step back at this point to make clear a few of the premises of our argument one and the government didn't dispute this from the beginning is that the mens rea of california drug statutes drug trafficking strike statutes is over brawn because even in the california jury instructions one need not know that this substance is controlled they just have to believe their possessing or trafficking in a particular s you say that your opponent said that but is there any case law that you can cite to that indicates that the statute is overbroad with respect to the mens rea element well that would be that's what you're trying page thirteen to show that it's a problem they haven't contested that issue but to give a sort of an example in my brief i had a chart on page twenty in the opening brief of what it would what it would be to be convicted of drug trafficking in that example of cocaine in california one person on the jury can believe that that the defendant knew or believed he had cocaine ok that's generic that fits that's a federal not under federal law for whatever reason that juror believes that and they find him guilty that that juror votes for guilt based on that theory and then finally there's a third juror who says he may not have known exactly what substance he had but he knew he had one of them that was control now that is our understanding of california law and understand california law that the government has not challenged and that is the over breath when we come back to where we are today which is with a conviction for drug trafficking that is has an illegal substance but the specificity of that is not required so for example if somebody has cocaine and they think it's you know  marijuana before january won or whatever that that's enough you say it's not they need to have some specificity in their knowledge about what they have is that right or position is the defendant simply under california law and this is consistent with the supreme court's understanding that fadam just has to know or believe they have a particular substance that is not what my colleague has indicated but but it seems to me you're trying t burrow down that they have to have a knowledge of a particular kind of substance of you know one versus another not just that it's an illegal substance well i don't  california under the case all of that has been cited has and adenike all understanding of the mens rea the problem with california law is it that mens rea can mean you thought you had something like cot an example in california law isn't controlled under the federal controlled substances and if it turns out to be a drug like cocaine or methamphetamine that is controlled federally the government's argument as well then they are deportable is not just deportable that horrible with this example where someone thinks they have caught but they actually have cocaine i had understood that under the categorical approach we had to ask whether this is something that's ever really going to occur whether it's just a hypothetical possibility that is not really ever going to occur and i tried to look for such a case and i couldn't find one have you do you know of any case where someone thought they had one of the few things that illegal only in california but actually had a federal controlled thing and this was an issue person believed they had one substance and not them but in all of those they were illegal under federal and state i mean this is like california has i mean i actually don't know for sure how obscure caught is but it seems like california has a few obscure substances it seems quite unlikely that some is going to think they have this obscure substance when really they have cocaine or marijuana and so this it is a possibility and it is a i mean it is that there are radical possibility given the overlap of the two laws there's a little extra but it's like a very obscure extra isn't it well the government would suggest that that's only the beginning of the extras the government has argued and it's brief that states or on a regular basis expanding their schedules beyond the federal schedule that these are the incubators of experimentation and how they control certain substances that the federal government hasn't reached yet so the government would disagree and say no these states schedules are ever expanding and i think the problem is we have language for the aggravated felony definition that came into existence in  drug trafficking offense even though i didn't consider the mens rea element but by failing to consider it the negative pregnant or that it's not necessary and that's something we have to deal with well unless i get i would disagree or honor i think unless an issue of them well let me just take those are those all the legal those convictions illegal well let me take a recent example this court and how they view florence considered an argument that washington aiding and abetting was overbroad there were cases ninth circuit cases that said that the particular washington state drug statute did issue in that case qualified as an aggravated felony however the issue was never presented of whether washington aiding and abetting which is implied in every offense is overbroad in the court held that yes in fact those other cases are overruled that those other convictions would essentially remember who was in that panel i judge a scale and wrote the opinion i was the attorney of record on the it's yes the court has to confront the new issue and determine whether this would still remain an aggravated so so from your perspective rent on even though it discusses if you will be elements and does not include mens r true because you didn't consider the mens rea element the fact that they didn't consider it but they nonetheless found it a drug trafficker and i gravitated felony it seems to me it's rather strange should just say well suddenly we have a new element in here well my best case for that your honor would be the floor as i can write a twenty eight j with that particular language in it and i see my time's running out and i appreciate the time i was given by previous counsel but at i would like to get to the concerns that we have with the government's proposed position here which is that those cases would be irrelevant as well because they say if someone has been and let me get their own language under their reading this route one requires quote only that a crime have as an element some sort of commercial dealing not even a list of commercial dealing and to continue the quote of a drug that quote in fact turns out to be federally control drug was involved here if the person suffered a conviction under a particular state just look at what drug is involved in those a lopez under the government's preferred reading would have been unnecessarily use resources but of the questions of my colleagues th reference to a generic definition our position is no matter how much scrutiny this court gives to california's mens rea for its drug statutes it is absolutely in step with the majority of states they have the burden of proof proof because it's a thirty twenty sixty motion your honor and i believe in the united states versus brought us over out of the twelfth footnote it's a case cited in one of the briefs they're the ones that are bringing the motion to dismiss and so for that fundamental unfairness prong proving a due process violation and proving prejudice but our point again is that california i mean if you're well i'll have to look at you say again where that the noted it seems like if you're trying to have this heightened penalty because of this aggravated felony it should be your burden of proving a due process violation or purges so from that we read burden of proof but the the other point that i just wanted to make in closing the owners of and you know i know they really at a time if you want to give another minute twelve twenty seven which makes deportable any alien who at any time after admission has been convicted of a violation or a conspiracy or attempt to violate any law or regulation of a state the united states or a foreign country and this is important language relating to a controlled substance as defined under twenty one u s c so you're encouraging the government to remove your client no your honor i'm challenging the he was deported as an aggravated felony carries much more significant and lasting impacts and then deportation under this provision and that's why it's important to get this issue right if the government's argument is correct this is the language congress r t knew long before demanded and created this route one to use to make sure that all you have to do is see that the individual was convicted of a state offense and that that state offense related to a particular controlled substance under the federal schedule and do you think it's their burden to prove that or your burden to prove that it's not that i think it's what we have demonstrated what we what we have argued through this case is that whether you read this isn't as a method of statutory analysis or whether you question of law doesn't matter his burden it is that basically your answer on that well this is your question of law and we don't have to do a fifty state survey if our position is correct because what we know is that congress knew how to make it relating to a controlled substance where you just look at the controlled substance instead they said in the list of trafficking offense and i don't want to can you explain to me as a last client we always hear that the congress knows how to draft statues and that they know what they're doing i've never seen much evidence of of where they have done that with the statue where they knew exactly how it's going to fit well it might be best done over a beer and explain mind all day right off of that but for just one brief thing is that the courts are required to to interpret these statutes is the court's burden really to interpret these statutes however congress came about getting to them this is a very hard one and i'm not even necessarily sure that the government i don't believe the government has the best position but lenity would lead this court to adopt the position here and i just ask you to look at twelve twenty seven eight to be one and compare that to what the government says should apply here f require men of a particular kind of men's rights or something like that but you also seem to be arguing that the word illicit imports that particular kind of men's right what's your basis for that interesting point judge rake off what illicit trafficking is and my understanding is that you have to be engaged in some illegal conduct and the debate that we've had with the government is that illicit trafficking has to be human begins is that illicit track thinking in a controlled substance as defined under federal law means that we have the generic offense and we look to the federal for that and many states like california overbroad to the other questions by my colleagues thanks to all counsel we appreciate the collegial way in which you're doing with one another on this important question and we will decide this case which has just been submitted as well as the previous one and hopefully provide some answers the next case today for argument is usa versus walt