a yellow light on you have two minutes when the red light comes on we ask you to can unless you're answering a question from the bench we have heard you record the briefs and the record excerpts we've not necessarily been into the full record so particularly in the second case in the morning we appreciate record citations but also in it to the extent that are relevant in the first one we'll call the first case number fourteen forward three four for united states versus yawners this is an appeal from a quote from a case in which my client was accused and convicted in the southern district of exporting empty firearm magazines to mexico the issue is posed in the brief is basically whether the trial court court erred when it denied my client's motion to dismiss the counts dealing only with the empty firearm magazines but the question really that this court is called upon to answer today is really whether the government's determination issued after the fact after the export should be retroactively dispositive as to the coverage of the munitions list raise that in  flows logically out of the the complaint that we made at the district court level which is that it's not in the munitions list now the lunar you said that down and in on the radio but you didn't you didn't say there was dismiss had been denied in our objection to the expert the government's expert had been lodged the government sat on the stand and testified basically that working for the state department they had decided or they the time of this trial i did cite to the court united states versus florida's which is really did the case that i exclusively relied on at the time of trial and really the only case that has ever addressed the issue of empty yesterday actually submitted to this court for purposes of persuasive authority because it's the only other court or the only other case where a united states appellate court has dealt with the issue that we're looking at here whether a particular item is called a component or is even on the munitions list but again never has it ever been considered with regard to empty firearm magazines is your issue that it's that they were empty or that they were magazines or well really really in the end the emptiness i mean if you have a gun without a munition in america it's across the border and you fill it with i mean the emptiness just seems like it would completely undo the whole goal of these export limitations if the fact that something wasn't loaded at the time across the border meant it was permissible and that that is something however your honor that was i think considerate at the time that it was previously animal was in fact part of the munitions list when he came up empty fire magazines in florida's i don't know if it was what made the difference but this court specifically stated that it was unclear as to whether these empty fire magazines were part of the and it never went on this is that the panel never went on to decide or make a decision as far as whether it is or should be it only stated that it was unclear whether they were part of the munitions this was in the magazine  manner and and more deadly that's what he testified to but the point that we made and we're making here today honor is that at the time of the export the law clearly was that this court has state for purposes of the argument from florida this was the one that they were not part of the missions list altogether the court did not disagree with that position however the court went to step further and said well are the components we're unclear as to whether they are components so reading the language of that case it doesn't it doesn't really say that it doesn't i'm not even sure i see the word component in the component six yes yes and so and so that this court went on to say well that they didn't disagree with florida's argument that they are not on the munitions list that's a fact they're not mean than the munitions this however they research at the time that florida's was decided and up to this point there has been no other circuit no other federal court that's ever dealt with the issue of n t five magazines and whether they are part of the misses year do you think it would say in your client's mind w setting up to export several hundred of these that they weren't on the munitions list well your honor and the case law that i submitted yesterday specifically deals with that issue because particularly in every case men's rare and there's not this rare as that court in the first circuit specifically stated it doesn't matter what the individual things you do what the government may very well prove that he had the requisite mental state but that the other element there is whether he actually broke the law the act this radius of the crime now the actus reus here is whether they are on the mission's list now in that particular case that i cited what's a component i mean that's the issue here  means put up with so magazine is put with the rightful so why isn't that self evident well and that and that really was the district court's position is that it's self evident however it wasn't self evident to discord when it was brought up it was self evident when floyd is brought up this court would have said it specifically it's obvious that they're components but we're not going to deal with that issue they didn't say that the court specifically says oh a bit that's because quite often we decide cases where we say it it doesn't matter because there's no plan there's no with this plane air yeah yeah it was not plane error so we don't have to decide because the district court could have reasonably decided either way so that's often something that we do and my doesn't mean that it's not necessarily clear it just means there has to casa said there's no governing certain circuit and if there is no governing law on that issue then it cannot be placed in my client's mind or knowledge now every statute needs to give fair notice to a person of this case doesn't require case law it talks about state department rulings and hasn't the state department on this issue and a number of times been asked about it inconsistently said that in the state department view that this does qualify as a component that is banned from export no this this has never been brought up to a c j which is it's a request by usually by people with contracts with the government to export with licenses this is never been brought up with regard to any firearm i do things the reason i i state that in my in my supplemental brief is that at the time of trial the state department brought the  government brought the state department's expert to say i'm with the state department and i conclude that they are in fact components this is a conclusion that was submitted to the jury post export now at the time of the export my position and as the court properly considered in zen's jew who which is the case that i submitted yesterday the first circuit considered that argument and stated we cannot hold it against the person who export it a particular item to no what was subsequently decided by the government was a component so one that particular case they denied the argument for vagueness but only because that particular defendant will was at the very sophisticated licensee of the government who was an export i mean an expert in exportin munitions and defense articles and could not in good faith argue that he had no knowledge he had knowledge he should have had knowledge and if he didn't he could have asked because he had a contract with the government in this particular case we're dealing with a mom and pop saw an individual who sells mainly boots and an army surplus stuff and sometimes sells on a contract basis by on any one particular client sells either  s or in this case in the firearm magazines i would say that in that case in this particular case looking subjects at the defendant he did not have knowledge anderson then the statute was vague as far as whether he should have known that it was illegal to export these now on top of that there is the witness didn't testify about the state department's previous treatment because there are these these commodity jurisdiction determinations on the internet that indicate they have in response to increase before said that magazines maybe not this exact type but the magazines for automatic rifles no considered components yes honor the expert actually just testified as to the fact that as your honor pointed out these particular components as he called them raise the invalidating and the usefulness of the weapon and then he went on to say that the department of defense the commerce department and the state department i've been in calls of consultation with each other had determined that the ag forty seven magazines were components and that they belong in category one age that's that's what his testimony was but he never once testified to the fact that this was ever published that this was ever made available to the to the public the only thing that had been made available to the public was this court's determination in florida is that he was nasa which is a store an army surplus store in the raido it basically sells mostly red wing boots but somehow it gets access to these weapons so you had to be federally licensed in some respect to the not no l the issue that i have that i am making is that at the time of the trial we made we made specifically made it an issue by our motion to dismiss these counts that they were not part of the munitions list now that specifically specifically neg aids the act this raises of the offense now the government did prove if we if we go with what the jury found that he had the mental intent to export these magazines but what the finds components accessories or what is it part component parts accessories and attachments for firearms well in in whether or not common i mean you don't need an expert to interpret that  and that was the same argument in zen's look we're on or the first circuit the government argued well this this is something not only did did we have a person of more sophisticated knowledge than the regular ordinary citizen owner of a of a of a mom pop shop small not a multimillion dollar corporation that they should have known that it was common sense and particularly mr wood the in that case should have known that was the argument that the government made the horton in the first circuit specifically stated we cannot impose it impart that knowledge on an individual if that's not the law at the time and it's never made been made public so m my client's position from the beginning your honor has the ins never been made public what do you mean by that will be just because it was retroactive or because it wasn't in code of federal regulations or what in zen zoo it was in in the code if they get federal regulations over after the export but before that the case was appealed to the that there had been this no request for as a determination by the state department and the state department did in fact in that case determined by up by a formal determination as they department that it was part of the munitions that this hasn't happened here however even there the court said that because that determination of the one was made after the export it cannot be held against them number two there's no information anywhere on the record that that determination was ever made and was ever made public so that would have been a second strike against holding it against the now again i'm looking and i mean maybe this is all came up after your trial but the united states the c f r twenty two c f r section one twenty one point one that list defines defense articles to include a firearms age component parts accessories and attachments for the articles in paragraph a right i mean you say that age did not exist before the actions that occurred here know that that that section did exist that it exists and in fact  section under eleven see reads exactly the way that one does exact the same exact language it's section eleven c and in that case they were dealing with face shift theirs which were specifically designed to to attach to a specific defense or military weaponry the the argument was the same it says here its components and this face shifter specifically attaches to this weapon and therefore makes it more usable same exact argument the court said we understand but that was not in the list and it wasn't in the list it wasn't made that he can't have known that it was part of it even if it is common sense or of the argument is that it is common sense because it had  perhaps other uses a word perhaps the argument was that it had other uses what in this particular case the same exact language applies their components according to the government however they're not listed under the components list and the only real determination we have from the government or from corporate or from the courts is that the fifth circuit has said it is unclear as to whether these are part or are components for purposes of the munitions  if that that does not give out a quick notice to a person who is selling that statute is vague that statute basically applies aids in a subsequent determination by the government to an export that was that was made way before the time of the of the determination which was trial and on top of that your honor we submit to the court that it should have been an issue it should have been an issue that was that that had to be proven beyond a reasonable doubt under printing and because it is the actual actus reus of of the criminal act which is whether in fact it violated the munitions this all right thank you sir you have time for about  raised in the opening brief in this court there is no reply from this court that issue is not before the court the problem was the first circuit case that the defense counsel filed the twenty filed as part of the twenty a j letter was the jury instruction the jury was told that they could not disagree with the state department designation that magazines were in fact components under twenty two c f r one twenty one point one  the first circuit found that that was an objectionable that should have been submitted to the jury judge marmalade hoster jury instructions  whether or not these are on the u s munitions list and in fact at the pretrial conference to fence counsel specifically waived that very issue may read from page five sixty seven of my and i just my purse or official my objection your honor is that basically it is not a fact issue it's a legal issue and that component is something that according to the statute would make the weapons fire and the weapon can fire without these magazines so not only was there no request for a fact issue on whether or not they're on the munitions list i would respectfully submit that that was waived before the trial began moreover there was no discussion in the district court or in the opening brief in this court of due process or no is the sole issue was a fact issue whether or not magazines for an a k forty seven are included as components under twenty two c i for one twenty one point one age precisely as well if i could yes we know that there is no clear authority quoting from slip opinion page one we know that there is no what the wording in this circuit on whether in the firearms magazines or components for the purpose of determining the defendant's base off in some level under to him five point two at the conclusion of the paragraph because there is no clear authority in this circuit any error in the putting the magazines a and it defines and items components accessories parts blah blah and indict him is a system equipment or is an assembled article ready for its intended use only ammunition is required to place it in an operating state a component is an item that is useful only when used in conjunction with an indicted and that's just that's a repetition of the definition from one twenty one point eight aftermarket rubber grips and cleaning kids for firearms that do not enhance the usefulness effectiveness or tape abilities of the firearm precisely as mr schwimmer from the state department explained a chamber and either point the weapon down so that it fell into place or push it in with your finger release the catch a while the boat carrier group to go forward and then fire the rifle one time the thirty round magazine you could fire the rifle thirty the function of the farm beyond description as the state department directly addressed this issue before any type of request i believe that mr schwimmer said that they had consistently determined that foreign magazines are components i do not know that they specifically said that a k forty seven high capacity magazines were components but there's no reason to treat them any different from any other high capacity magazine for either a rifle or semiautomatic pistol so what about the sentencing argument where the defending contends that these are not arms non fully two and its various revisions the original version the base of the default level was twenty six c the reduced level was fourteen of certain things applied and in fact judge lynch explains munition the guideline was amended by the commission and it was reduced to non fully automatic small arms the number of which is less than two it's their wording not mine and five hundred rounds of ammunition or december there's absolutely no attack on that finding it was a sentencing finding it is not clear it's fully supported by the record and that's fifteen hundred rounds of ammunition alone without the magazines only based often slows twenty six on unless one of the following approx you have fewer than two or less firearms you have five hundred or fewer rounds of ammunition for both the judge smith's question as to whether or not mr gonzales was aware that the crux of the questions i understand it was whether or not he was aware that what he was doing was illegal i respectfully submit that there's absolutely no question about that money was delivered by courier from mexico to mr exams almost two stores in the radio there was no documentation no receipts no identification and it was always in cash in hundred dollar bills  work two days later a second career would arrive to collect the magazines which had been repackaged and again there was no discussion no i didn't take a shoe no receipt no documentation of any kind the magazines in the three counts of the indictment that from a storage shed which had previously been removed from the storage of the storage shed because mr gonzales was concerned about police surveillance the store located in downtown toronto four blocks from border if there's any remaining doubt that evaporated when the stricken sollars was interviewed by the agents he explained that he did not have a federal firearms license but that he only dealt with u s citizens that he never sold magazines from the second or north store that to the court's pacifically stated that even where the evidence is sufficient to show the necessary mens rea of the government still must always meet the burden of proving the act israel in this particular case is the government argues that the  government argues that this was a legal issue in that case the government argued the very same thing the court stated in defense of the government argues that the question of whether the face if there's a fall within the munitions list is a legal issue not to do for the jury the cause of the court the jury beyond a reasonable doubt one side or the printing the court went on to say so here defendants did contest the prosecution's claim that the face of this fell within the munitions this category therefore it's different than the case that they had cite making it an issue so the court went on to say juries are capable of determining whether face shifters are specifically does it designed for military use with the items listed in the munitions list and whether they are exempt from the reason restrictions and due to whatever language is that it states although permitting juries to decide questions like these may complicate enforcement of our nation's export control regime the constitutional rights at issue which is the guarantee of due process the right to a jury trial and the protection against element of the offense to the jury i cannot by my by my own language of the attorney waive the government having to prove a specific element of the apprentice the you know like most of these kinds of and didn't have any other but the jury instructions said something about components that it not that it didn't ask whether they were in fact whether the jury agreed that they were in the munitions list or what components it only stated that whether they whether my client had willfully violated the statute by exploiting the that's what that's what i hear you saying that the jury well then i think still think that you would have had the latitude to argue each of the jury no he didn't willfully x or because components are not in the list why couldn't you have argued that to the jury well we weren't given that opportunity because the expert testified as a matter of fact as as an authority from the state department that they were in fact part of the munitions list it took away our ammunition when it came to that well but if you were to get assuming you were to get a retrial then the expert could still come on say they were part of the list c even if the court has to decide now or if the state department was to decide now that they are in fact part of the munitions list if this is a determination made next post facto at the time of the export my client did not have the benefit of this determination whether it be me now  what the government's view was that they're prosecuting people for exploiting these magazines to mexico and your issue is i really it's an issue of what the government's view was of the munitions well the the issue is not whether the government thought so the government may was no clear authority with regard to whether they are in the munitions list i'll just ask you one other question and that is if your client had no suspicion that what he was doing was wrong why why again why accept money and bundled in hundred dollar the requisite mens rea which in this case it's arguable whether he did know doesn't that cast doesn't that lend some credibility to the way the government would interpret this that a reasonable man who you say is not an expert on any of this song nevertheless it realizes he's doing something that probably against the law well his testimony your honor the time trial was specifically i don't i'm not a i'm not a cop is what he said he said i asked for id and in the united states citizens i sell it to them what they do with it afterward i have nothing to do with it that was his testimony now but again it assuming that that was not the case and that he did have the requisite mental state the first circuit specifically stated that that's not it you have to show that it is in fact did the guilty act occurred it's just it's analogous to thinking that your rifle is under the under a certain length and selling it as such with a guilty mind and when it gets caught it isn't it's actually not be there below that specific length the court said well you had the requisite mental state but not the act this race was not completed and that's the same issue here ok thank you