that let's call the first case which is number seventeen dash two zero six nine for united states of america versus the cure blue cross mr lake the ready you have fifteen minutes and you save some time for rebuttal we think your honor and may please apply the natural sensible and textual reading of the phrase takes any other action in this statute means only joint action action like conniving or conspiring the actions listed in the statute just before this phrase it does not mean individual action individual refusal to do and i'd like to begin with the text of the statute which for references on pages three and four of my opening brief and we're focusing in on two subsections a one a and a one c in short my argument is that subsection a one a covers individual refusals to depart whereas a one c properly understood covers joint actions and this court and other courts routinely employ canons of construction to understand the text that we're looking at here i pointed to two they used i'm generous and no associates which i think help they teach what common sense knows that words like people are known by the company they keep and if i could give an example if i began to speak of nolan ryan troy  other greats my listener would know instinctively that even though i said other greats i did not mean to include abraham lincoln or mother teresa great as they may be in their own right but the context in which i used the phrase other dictates what i meant by it and so here we use the same tools to look at the words that preceded the phrase the residual phrase takes any other action to give it meaning hear those words or connive conspires and it gives meaning to the phrase meaning specifically joint actions actions that require the involvement of another this court said something similar in mackay quoting the second circuit in other courts to say that when you have the words any or any other of the sorry other or any other following a list of specifics it must mean other specific similar to those first items and so here the government says that these can and should not apply it argues that there is no list and therefore we should not use these canons to interpret the text i disagree with that premise as i've noted in briefing but i want to also disagree and say that we do have a list what we have is what this court has said logic teach us that it means the same thing it's disjunctive association a or b or c means the same as a b or c it means any one of the three would be sufficient we do have a list  the residual phrase we need to look at the specific examples that we have i'm sorry did you mean to suggest that we have an opinion from this court suggesting that the to read the statute as  supreme court rejected that argument if i could quote briefly from what the court said it said in none of them was the point here it is you suggested or decided the most that can be said is that the point was in the cases if anyone had seen fit to raise  questions which merely lurked in the record neither brought to the attention of the court nor ruled upon are not to be considered as having been decided so as to constitute precedent that's our situation here i submit that this question is lurked in the record for decades but has not been raised so the fact that no case is decided the issue doesn't weigh against mr bill here read as a matter of trying to understand anyone see me as a matter of logic an alien may cannot to hamper his departure your view is that that requires joint action with another person because of the definition of cannot have the case the creation of the statute so an alien may conspire with another person to hamper his own departure i could see that do would you agree as a matter of logic an alien may take any other action designed to hamper his own departure without agreeing or conspiring or conniving with someone else just as a matter of logic i do think that anyone can take action i would submit that's what a win is designed to cover ye action designed to hamper his own departure he could do something alone to do that or he could yes ok and so i can imagine that congress would in reading the statute i can imagine congress wanted to target that for some kind of penalty your view however is the take any other action designed to prevent or hamper requires joint action so in your view congress wasn't targeting the says the action by the single the alien alone to hamper his own is that right you so i mean is that is that important for your case or for the government's case is there's no willfully there when the government if it wanted to prosecute under a one a it has to show willful refusal to depart under a one c it would have to should take any other action designed to prevent is that different is designed different from willful quite honestly in parsing it i think they come to close to the same thing we're getting at the intention in the aliens mind willful saying the pattern instruction in the circuit is willful more than intent is a term of art that connotes something more than just intent although the pattern jury instruction would say that it's an intention to disobey the law there's more to the instruction of that's the general gist of it and so my argument is in getting to your question what was congress is intent here it strikes me as odd to say that congress is intent is it to say to criminalize any action taken to hamper departure by placing that phrase at the end of a subsection that is third in the list of the work if congress is real intent was to punish any action taken to hamper departure you would think you would lead with that and say including but not limited to here are some specific examples it would be tucked away at the end of the search subsection this could be a very simple statute if that was the well the a one is about failing a refusing to depart full stop within a certain period to fail refuse and part b is about failing to take some kind of make some kind of application to travel day is about another wave of disappearing refusing to prove that preventers present yourself then c is about this hampering or preventing that it seems it seems like it's targeting a different kind of problem a different sort of act as a different sort of act you know i would submit that the point of c is similar to the point in another saturated within the same title eighteen section thirteen twenty four section thirteen twenty four criminalizes transporting aliens originally listed for ways of violating the statute congress later in the one nine hundred ninety s added a set subsection to punish anyone who conspires with aides or about someone committing the first four i would submit that we have a similar structure here now this was written before that change was made to section thirteen twenty four but my point is i think that's the purpose we're getting here is that even just goes along with connives in the common law holder definition being consent to someone else taking the wrongful action that's the point that c is getting in fact the caption of this statute is failure to depart not taking any action to hamper the departure it's if we look at the examples the court went through of the four these are examples that would fully prevent a departure if you fail to depart if you fail to get the travel documents if you fail to show up on the day of your departure you do not depart and i would submit that is the intent behind this statute in your view is the take any other action but it's not a null set right because you're saying you could be aiding abetting and betting that's correct and i think this court case last set supports the fact that you can aid and abet a crime without conspiring no my colleagues may have other questions on this but if they don't you may want to get to confrontation pause and ask just one more before we move to the conversation was what if it w subsection c said willfully takes any action or any other action designed to prevent or hamper which you can see that your client willfully took an action designed to prevent or hamper with the purpose of and if i could just clarify the hypothetical that's the sole text willfully takes any other book just like a b and b then yes i think then it would be much more clear in fact that the natural reading if that was the intent is takes any other action including but not limited to suck tonight in or conspire in fact that's the normal logical construction for such a thing to your point circuit but that which is why i take your brief to affectively concede that your client was willful and therefore would have violated a if charged today i don't know that i necessarily conceded exactly whether he would be good convicted under different subsection but here i think it's a close call moving to the confrontation issue it's an alternative issue because i believe it could win on the first issue alone but the make sure you get your argument out are we talking about r o a three seventeen and already three forty one i just want to zero in on the testimony that you you say is violates competition that's correct i would also point to the opening statements at three o seven but i think it's terms of the representative the word the court just used it is unclear exactly whose statements come in officer rolls at three seventeen says it's the airline captain who presumably as the flight is loaded and ready to go is in the cockpit and so if three seventeen officer rolls says that the ultimate decision is the captain's it was determined by turkish airlines the way mr bullock was acting he did not want him on the aircraft and so it's unclear the government can't meet its burden of proving it that's non testimonial when it can't even say when that statement was made or so just getting to the actual exchange mr weir is you're not mr  said no and then the answer is they denied his boarding that's correct the question what happened after that and the answer is as soon as he was told that he was not going he stood up on his own accord and walked back to the view that's in your view that's the problematic exchange i think there's also additional problematic testimony right there where again this is three seventeen officer roles testifies that the ultimate decision for an alien to fly on a commercial air craft is the think what is being done is the prosecutors through their witness is referring to additional supporting evidence not in the record now it's specifically says that by the way mr bullock was acting the captain made this decision that had to be related in way that's not just background information it's based on this fact right in front of the captain makes it is so in your view is the statement they denied his boarding that's correct is that conveying a statement i don't believe i think that's closer to the verbal act and that's what the district court contemplated in its lemony order saying that the fact that you were denied boarding can't come in but not any indication of what was said to us at two ninety three i mean surely that has to be right i mean if if a little law enforcement officer is testifying we took him up to the gate in question did they let him on the plane and the answer is he was denied boarding and i don't even see that as a statement that he we don't get we don't get to first base on the confrontation clause and i think with th what your honor if all we had is we were denied boarding i would not be raising this argument the problem we have is that in the opening mere minutes after the limiting order from the court the prosecutor began by saying turkish airlines doesn't want their customers to see this and then said you are going to hear that turkish airlines made the decision not to let the defendant on the flight it's an opening that's an opening and it's not evidence right it's correct but it sets the tone for what the jury is about to hear it tells them we are putting this in for the truth of the matter and the way i know that is one the prosecutor says you're going to hear here's the evidence and then two sentences later says that's it it's a very simple case this is your honour's was an outside evidence the prosecutor is aware of it would include pay to defend him but i think the more important he is why this was hearsay and not direct testimony that's at record one ninety seven where the prosecutor said they had a near line witness they plan to call that's that representative and the prosecutor called that person quote fairly hostile like a real hostile and then said he is quote having lapses of memory had the government done this the correct way brought the witness in mr bullock and i would have a right to cross examine that in the confrontation clause argument or alleged error even is either nonexistent or harmless beyond a reasonable doubt on the statutory interpretation argument the phrase the issue here con conspires comma or takes any other action as the district court found is a disjunctive phrase you cannot have work inspire or take any other action judge miller phone that it is a similar phraseology to what was in the ali case which said custom or custom or excise officer or other law enforcement officer so there is no list here the fenton argues in his already thought about uncertain alley that's also disjunctive right correct and this does merely because it's disjunctive does not sort of take a used to be generous and the other one off the table not necessarily but i think it's strongly indicative of  its its its in op ability here because you can have a list that's or over or sure sure but if you have you know multiple or or or right how many are we talking about then you get you end up with a list and i'm not suggesting that two cannot be a listen it could be a can certainly certainly but in the context of this statute i think congress was using connive or conspire sort of interchangeably the definition cited in the defendant's brief says connive loosely means to conspire right so i think one of the one of the definitions but i think what congress was doing here is making sure in subsection see that it was criminalizing not just the completed action or successful actions but a conspiracy an agreement to try and prevent one's removal acting in concert with another that's a familiar concept in criminal law you can be guilty of a substantive act or you can be guilty of a conspiracy you can be guilty of one but not the other so that is very very clear here i don't think there's any ambiguity that subsection c is meant to be a broadly applicable prohibition against allianz who fail to cooperate with their valid removal orders well what about the argument that that sort of ends up being redundant of a one a yes you're elite would willfully refused to depart sure and i think willfully is an important distinction there but more importantly a covers a very different circumstances a says you failed or refused to depart when you were given an opportunity to do so on your own that's why there's a temporal component there you top to fail or refuse within a ninety day period otherwise why do we have this ninety day period and it's consistent with immigration regulations that allow for self removal as this court is aware from its experiences with petitions for review of the i a e a matters not every alien who is subject to a final order of removal box that could have been checked it says if self removal pursuant to a particular c f r check here and then the deportation officer would sign off once once he's there five that yes the did the part  a decision from an i j maybe you appealed to got a decision from the navy appealed even further and get a decision from this court at some point that decision to leave becomes final you can have a good faith belie i may be i believe i can file another application for asylum a successive application within that ninety days which is one of the things an alien can do than file based on change country circumstances ok so maybe i've got that good faith belief and so i have a defense so that's why i think the willfulness is important you have to know that i'm supposed to leave and i'm to understand and you all can find me and and do something later on this trial date you know detection there's long as i can so that's why that's important this is a very different set of circumstances doesn't subsection a also require a completed act that is you actually have to stay right you whereas at the read see you can hamper right i would assume that position the united states would be that on the same facts if you'd actually gotten the defendant on the plane and removed him it would still be a violation of subsection c of so large you're not charged absolutely and  that i think goes to the confrontation clause argument as well as to why it's harmless what you take what you said earlier that you think that subsection c is clear what do you make of the word designed in the designed right and so it's odd that designed appears at the back like that after the last comma because ordinarily we would distribute the designed to the other three so it would read designed to prevent conspires designed to prevent or takes any other action designed to prevent obviously the last clause with those three make sense but the first two don't when you make that i don't know i  joint conduct that's possible under this statute because when you ate in a bed you attempt i don't think mr votes could ever be charged with aiding and abetting the hampering of his own will because when you aid and abet you are essentially attempting to assist another in completing a crime with the intent that that crime come about correct so this statute only applies to the alien subjects to remov so that that's my argument on that the replacement a comma may be a mistake for all i know i mean takes any other action designed well i'm not sure where he put a comma there well if he did takes to that i did try and derive meaning from this and it was very difficult to try and find anything in the legislative history that indicated clearly what wellman counsel opposite makes the rule of lenity argument we're going to do with that since you know you just said it's kind of hard to read well it's hard to read what what exactly can either means but i don't think it's subject to i don't think it's subject to of cheating is beneficial to him because the takes any other action is still meant to be broadly applicable and again you don't let me put it this way there are no cases where a alien has physically resisted  deep efforts to put him on an airplane and he was convicted under and they're all convicted under c i have not found any case where a would be would be applicable so the problematic result would be if you construe the statute as mr bullet physically resistant that that person failed to depart in say he struggled he thought he took action to keep from getting on the airplane practical question just as you wouldn't have this problem if you weren't dealing with private airfare private airlines with their regulations and their passengers why not put these kind of people on the military transport you're not going to have a problem that's true judging that that is what happened to mr bullets on prior to his ns but one of the officers testified that there is two responses there were no it would have had to force him onto even a military plane which they would have been allowed to do but this was the first attempt to remove him under this removal order and the officer testified that they try to give him at least one opportunity to go peacefully but the other the other response is charter flights are not available i wasn't that's the fifth time the charge a room are there in total but not under this removal order he had been deported many times before in history and then he did have a history but the officer testified doubt charter flights available you know certain times of the year and so it costs money to keep him khalid and detained while waiting for a charter flight and so for cost efficiency purposes the government tried to deport him on a commercial commercial flight and had he cooperated then you need to send two people around trap right correct in this case it was actually three but i i phones well i don't know i don't know the cost benefit analysis violation i stand in my brief for my arguments that there was not but i believe that this court can simply hold that even assuming there was error it was all harmless beyond a reasonable doubt in light of all of the evidence overwhelming evidence that mr boies took action designed to keep from getting on the plane designed to keep the agents from removing him from the united states me yeah and he has  not getting on that airplane he refused to get out of the vehicle he had to be physically all the out of the vehicle he struggled with three men trying to carry him flailing and kicking they had to put him down he made the statement that you can't use force to put me on a commercial flight you can only use force to put me on a charter flight so he knew exactly what he was doing and he knew if he put up a fight  officers would back down that's exactly what happened they put him down then surely he's taken to the detention center and he served with a notice of failure to comply i think the evidence is inescapable that he took action designed to hamper his removal and a believe i heard my colleague concede that the the testimony that he was denied boarding if that's all we had would not be problematic but i suggest that the testimony of officer that we were denied boarding even if the testimony of officer rawls is problematic that testimony is cumulative of the of the statement that we were we were denied boarding instance duncan pointed out i think the officers have to be allowed to explain maybe our president speak to this and you can tell me if they do was the crime under one a one c was it necessary i guess to show that he was denied boarding in order to prove the crime no boarding certainly flowed from his criminal conduct but his criminal conduct was the resistance with the intent to keep the officers from putting him on the plane and that's what happen while four years from the time sentencing so in terms of cost there was a much cheaper way to do it but that doesn't resolve the questions before the court i just heard opposing counsel refer to takes any other action as a parent article phrase i think that's the important point that if this is a parent article phrase tucked into the third subsection it surely cannot be meant to have this expansive meaning that any action a deportable alien takes to prevent or hamper is what's intended you don't throw a parent a because frankly if it's not completed the alien be deported there would be no prosecution it's not worth the government's time and money to prosecute someone for walking slowly refusing to sign their name things that may hamper in some respect but don't keep them from being deported used put them on the plane deport them anyway so i think just logically that's why we're talking about complete acts there aren't going to be that may have very many prosecutions for these small minor hampering i think that i want to make one point about the all leak case i think that the better comparison a circuit city stores in the supreme court just in terms of structure of the statute only was dealing with a structure of noun or now how the first noun did have two stores there were three it was semen railroad employees or any other class of workers like what we have here three disjunctive options there in circuit city stores the supreme court narrowed a broad phrase any other class of workers to mean only transportation workers saying we must look to the common trait of the words that preceded it in terms of levity yes i do make that argument i think that the struggle we're having here to discern exactly what the meaning is means that if it is not so clear as i believe the statute is it's still ambiguous and the rule of law any under granderson in many of this court's cases said a court must rule mr bullock's favor for confrontation clause the government argues that the testimony cumulative and i disagreed i think importantly judge i'm sorry officer nugent's testimony was not cumulative in one aspect officer roles invoked the authority of the airlines captain who he said viewed what mr bullock did and came to the conclusion that mr bullets actions were why he was not can be deported the prosecutor in opening did what is in permissible one referred to this out of court evidence telling the jury we have other witnesses we're not bringing who viewed what mr bullock did and reach the conclusion we're arguing for here officer nugent saying we couldn't board is not cumulative of all that the government bears the burden of proving harmlessness beyond a reasonable doubt and they can't do it here because of that and because the witness they should have called would have been hostile with lapses in memory and upon confrontation who knows what he would have said they can't the government cannot prove harmlessness so here i believe that we should win on both issues they stand independently but i do disagree with the government when they say at the end that this is harmless beyond reasonable doubt so if there's no further questions