believe the court daniel girds represent mr charles in this appeal initially i have a housekeeping matter on in footnote two of my brief i indicated that there was a large exhibit a too large i want to start with what has been received by the court last and that's the government's response to my motion to strike which actually touches on the merits of the underlying argument as well it in that response the government cites this nine hundred eighty two case from the ninth circuit townsend versus columbia operations in support of its argument but that's completely in in it in the towns in case the district court actually made the documents that were issue a part of the appellate record pursuant to federal rule of pella procedure t n t which permits the district court to correct modify the record let me ask is there is there any dispute that the particular records that are subject to the motion to strike were submitted to the district court and considered by the district court in reaching its decision yes is there any that's granted a motion to strike or riff on appeal refused to consider documents that were submitted and considered by the district court i think we have i huang and why don't you think the government has also and i don't know that we have we have been able to find such a case one way or the other the the district court here had these documents available in the government's reply memorandum at sentencing one week before the actual sentencing in a footnote the government indicated that had it had we just received documents and it was submitting them to the probation officer if the probation officer has them the district court certainly can get to them if it wants to be but in this case both at sentencing and in the memorandum submitted by the government after since the government indicated that it was not going to rely on anything else it was not submitting anything else in evidence and that it was re if says clearly that while the government clearly sees me the district court obviously relied on these but we know that's not true we know that's not true because the numbers that are in the order in the amended judgment are different from what was requested in the documents that were submitted they're not the same and confusion both have said they were not submitted and you said they were submitted so which is it where these documents submitted to the district court or no they were not submitted i don't know whether the district court looked at them or real or it's clear that it didn't rely on them because the documents submitted to the government not offered in  evidence show different numbers from what the district court actually ordered in its amended judgment of the documents that are the subject of your motion to strike were never submitted to the district court correct they were never offered in evidence correct but and in the context of the sentencing proceedings i would say that normally there is not a dispute about that restitution the documents are not submitted to the district court as evidence because the parties agreed and if there's an agreement there's nothing for the court to take evidence of but we have a statute here the mandatory victims restitution act this is if there is a preponderance of the evidence so we don't have that in this case and we don't actually know from the district court how it decided what it decided because what we have is just an amended or an amended judgment excuse me with the amount contained there in the amounts in the the amended judgement conform precisely to what the government asked for in its memorandum it said you should or did this much to this person this much to this anybody i have a question about that the documents seem to suggest or do indicate that the victim or the victim's mother submitted formal requests correct one of the  your position is that an ok county never submitted any request on its own behalf drew so is that the dollar amounts that the court concluded we should go to a no county came through the dock it was or obtained from the documents that the victims the minute yes and if this is a little unclear to me even now because of course i was never able to question anybody about this i never objected to them being introduced because they were not never offered but there is there is some documentation that accompanies i believe it's the mother's statement and it's a no county whether that twenty nine hundred dollars was appropriate whether it was actually proximately caused by the defendant's cause of conduct in the commission of the offense because we never got to an evidentiary hearing because the government said it in want it's there was going to rely on the evidence at trial and that's what we're stuck with and the evidence at trial does not prove th the argument about view this count twenty three the conviction for committing one or more of the instant offenses while being required to register as a sex offender by the laws of the state of minnesota we have to start in analyzing that from the bedrock principle that criminal statutes are to be strictly construed this court is also pointed out that it's also important that a federal statute of national application receive a uniform construction and normally when we're talking about what a statute means and how to construe it strictly or otherwise it's an issue where congress has not defined a term or a phrase and we often turn to well what's the common law meaning of that and will and import that into congress's intent here or we talk about the fraud statute that is all over the place and sometimes quite ambiguous here we have an actual very clear was a definition that congress passed we know exactly what a sex offender registry is in very very clear definitions and in congress congress it said first that this is thirty four u s c twenty nine one two is  each jurisdiction shall maintain a jurisdiction wide sex offender registry conforming to the requirements of this subchapter and that's what a sex offender registry means it means one that conforms to the requirements of that chapter and then it goes on to define what a sex offender registry is it's us up even a national sex offender registry which is actually it's not a separate history but one that is a a  and i think it's undisputed that it it includes folks that wouldn't be would fall under the definition of sex offender under the federal law troop so how does that affect what the jury found here that there was testimony in the record that the maybe it's not accurate but the predatory offender registry is the same as a sex offender registry i think there's no dispute that his prior conviction would be a sex offense under federal law so what do we parse out the error there in that instruction or how the jury had to find well the problem is that the government charged the wrong thing i suppose to what would they didn't prove up with the charge is the problem because they had to prove that this young man mr charles was required to register as a sex offender by the laws of the state of minnesota and he did not have idea that there's just no minnesota sex offender registry that it's called something different that's more inclusive so that nobody from minnesota would ever be charged under that statute well unfortunately we have as we have a collection of state laws that all defined there is some states may have a registry some place may not have a registry some states have registries that they conform to the to the federal definition some don't like minnesota so it is true that there is a class of founders in the minnesota register are required to register in minnesota who would qualify if it were in fact a sex offender registry but minnesota's definition is much too broad therefore proving that he had to register as a predatory offender in minnesota does not prove what congress meant the element of this offense to require it and so the government did not prove that and if if we accept just any definition of well that this is close enough then we end up with the uneven application of this federal law which should be applied evenly and in the same way across the united states in completely different ways and people in one state may not have to register at all because you're only required to register in the in your own jurisdiction where you reside and sometimes in the the jurisdiction of of conviction it i don't know what north dakota has but mr charles resided in north color why they didn't bring that why did they didn't bring a different charge go twenty three i don't know but they were certainly well aware of the deficiencies of the minnesota registry i have a little bit of its order for restitution this court is correct there i have found no cases where the court has refused to consider records that were in front of the district court and all parties and you answer them were they submitted to the district court they were already part of the court's record because the court in fact submitted them to us and the other to the district court get them from their probation officer so they were sent by the victim and the victim's mother to the probation officer and provided to the parties yes the probation officer sent defense counsel and me an e mail indicating they were being provided at the direction of the court so all parties had those and relied on them including the court c thirty six sixty four and it's a paragraph or after reviewing the report of the probation officer the court may require additional documentation or hear testimony so those records were before the court were before all of the parties so this is unlike some of the cases cited by appellant where records were produced after an order from the court or produced only for appeal in fact these courts these records were relied upon the court was prepared to enter an order by the parties in their post sentencing restitution submissions to the court so they were fully as part of the record i think the point of her best practices may have been to to actually have those be additional exhibits but because they were submitted to the parties from the court there was an assumption that they were court records are part of the flow is victims to probation probation obviously part of the court there's a moblie shared with the district court and then the court shared them with the parties and if you look at the appendix that we have submitted on page one you'll see the cover mail where the probation officer in fact indicated in the mid in them to the parties that she was doing that at the court amount for a no cook county and then there were subsequent observations by victim caml and her mother for additional costs relating to a telephone and transportation which are covered under the statute did a no could count submit a restitution request it was submitted through the victim and their mother who were working with an organization called alexander house and i know cook county and so they were submitted on behalf of everyone so what does that mean that  was submitting a restitution request through the victim what does that what does that mean it seems to me that no no ok county if they have a claim for the cost of the treatment for example that they would submit their own independent dollar amount that they were owed the very well could have i am independent we have an obligation to do that to seek restitution in  my reply a sentencing brief filed before sentencing i indicated that there would be a third party restitution to another county and that full amount there was never any objection to that nor was there ever a request for restitution hearing  by the defendant it just seems sort of unusual i mean that there is a dollar amount in the i guess complaints or claim against the victim's mother but it's unclear to me whether or no cook county is on the hook for that entire amount or whether they're getting reimbursed from any kind of other agency whether be federal or state just seems a little dicey to know whether or no cook county actually is out that full amount or with their whether they're going to get other reimbursements that that's what seems to me is a factual matter a concern as to whether that's an accurate amount for someone who didn't submit their own documentation correct that case was presented by in the case agent was from an ok county and did work with a no county there's no evidence that seek recovery from any other so we're so didn't know county come in testified that this was then or some representative from a no cook county testified that this was the amount that we were out because of this there was no hearing on restitution or that didn't come in in the trial either in other words any of the testimony not from an open county and there was certainly testimony from the key agent from an open county that the testimony that the government relied on for restitution really relates to testimony from victim from the victim and her mother for restitution subject to penalty of perjury all of that was before the government front before the court at sentencing and at post sentencing so the government believes that more than it's burned by preponderance of evidence i really had no interest in bringing a victim back to testify yet a third time nor was there ever any request from defendant to have such a hearing or from the court which it could have certainly done so based on all of those commissions and i clearly subject to the abuse of discretion and there is none so there are any other questions on restitution i would be happy to cover those otherwise i will turn to the second count which relates to the a sex offender registration issue if that's what the court's looking at there was more than sufficient evidence the court heard testimony and the jury did from an apple valley police detective of the underlying crime that subjected the defendant to registration requirements in minnesota that w statute to minnesota's registration requirements and had indications in there that he had do attend sex offender registration treatment and they also heard tellingly from the defendant's own probation officer who said that they're  identical but they're not are they it isn't as i understood it and correct me if i'm wrong but that the minnesota predatory offender registry includes folks that would not be included on what the federal that i would have to go back and look at that specific question but the defendant asked his probation officer about that difference and he was talking about what his probation requirements were at the time including sex offender treatment and he said there was no difference raised yes there was a motion for acquittal but it was a generic one and i know the defendant has responded that the government didn't address its authority for that but i would submit just a generic  motion like that does not preserve a legal constitutional claim and i would refer this court to its decision in united states the mooney which was an armed bank decision in two thousand and five where he was claiming a sixth amendment violation and legal argument and so based on that this there never was an opportunity for this to be addressed had there been i think there would have been easier easy way is to make clear that the minnesota conviction of the defendant both fit under the minnesota offender earth prior mint and under the federal one and all of a statute requires which was consistent with the jury instruction and i would submit on the jury instruction that was waived the parties were all in agreement on jury instructions there was never an opportunity to address or correct any errors there and i there's not but the statute just suggest that you're it required by federal or other law to register as a sex offender there's no motion to strike is the record of it insufficient to support the restitution order no no and the i was going to point out there are two arguments one is these are even part of the record they can't be considered but two if they were it does not come close counsel says that well the defense didn't ask for restitution here it's not the defense burden to prove restitution it's the government's burden the district court gave it all everything i wanted it said whatever you want to submit is fine what is emitted was will rely on the trial court record there was the testimony regarding sex offender registry versus predatory offender registry this was was stand by counsel when mr charles was trying his case in this is one of those times when you cringe when he asked a question he doesn't know what the answer is going to be the answer clearly was wrong in a was framed exactly as  you understood a judge kelly the government should have corrected that there was another witness who testified about the registry and clarified that it was not really of the same thing as a sex registry so the record blow is a little ambiguous about what the witnesses thought about it but as a matter of law it's not the same thing and this is a sufficiency of the evidence claim it's not a constitutional claim it doesn't run into constitutional problems unless we fail to construe it strictly and it runs into due process issues thank you very much out of the court press a chair arguments today and reefing  cases submitted and it will be decided in due course