statute at issue is overbroad and in order to determine whether or not it does cost to the controlled substances act we must determine whether or not the statute is divisible which is determined by whether or not the statute provides alternative means or elements for committing the crime in statute that question that elements are unlawful possession of one or more mixtures containing a controlled substance classified schedules one to three or four except for a small amount of marijuana this is further supplemented by case law regarding elements which do not require actual knowledge of the substance in question just actual knowledge of possession of a substance that then happens to be a controlled substance there's also an active trace requirement and the act is race requirement is that one must actively possess a controlled substance and it's not necessary for them to possess any specific controlled substance so long as it falls within schedules one through four and is not a small amount of marijuana the act stand it is not necessary for the jury to agree unanimously as to which substance was possessed this is made clear in cases in which there age one or more mixtures containing multiple controlled substances in those cases it is only necessary for the jury to agree that the mixture contains a controlled substance not the specific identity of the controlled substance this saves the state expensive laboratory testing to determine every single possible substance at issue and saves the jury having to wait various that state court of appeals has held that in order for a controlled substance conviction to stand it is necessary that the state prove that the person had a controlled substance that is in state the knock state held very similarly are those mostly with regards to the man's rare requirement that the only really real issue is whether or not the substance is controlled furthermore it is relevant based off this court's precedent explicitly listed and new drugs are made every day designer drugs that are capable of being included within that substance that are within that list they do not currently exist as such the list as it exists today is not is because there is one substance in question and the identity of the substance was challenged and so if the identity of that substance was not found to be a controlled substance there is no substance possibly capable of supporting the the case that supports that position the most but staving papa doc is dealt with a situation in which the elements of the crime are in which the charges and on the complaint separated all of the charges by a single substance at a time had good complaint actually listed multiple substances in a single charge it would not have been necessary for the state to prove the identity of every substance and so listed as one single count and the defendant was found guilty and named were guilty of possession of a controlled substance was not necessary to determine what specific controlled substance was at issue similarly in this case i thought involved seven different controlled substances my rahma you are correct but i believe five or six of them were steroids and so because they were all separate they could have been charged in a single docs but had they been mixed into a single mixture at that point it would not have been necessary to actually charge them separately question i realized last night is tramadol a controlled substance or both minnesota and under federal law i was looking at it and i cannot find it scheduled under federal law secondary sources seem to indicate that it containing a blank and there's a footnote in the dirty instructions and at that for now it says a schedule one schedule two schedule three or schedule for controlled substance except for a small amount of marijuana joint fractions could have stated the specific controlled substance or controlled substance or the identity of a controlled substance but instead it omitted any reference of the term controlled substance or the specific identity of the controlled substance instead it defaulted to the schedules schedule one schedule two schedule three or schedule for so at most even if the identity of the controlled substance could vary even if the session is divisible it's only to determine what schedule the drug falls with terms of the sale of intoxicating liquors it was not necessary for the state to prove what specific intoxicating liquor was sold it was only necessary for the state to prove that the liquor was intoxic to minors provides a useful analysis of our usual analogy in terms of whether or not someone is guilty of selling alcohol a twenty underage person and it's necessary to prove that the person was under age it's not necessary to prove their exact age while there is a specific range of cases in which the age of a person could fall weather between zero and twenty years of age this state is not responsible for but there's a comma after that and it states to the defendant's belief is not enough and so if there is no scientific evidence whatsoever then and there's no circumstantial evidence whatsoever then it is just incapable of sustaining a charge but if to relate to a controlled substance there must be a connection between an element of the conviction and a federally controlled substance here the minnesota fifty great possession statute does not categorically relate to a controlled statute that's where the statute is overbro here the court must determine whether the statute is divisible using the elements vs means analysis from to camps and mathis here the board properly concluded that the minnesota statute was developed divisible by a specific type of s instructions yes the jury instructions support the agency's conclusion that it does it has a fill in the blank structure where the identity of the specialists must be indicated on the st element possession of instance but again we don't we only peek into the conviction documents and the elements analysis if necessary later if these other methods of analyzing the statute don't provide the answer and in this opposing counsel he said what about the rest of her about the person when we have the court saying that we have a court saying that in dec and then we have several on published court of appeals cases from the state referring to that statement as the law of circumstances applies and one of those would be if they're making new law so it's actually makes those cases even more persuasive here when you see several of the courts of appeals referring to that requirement as the law because they didn't think that there were referring in that case to whether or not the defendant had possessed mushrooms or methamphetamine the jury must agree as to which one so little bitch is very instructive in that in this context very similar factually it's also rising out of a single behavioral incident and that case is particularly instructive with look at the fact that the court concluded that it was permissible to have several multiple crimes from the same from the same incident  so the minnesota case law supports the edge of conclusion and the petitioner argues that because they are controlled substances are referred to in a separate section of the statute  first that's not a universal rule that if it's in a separate section it's a means and secondly it went on to analyze the statute and find there that drug schedules listed separately w florida state cases would indicate similarly to here in minnesota the identity of substance must be proven and therefore i found it to be an element and asked of the court and yet in the th circuit  she has not presented to ballard colorable question of law with respect to that one the arguments there are that the agency didn't properly apply its case law a matter of quinlan but that's not actually what the with the agency did the agency didn't say that the facts as alleged wouldn't fit within it published precedent about what constitutes and i missed an admission with the agency said was the weight of the evidence in this case doesn't meet your burden of proving that what happened so that would then be a weight of the evidence factual factual question and the court should decline to review that should it sustain the criminal remove ability grounds also just to note with respect to the issue was whether or not a continuance would be granted so that the link to a you vsa and in this case we squarely had the request to terminate proceedings because that was apparently what was requested actual terminations not continue in the case ruled that the agency did not abuse his discretion and to kind of to terminate and again so here the court's review would be limited and if there are no further questions in this case wasn't she charged with two separate drugs and one count she was she was a standard practice does that cut against your argument about to visit i know that was that was raised in the reply brief that the savage she was charged with methamphetamine  need for the jury to agree on which one it was apparently it appears to have happened in that case as well and i think the most instructive case on that that i would direct the court to would be  about you can have multiple crimes from a single behavioral incident and something else that might be instructive in this was not cited in the brief and again that the count issue i believe came up in the reply brief the night circuit in martinez i requirements and these are the elements of the offense and then there were other court of appeals cases there that would seem to conflict because with respect to the actus reus there you had i think it was silent transport or sell and give away and the night circuit was not troubled by that the night circuit so when you're doing the elements analysis you're looking to the case law st about what the state courts are saying the elements are and if we do that here we do have th have published case law saying that the identity of substance must be proven and that it's an element if you look to look at it if it is divisible we can then use the charging documents what are we what are we going to find methamphetamine a think quickly start by addressing the counsel's argument that counsel statement that there is no state court decision that definitively proves whether or not this is an elemental means the math this court specifically held that in order for a court of appeals to find that something is an elementary means there must be a definitive answer from state law if there's not a definitive answer you would not be appropriate for this court to use traditional tools of statutory construction to determine the meeting by digging through state court dicta without an answer from the state law the rule of lenity should apply to construe ambiguities against the government because otherwise this court is substituting its own judgment for that of the state court on an issue of sudden substantive law which likely violates the you're a doctor in the th amendment even article three section two of the constitution so with that in mind it's worth quickly talking about the lubavitch because in that case there was two different acts of possession they controlled substances did not matter yaks of possession were a constructive act of possession for methamphetamine in a baggie outside of a truck and a constructive activists action for suicide in mushrooms charged in addition it's worth quickly addressing the other circuits so it is a nd circuit case that i believe counsel referenced harben and there was a recent case had the same circuit rodriguez which analyzed significantly similar state statutes in the context of illinois and state in the th circuit and in both of those cases those courts of appeals held that this statu was more than enough to meet their burden by clear and convincing evidence as often the standard in immigration cases immigration it is very hard to prove many of the requisite acts for a great number of different things including asylum how you entered the country twenty years ago and cetera because people's memories are not perfect often you know did her testimony so stated she paid a smuggler smugglers i had met habit of giving out their names so the fact that she was unable to remember the name i somewhat of a red herring based off the evidentially burden of her credible testimony that was not disputed while the immigration judge did find that date doubted that the person like that may seem to disbelieve