in your brief you had some interesting hypotheticals of someone who comes into the country for a minute on vacation and somehow is brought within the sweep of the statute but i think it's pretty clear under our law that if you have to prove that it's vague as applied to your client's criminal conduct correct correct and if the conduct is at issue here is that the circumstance of someone who is being accused only of unlawful retention united states for a brief moment passing through if they were they were citizens they have resided here it's a very substantial connection well your honor it's and it's not so much about just frankly the the children's connection to the united states the the reality is the statute applies to citizens to children who are citizens or non citizens it doesn't make that distinction at all so it's not their citizenship that makes them subject it's frankly the idea that their presence in another country that is that unique i mean in most of these cases you're talking about an abduction obviously if you're that the child from united states is clearly covered by the statute here where the statute coverage retention simply says well if a child has been in the united states at any point for any time you're subject to this to this a kidnapping statute even if your conduct is not connected to there's no nexus between your conduct and their presence in this country that here it's really i mean i think it's a question of that element is here and it's not we're not that the claim is not that the statute that all elements of the statute are the weight for vagueness but the presence for acquirement the idea that your children's years mislead if it says or he doesn't when he said you know it doesn't say abduction and retention it says abduction or retention so why would anybody looking at that i think as long as i don't to these children this is not going to apply to me i don't understand if it says or why they are getting it may be factually most of these cases include abduction but that's not it doesn't make it they just because most of the time there's also an abduction is what what wording of the statute is it's not a question of saying that retention is not covered by the statute or that it's not  it doesn't apply to cases like this is only about the only involve the attention it's getting to the question of why is there what's the noticed problems here and when you have a situation that does not involve an abduction it's not it doesn't mean well you wouldn't you know you don't have noticed that that retention is unlawful it's that will you have noticed that for attention that occurs in a fashion that is unconnected to the presence that the back would you have noticed that even this that's it's not a question of whether or not if that's that you had if you had two children united states or one thousand and eleven years old have been here all their whole life your wife go on vacation overseas the husband unlawfully takes them up overseas and the white can't get them back she comes back to the united states it takes her a few years to go through the family court system to get an order to say you know i should have those children back in united states bring those children back produce them in the united states your argument would be that defendant would have no idea that he could be subject to the statute because it wasn't unlawful to adopt them into anything in the united states to adopt them and it took years before he was told that he had to bring them back well i mean what the the the potential for liability of some kind in the the family court assuming that the court can get jurisdiction that he's you know back in the united states or what have you there might be some form of liability but identified as being problematic there was no adoption it was unlawful to take them out of the country in a long time when all went by before he was told that he ought to bring them back it has all the elements that you're saying make a big well part of what makes i mean not to sort of parse out the factual presence in the united states and the wrongful conduct when they leave the country in two weeks after they leave the country the wrongful behavior becomes a cursed here there's years of no awful behavior it's not just the years between the incident and the family court proceedings it was years with no unlawful behavior and that is different from a situation where you leave the country two weeks later you you retain them and in the end it takes a period of years for that's to be pursued it's this is really a very unique search i'm stanton it's in this circumstance that rule that just says if they've been in the united states for five minutes or five years and it even if that's not connected to what you're accused of doing that's unlawful that that's still you just added the term the physical item of the passport i mean i don't have a passport one of the things you have is it is you have is you have a number and that's valuable because if you lose your passport having the number is really going you guideline doesn't refer to using information from the past for what it talks about is obtaining or using a passport a passport is a tangible item yes it has information that you can get from it but  the way that the guideline is worded and again the way everyone using the same language initially interpreted using it is deploying something in here where it doesn't where it's clear he did not deploy an renewal does not mean that it's taken that application that he doesn't change the fact that the scene of the note doesn't change the fact that the guideline is still requiring use that doesn't saying that it uses construed broadly does passport means that you have used it that's it again it's at least in the know suggests something different the plain language of the guideline does not support that because it talks about a team or using a passport and in that context where again a passport is in fact item it's a tangible thing using the passport versus using you know information that can be obtained from that is not the same thing that's not obvious from the language of the guideline into the its most basic definition is talking about deployment of the thing into the extent it's going to be interpreted as well rely i'm relying on the fact that i have a driver's license yes i'm relying on the information from my driver's license renewal of it but it doesn't say that it is i read that nobody will argue somebody who will without presenting the passport somehow some it's an application for its renewal i think under that circumstance anytime anyone it would be impossible to be guilty of this offense without having this enhanced not apply because if you're applying for a renewal of course that presumes you have already or you had previously a passport and so if if the argument is that well clearly to apply for renewal you must have had initial passport it has a number in some way you rely on the fact that is prior passport existed and it really doesn't because it's not a new way  prior application and if you use means that you're relying on the fact that this prior application existed and it has a number and it has information if it uses mattoon income is that in every attempted renewal case that will now hear from the government  because it's on contestant that the of have contested of the appellant waves any jurisdictional challenge to the fair family court's authority to issue orders concerning the children and that he was present and aided by an attorney at a number of family court proceedings including the yemen and he did so with the intention of obstructing the mother's rights to her children it's a basic proposition and it's fundamental to the rule of law that quarters have to be complied with probably  the st element of it which requires the kidnapped child and retention taste have been in the united states is not big in light of those uncontested facts and the fact that this is a retention tape case shouldn't change that analysis the statutes clear on its face there's no distinguishing between removal or retention and both actions are equally considered to be kidnapping under the law and it does not need to provide a timeline for how long a child need be in the united states to trigger the application of charges under the statute but it that's not necessary to pride clarity the way people were to law enforcement concerning the enforcement of this statute because the conduct prohibited by the statute is entirely clear on  face and it means what it says it makes clear that where a child who has been he needed states is kept outside of the united states with the intention of violating the other parent's parental rights  while grants rights they can be held criminally liable for that conduct the requirement that the child has been in the u s serves to ensure that there is sufficient nexus between the wrongfully retained child and the united states it doesn't need to be linked to any kind of timeframe to adequately describe what could be criminal under the statute let me ask you this you know this a situation in which the child was retained but the remove all from the united states was lawful and exceptional in any way wouldn't would retention require the the the the defendant to have kept the child  in another country in violation of existing parental rights and here i don't see who has custody i don't think there was ever a custody agreement i think there's actually  his being with the children abroad was was a violation of anybody's rights and he didn't really have an obligation to bring the children back and the  obligation pursuant to existing parental rights to bring the child back would seem to suggest is very wrong with his retaining that he did have an obligation once the family court to which to whose jurisdiction he had subjected  himself issued an order requiring him to return the children to the united states it is it is the order or that that that made the retention unlawful not not any existing right order triggered his obligation to return the children to the united states and just like to draw the court's attention briefly to the government's supplemental appendix two hundred and ninety two it makes clear that the defendant and that the appellant did in fact reference his previously issued passport by physically presenting the physical document i think as the court noted in our society we frequently use important identifying numbers in a way that are divorced from their underlying documents all the time you can use your credit card to purchase something by just providing a number or an expiration date you can use your social security number without providing the card by just entering that number in entre form so it is consistent in the government's view with the ordinary usage of the word use just  because they're always going to use the number from the previous passport that's a requirement in order to get the renewal so this is going to apply never single fraud or no case to see and would apply i don't know that you would always inherently have to use the number if you don't know the number of your previously is your passport for some reason you might make a representation that you've had one by providing your name and maybe some other identifying information so i don't think that we can assume that it would apply in every single situation just very briefly on the issue of whether the district court if the court would like to hear properly applied the three level enhancement for substantial interference with the ministration of justice under the guidelines in connection with the kidnapping convictions fleeing the jurisdiction violated another court order and also rendered the family court court unable to do anything to force the city's order and i think his argument is foreclosed by the court's decisions in a mirror and his son which although they involve both abduction and retention the important aspects of those pieces as concerns the application of this and he has meant and the fact that aligns them with this case is that those to those appellant those defendants subsequently retained the children outside of the united states and violation of court order and the purpose of the retention in those cases was just worth the application of the family court orders that were issued in favor of the victim parents which so to hear that's exactly the position didn't ask use his passport by reference to that number you just for one point on the back with regard to the the void the vagueness of the statute and i think the circumstance of of this case really do highlight the lack of notice and with regard to the fact that it was only the family court proceedings that triggered the unlawful action here that meet this awful the fact that he that mr tar you know conceded to jurisdiction in the family court when what was it issue and what was the basis for jurisdiction in the family court was simply residency the the the proceedings did not go into it was not based on the children's presence obviously they were not present when this happened so again it highlights the fact that he would not have had notice from this family court proceedings low because this was only retention that he was going to be subject to the statute with regard to the use of a passport and whether or not it could be reasonable to interpret use as using the number or using the information in fact that is not the common understanding of the word outside this this specifics not mario and with regard to the idea that people can be charged with credit using fraudulent use of credit card numbers and those types of things th statutes almost universally actually say things like you are subject to an offense for using a credit card including it's numbers it's information that type of thing in common understanding of used it doesn't rate your usage using the fact that something exists and that has information and so that's not sort of the standard here and again the words of the guidelines itself don't support that interpretation with regard to the substantial interference in mr and also in fact did not interfere with the family court proceedings which went to judgment his additional flight whether it's wrongful or not did not actually result in substantial interference which is what required under the guideline i mean it has been at west point if if he was here could be found a contempt he could have been jailed and put it that could have resulted in the children being brought back right isn't this he said that there was it you know it wasn't the force that judgment  did it's not i mean that's a sort of i guess a factual question as to whether or not that would have resulted in the children be mature and sooner but it certainly did not interfere with legal proceedings in a sense of preventing or delaying the hearing that the judge and again the only immediately proceeded to judgment without his presence so it didn't interfere in that sense and i think the idea of whether or not it would have resulted in the children being returned sooner than it's i mean in some ways a speculation but as far as the things