asking the court to find that it is not because it does not require the use or intended use of someone else's identity document i want to note at the outset that the department of homeland security at the involving moral turpitude but both of you have taken up in some form or fashion it is well whether this is subject modified categorical approach analysis why asked him to consider that yes your honor i believe you should it because that's most in accord with chattery doctrine the issue has not really been briefed by the parties because it's not raised by the b i a decision which is the decision being reviewed here and there's not much authority for it one way or the other the immigration judge it's true that is you folks didn't spend much ink on it but assume for the sake of discussion here for a moment that we thought it was subject to the modified categorical approach that we thought that the list of a numerated crimes associated with the statute set forth alternative elements not alternative means if that's the case is there any question legitimate question that can be raised that bank fraud is not a crime involving moral turpitude bank fraud itself or no your honor but ok so if it's if it is an element if bank fraud is an element of aggravated identity theft under a divisible statute interpretation why isn't it just plain on its face that we're dealing with a crime involving moral turpitude under the modify  well they have to prove a violation and slides don't see he plead guilty to aiding and abetting so if it happened he said it happened he agreed to under oath it happened right he was sworn there was a call with said it happened and the aided and abetted why isn't the game up yes your honor the government has suggested that at a minimum we would need supplemental briefing if that's the case then there's no efficiency gain for this court to answer it that we're under the modified categorical approach and bank fraud is an element and he's admitted to that element what what else is there to be there for the b i e to do except say yes son of a gun thank  predicate felony is an element well yes of course it's but the question of divisibility is whether the jurors have to agree on what the predicate felony was and there is no authority for that one way or the other  you need to have intent which is a higher mens rea than merely knowingly so i am the government has argued that the predicate felony language denotes some sort of intent requirement but the documents somehow now in u s few williams this court held that that that the during and in relation to language at least in a firearm statute does not focus on the actor's intentions the court said quote instead of focusing on the defendant's intentions and quote we look to a broader totality of the circumstances test to see whether he could have been bold and to commit the crime by having the firearm whether the firearm could have helped with contingency or whether he you know whether there's any relationship at all between the firearm and the crime so it's not a strict relationship of intent which is what matter a certain requires certain a certain it doesn't really deal with this at all right because it doesn't have that during in relation to language that's what the government has been pressing on us is that you you in your argument seem to be just blowing past the fact that cerner was a straight up position ition this is not a straight  said the during and it relation to language doesn't denote an intent requirement which is what sort of requires their nd theory is that this stat don't require this well underlying crime rate so you mate you may be correct when you say it's not categor disappoints on what the underlying crime is but if the underlying crime is something that is an element then the and then the specific intent issue is is in there just as you big knowledge if it modified categorical approach and bank fraud is what he's pled to that's that's the end of the analysis and you know i don't think that the mens rea of this crime is knowingly and so i don't think you can import and intent requirement through the predicate felony because the language connecting that to the overall crime is looser it's not an intent requirement that the government well you seem to be backing off what you acknowledge before you say now that even if this mod felony and so you don't have to intend to use the document well you have to he didn't mention that i mean i'm not sure how do you get to the aiding and abetting something if you possess it and you have no of so if a crime is aiding and abetting then we sort of ignore the and coa character of the crime and we look to the underlying crime so this this case is a little complicated because we have essentially two crimes and there's a loose link between them so the question is do we focus on the overall crime with the plain mensura knowingly or do we focus on this predicate felony which it's loosely related to i'm arguing  case that this is it the visible statue and if it's the visible why are we arguing about a categorical approach why are we just dealing with who has been modified and asking the question about bank fraud we can go we can go straight to modif you i know this might be hard but you may need to slow down i'm not sure whether judge mckeon chief judge smith there have been probably many drama of your dropping out i think your might sound of your voice is traveling so fast it's not if you can hear me it's as if we're trying we're arguing for the broader picture of the categorical but there's a court can't get to the modified categorical approach in their skates so again in terms of interpreting the criminal statutes the court shows no deference to the board's decision or their analysis in these cases so if the court wants to go to them on jump ahead and skip categorical that's totally fine if they can do that brief we might not have but there's a great  it's possible to look at the list of felonies and see stuff that kind of makes you wonder well maybe that's really not a crime involving waltrip to listen are there examples in there where it's you know if lenient but so we are arguing for the broader bigger picture or of a generous sort of holding with regard to that statute but there's no reason that oh all right but let me get it mr o'connell isn't the easier path for you for lack of a better term in this case application of the modified categorical approach recognizing that the justice department the government may well want to go down the path of broader significance in this case isn't my suggestion of modified being the easier route much easier credit and again yeah if the court wants to apply to modify it at all or prosper the easy one will take it absolutely especially given the severe nature of this just from scratch and it seems like that's a more sensible approach to because some of the things that it appears were argued for here or maybe that the board's interpretation in the single judge opinion would require is to say use that  think we're having some considerable audio problems here at least i am with respect to hearing mr mcconnell both of my colleagues have been coming in loud and clear but mr o'connell that is breaking up right now more miss arguments essentially it's a conception that is inherent in stealing someone else's identity and then taking that identity to perpetrate a serious felony which is a new very by congress under that statute so if you prohibitum the christian was talking about this is in say because it is this your that the nature of the crime is you're taking someone else's identity and you're using it to fool someone else into giving you what you want i would i would disagree that it's not just the the predicate felony it's taking someone else's identity some human beings identity that you know is not yours and using it to commit that felony so it's the combination you are going to much board's decision in this case so we can't can't kind of go off on our own and sort of argue whatever we want to but again in terms of modified the court doesn't owe any deference to the board so there's no reason to send it back they can just go ahead and hold whatever they want to hold because there is no deference owed under chevron or under skidmore because this is not a question for the board to address in the st instance so yes the court wants to go ahead and give us the way up we will absolutely take it if there's any subset of questions you still i mean mr stevens i apologize for the purpose of the opening argument we sort of assumed that the statue was divisible we cannot assume that the visibility is a very difficult and tricky inquiry and the question is whether jurors must know which particular predicate felony was committed the government has cited no authority what where or the other on that topic now the case that they're referring to i believe that they were referring to opus de has said that it violations and said to hold that each violation here amounts to a separate elements is consistent with the tradition of your unanimity or the issue is whether a defendant has engaged in conduct  supreme court decision answer the question you raise your honor i'm not familiar with that decision is not in any of the debris field is that an aggravated identity theft decision i know it's a continuing criminal enterprise but this is the and there is not here the case that the government cited lopez diaz i believe that's what they were referring to health that you do have to prove a predicate felony but that doesn't say that that jurors must agree on which one it is and the statute which is so perhaps some jurors think that the predicate felony was bank fraud some think that it was credit card fraud but they agree that he committed a predicate felony and therefore we can convict him that that would mean that that that th divisible by clear and convincing evidence so we can't assume that this statute is divisible and if there's a lack of authority as there isn't this case we can't assume that it's true mr stevens they don't have to prove by pure clear and convincing evidence this is a legal just put to you he's explained i think i don't put words in his mouth but how they sensibly need to be considered to be elements and i think that's a big that's the question you've got to you've got to wrestle with if the court is to read a statute with the assumption that congress intended each of its terms to have meaning which is the rule we go by why isn't it the case that when this statute says you have to be an aggravated identity theft you have to have done this in relation to in furtherance of one of these a numerated felonies one of these things why isn't that a way of saying for congress to say it's got to be done like in pursuance of one of these things therefore an element merely listing an alternative means of violating the crime doesn't signify that they are place to be one thing if well credit card theft ok arguably that's related to bank fraud because a bank may well poppy's the issuer of the greater fraud but it's not cap and just of those kinds of trends because you've got the shovel documents and those kinds of things legal principle now numerous times but i'm not sure that it lightens as well but i think the enlightening decisions as to divisibility are the supreme court's decisions and matters and i don't think that the government has the authority they need to show divisibility under those two decisions all right mr stevens i think we have exceeded your time and i think we understand your position thank you very much and thank you to both of counsel thank you for indulging us with the difficult media that we are required to use for argument these days or at least most of them will take the case and revised and i'm going to clear brief