt act but he didn't enter the  case never should have gone to the jury because he was under the constant observation and control of the immigration authorities remember as soon as he got to the turn there's a legal in tree and there's a physical injury right the intrigue you're describing is a legal entry that's correct start just like briefly to to cover the other arguments are b two argument the fact of the time sequence between a reaction a prior deportation and a prior aggravated felony that's a fact whether one came first or one came second much prior to or subsequent to that is the fact that is a fact that is not contained in the state court proceedings in any form no where our proposition is that the right to jury trial gives the jury the power although not the right to not convict someone of an offense out of their discretion that's the second amendment requires a jury determination between the charge and the conviction and that didn't happen here and i know that the jury is never told that there was  the indictment and that it need not be found by the jury but the fact it's not incorporated in the prior state court proceedings in any manner never has and couldn't then it just isn't the fact that state courts address and as i say that the jury has the power although not the right to find a person not guilty if they feel that the government is piling on charges and hansing people when they shouldn't be enhanced in this particular case it's quite possible that the yes but he has to somehow get past secondary inspection to get all the way and the other facts are just put his foot across the line remember this was not only a fraud it was a bad fraud the inspector saw it right up front and the guy never got out of the control he  this court has held that section thirteen twenty six sets for three separate offenses and three being found in the united states and attempting to enter the united states that attempt in itself is an overt a first leo stark is that he could not have taken a substantial step towards a grand jury because he was under official restraint that prevented him from entry into the united states assuming without deciding that laos was under official restraint to a sufficient degree as  entry any such restraint does not also if self facto defeat a conviction based on attempted reentry right but this this is not an attempt you're out of the court also required specific attempted entry and not actual entry in that case and the court said it not it matters not whether the defendants overt act takes the form of assertiveness border crossing or a misrepresentation of legal status to the simple fact is that the attempts to come into the united states is the overt act he attempted to come in and he had the specific intent to do so without permission and he had more than sufficient notice from this indictment of the charge that he had to defend and that is the constitutional requirement that he received notice of the charge against which he has to defend and he had that noticed the jury instruction that the extend that rule to require success in order to be liable for the attempt and clearly that is not the case as the court certainly also maldonado it's the act of crossing the boundary line that is the overt act that must be committed  in order to support the attempt charge now that you were drafting an indictment knowing the argument that's been raised by defending today would you do it differently that's a difficult question to answer obviously i've known the defendant has been making this argument for some time and have not changed the way the government is indicting at least not in my cases however if you have false documents lloyd and lacrosse or making a false statement would be another where would we end it's the notice to the defendant that matters he knows that the government must prove that he tried to come into the united states that he did something as a substantial step and  that but you don't have to allege that in the indictment the government has to allege an overt act in this case alleging the attempt to enter is the overt act he attempted he came to the border and he attempted to  that is the overt act the indictment gave him notice of  something that would be impossible to enforce and so when you look at the attempted entry in this case you have notice in the form that he attempted to come into the united states and he did so with a specific intent to enter without permission your overt act and that's not circular your own there are other types of overt acts that you committed that would require further notice but given the circumstances of this case when he attempted to come into the united states at the port of but the element is not omitted the the allegation that he attempted to enter the united states that is coming in is in itself and over act so we use that  prior conviction and the date of the prior conviction is the fact that is bound up in the fact of the conviction the judicially noticeable document that the court looks that when determining whether a person was convicted also tells the court the date of the convention the custody of the government and the admissions were listed for the specific purpose of obtaining evidence it says in bold type underlined this was an investigation a painting these statements from you for the purpose of