and so the court of appeal applied what it said was well established law and all returned the conviction defendant until after the after the parties had rested and mr rathore had testified and the to it on the stand although i want to say for the first time that you know that i think think no i think he misspoke i think he was trying to explain that he gave the photo id with the picture of the guy who didn't look anything like him along with the check written in the guy's name he and ten they found him one not guilty and one you know they hung so i think so i think so i think even if you say that somehow he had constructive case law in the last one hundred years helped and i don't so anyway the long and short of it is a twenty five years of life is a long time for using an i d to try to cash a check the courts so far have panel differently i'd like to write my i'd like to be able to write to him again and say you've won and so i thank the court for doing an excellent job of briefing the case and for representing his client at all levels but i respectfully disagree with him about the bottom line here for a number of reasons almost of which have been expressed in my briefs i would like to have as i was going through in preparing there didn't seem to be a lot to say here that hasn't already been covered in the briefs but i i would like to highlight a couple of points there are two cases which to my mind of have been cited by the parties which really control the outcome here at least with respect to the due process flash who we claim the first of those cases is rogers the tennessee and now one we had a situation where the tennessee supreme court  abolished the common law a so called year in a day rule with respect to murder and that resulted in a defendant who previously could have expected to be acquitted of murder on the basis of this rule to be convicted and in spite of the fact that the rule have been around for a long time and had been embraced by the going to be unperceived now applying those two cases to our situation were similar to rogers in that the decision by the california supreme court removed a narrowing construction that had been placed on otherwise unambiguous statutory language it's similar to hagan in that the state supreme court overruled not its own precedent  but that of a lower state court and i'd also point out that unlike against the result is that every time you go to trial it's foreseeable that whatever statute and case law and her pertain is on the books that the state supreme court could change anything basically well i think i mean that's that's the kind of the bottom line is what you're telling us i think i think  statement there is there may be the very rare exception if you have you know if you have fifteen or twenty published intermediate court decisions which the same thing and they covered the entire geographic extent of the state or in the case of a a federal issue cover all or almost all of the circuits then you  courts of appeals and the supreme court in the past and seen that the only the only construction of it was the one that those sides applied in the prosecution argued for in this case i  authority in california i mean i i i've i'm sorry go ahead go ahead go well i was just going to say i relied on what's going on many occasion to myself but i think we we all learned in law school that the the gloss on the word forseeable in this context so we're kind of in a position where we we have to we have to go with what we know what when we see it but in in this situation what we had was one intermediate court of appeal giving its take on a statute whose language was otherwise completely unambiguous and in fact the  h your honor pointed out have said that the existence of any ambiguity of that kind and the supreme court a state supreme court's resolution of that ambiguity in a manner that does not favor the defendant does not amount to a due process violation and i would cite that's in the the court case itself at page nine twelve and it cites another ninth circuit case called one were to adopt the interpretation of buoy this being advocated by the petitioner in this case there would be considerable implications of that for the federal system as well what it would mean is that in in federal prosecutions if you have one to the issue of first impression regarding the interpretation of a federal criminal statute would be decided a federal court of appeals from somewhere back east in some distant part of the country all of the sudden now that that rule that interpretation would suddenly become entrenched in the entire country and every circuit including this one would be obliged to follow that at the risk of creating a due process while ation fours a federal defend supreme court did not reach if the supreme court granted review slowly the buoy issue right this case and then and then overturn the only case that spoke about the statute and the last one hundred years and and then i don't court on that issue there was never in a question about it or not and didn't raise them in the in the state courts and and what was fascinating about the the second opinion of the court of appeal is it went well there's no