tank low for forty seven after twelve twelve twelve thirty one twelve thirty three and in that chiang tang low case there was a missing mens rea element as it pertains to the eight forty one a portion of the conspiracy allegedly count one that particular case talk about aiding and abetting contains four elements there's a knowledge element just and intent element and also talk about a twenty one a requiring the elements of knowingly aiding counseling procuring all those things that are wrapped up in the aiding and abetting theory of liability and additionally that argument costs about the m s my show beyond a reasonable doubt that any defendant acted with knowledge and intention of helping in this two where they talk about the elements necessary for a conspiracy to do an eight forty one a violation counsel you agree that the plane air rule applies in this case and there was no of jackson to of the evidence and error and jury instructions is stark so basically we're really looking at something that is really clear on its face and has a very significant adverse impact on the administration of justice the evidence in this case seems to be almost overwhelming how can there be prejudice which case your honor that the evidence is overwhelming i will concede with the eight forty one t two aspect of it the pseudoephedrine having knowledge or having cause believe that it will be used to manufacture methamphetamine but as far as the actual aiding and abetting of manufacture methamphetamine i think that when you consider the fact and again i'm relying on chang tang low there was to manufacture methamphetamine was sufficient to cure the instructional error that took place and after case here you have the instructions read knowing or as opposed to knowing and knowing or having a reasonable cause to believe it to federer and was used to manufacture methamphetamine so basically when you take that mens rea element and put that into the eight forty one calculus as far as proof beyond a result that is concerned you could have a conviction  herrera is with her face even though he had no actual knowledge that he was aiding and abetting the manufacturing methamphetamine jette if the jury found there was result cause to believe that he could have manufacturing methamphetamine i'm sure have a  problem reversing on instructional error when the judge was not alerted to the error as in pretty easy for poor phrasing to slip into instructions there were viewed for abuse of discretion and so far as their the form of the instruction rather than elements which are de novo and it's it's hard to see the injustice well that's why i have the pell council the higher burden i have to show plane error and i have to show it's highly probable the error affected the verdict and i feel it does because it's clear that the government counsel down below argued an either or situation knowing or having original cause a belief that this t a veteran who's going to be used to manufacture methamphetamine defense counsel sol is only argument was reasonable doubt on the bench re element what's missing in this particular instruction and the judge actually told the jury as to count one the governor's not required garratt knew his actual unlawful and i think that was somewhat misleading because i think in this particular case when you're charging this man with a conspiracy to violate a forty one a you have to show knowledge that he knew that the acts were unlawful i to people that make meth out of there has to be in a tent a specific intent to manufacture methamphetamine as well as knowledge that it's going to be used to manufacture methamphetamine it doesn't matter whether you know a seven fifty two when the judge was given the instruction on the a portion of the conspiracy count one he should have thrown in language requiring proof beyond a reasonable doubt knowingly and intentionally procedure at a separate b r d instruction he says everything after the government has to prove it has to prove beyond reasonable doubt here's what reasonable doubt means i agree he did put the original doubt struction there but he never put the a tent intentionally and knowingly element instruction have a mental element in it the aiding and abetting instruction five point one does but it's not contained but it's true so if the jury reads the instruction that you can test and reads part a and they start saying around the table there g it says if he is going to bet cities outta luck and it doesn't matter whether he knows if x has knowledge that he's aiding and abetting or not it doesn't matter if he intends to aid and abet are not some other jura look at the aiding and abetting instruction and say no aiding and abetting is defined in another instruction and it does indeed require knowledge and intent that's correct but the  question what i'm asking you is even though the mental element of aiding and abetting is not mentioned in part a correct of the instruction on the seven fifty two isn't it mentioned in the separate instruction that was given defining aiding and abetting yes but in connection with other counts not in connection with count one it was not whatever it was however mentioned in connection has this mental element save this one where it was omitted is it not reasonable to assume that a juror would understand that the mens rea element was required even though it wasn't specifically included in that particular instruction i mean i can't i can certainly can see that's a reasonable argument but i think i have a reasonable argument that would argue to the contrary that the jury might not leap to that conclusion and especially with the nice circuit backing i have i think that chain t would eventually be used to a federal would be eventually used to produce methamphetamine in this particular case we don't have the n word we have the or word and i think that's how i get up to the level this plane error which i concede i have to establish because there was no objection down below and i think the or certainly like the prosecution burden because of this faulty instruction a jury could have found mr herrera guilty if they felt he had reasonable cause to believe it was actually be used to manufacture methamphetamine even though he had no actual knowledge of this to a fed rate that he had would be used to manufacture methamphetamine that's on mario thank you counsel i could of course arguments that are briefed but not discuss defense counsel pointed to a case that came out after the briefing was finished us vs well i would similarly point to the case in that case the defense raised the same issues that the defendant is raising here plus a couple of additional ones and issues that they did with respect to the issues of the defendant he's raising here which is one that there was an error in the co mingling of the aiding and abetting in conspiracy instruction and through that there was an error with respect to  commingling issue that the jurors in most cases could have extracted the general aiding and abetting elements from the during jury instructions on eating in about betting and then apply those elements to the allegations of conspiracy and that's  page twelve thirty and also i page twelve thirty rejected loz argument that he had to know that it was unlawful that defendant raised an additional argument that this defendant has not ra and that is where the whole discussion about knowing and reasonable cause to believe came up which i don't think is put on this case united states versus wherever i