the district court should have granted mr matrons motion to dismiss for lack of summary does subject matter to his diction should not have submitted the case to a jury and should have charged the jury to find ratification this case is jurisdictional element beyond a us how one case though that curbs the sink we holds this is a jurisdictional no it's a very underdeveloped area of law and i think that's because of the need circumstances that surround it the particular age requirements specifically between being between eighteen and one thousand and a conspiracy that spans maturation so there are only approximately forty to fifty cases in the country that have dealt with this issue and certainly none that i have found after the elaine case the most recent supreme court publication on the apprenti right oh wise a jurisdictional element down so it's a jersey if we look to the chambers this court's chambers case it tells us that fifty thirty one in fifty thirty two the j d a strip the district court of jurisdiction over juvenile one because the government did not try to get the room the requisite attorney general certification it simply alleged that the conspiracy spanned maturation why is it yours why don't we just look at it as alleging activities after the date of maturity and say look i mean you can only convict based upon activities after the age of majority your honor i think a pretty in a lame compel that kind of reading from a fifth and sixth amendment perspective i completely agree but from an article three perspective i think there are also jurisdictional issues here from the way congress phrase the statute in fifty thirty that it's alleging doesn't the in statement include post majority activity no your honor there was no post majority conduct by mr a juvenile or if the the point is of argument here is your honor after eighteen the government must prove a delineation between post majority and prematurity conduct that has to be proven at trial prove the maddux case and it also must be alleged as an indictment as something that must be pretty skinny in the indictment as an element that must be convicted so the difference is not merely alleging a span of time the government has to delineate between pre and post majority conduct at trial and it must allege the same thing in the indictment it must make a prime aphasia case out of that element ok so are you saying that they have to the indictment has to include two events post gertie i mean house what does that have to include so the specific allegation could be mr mason ratified post eighteen or continue to participate post eighteen and then per the lanham decision and citing u vs harling the supreme court's decision it must be accompanied by specific facts and circumstances underlying that offense so it must have said mr major ratified after age eighteen and it must have shown some sort of  r participating in his club or gangs activities that are so the argument is no your honor and that was in terms of the indictment allegations none of that was alleged all that was alleged was a span defendant continues to sell drugs in that case continues to tell people he's selling drugs he is overtly continue to recruit new members to your honor that's the government's characterization i don't think the record fully bears out on that and i think there is contrary evidence to that in the record to that character is it well you know you so you're right i think that actually folds into my jury instruction point and before i address that i want to mention there is a more recent standard that has come out on the plane or a point that is this court's decision in united states versus mac for the plane or position and that is more recent than the one cited in our brief op but what that case asked i asked this court to do is look towards the need or standard united states versus ne and ask beyond a reasonable doubt is this court certain that the error of not instructing ratification to the jury did not affect the proceedings did not affect the verdict by all counts for for instruction no it did government and the district court do not have clean hands on this which i think is all the more concerned that it's just a pretty amazing yes especially given the fact that it was brought to the court's attention nine months before trial and it was again big difference between guilt and his innocence conviction but let let's say i mean let's focus on the jumping in ceremony and let's say hypothetically we think there is enough evidence there for it for a jury to find not only know but so why doesn't that evidence make it harmless that the jury wasn't so instructed so you're asking per the meter standard yeah so i mean you know i mean the jury wasn't told you got to find ratification yes why should we say they would have anyway based on that while jumping him ceremony so i think the new year standard as as enunciate it has a slightly different focus and the focus is there reasonable doubts on this record that the that the air affected so in other words is there clear going on plane air or reapplying that's that's what the macro constructs that says the third prong planer is neater and so what it's asked us is there are clear evidence that the jury could have found no ratification and there is for at least two reasons the first is the overall kind context of the gang after june two thousand and eight when mr mason had his last juvenile delinquency proceeding and we look at for over for a almost three years mr mason all but disappears the agent in charge comes on the scene in july of two thousand and eight there's copious amounts of video of drug is and mr mason is never around but for this one afternoon so that overall context is it would be evidence that the jury could use to find no ratification which would satisfy the need or standard the second piece is the testimony that this this gang initiation this jumping in was new was not a pattern or practice it was something that mr mason did not necessarily know whether mr hackett or whether mr royle intended it to be he did not necessarily know that this was some sort of gang activity and further boost there's to recharge double jeopardy would have not attached visa b the jury instruction it would there would also be no double jeopardy attached it would simply be again vacating the conviction and reversing for a new trial so so ok so what you really want to when i was the sufficien argument that that would be would be nice because double jeopardy would have attached but again this court need not go that far right and it seems to me it really doesn't matter about whether it's jurisdiction or a problem with the jury instruction effect they had to send it back for a hearing to see if the adjudication was in the interest of justice so i don't think it undercuts and i think it as judge white suggested this is more than jurisdictional from a fifth and sixth amendment perspective and it needed to be  really the indictment was sufficient when you when you look at it there was no question that mr maging was involved in l s p as a juvenile the indictment alleges the time period from january first two thousand and three through march fifteenth two thousand and eleven which spanned and he became an adult he turned eighteen in april of two thousand and nine i believe the indictment for rico conspiracy which alleges you know that whole time period the government didn't have to prove or even alleged overt acts in the indictment for to to have a sufficient indictment yeah it's a real that's the question you know i mean i will say it's weird because if you you know if you had a defendant who situated just like make it who joins the gang before he's eighteen does some stuff then allegedly continues to be a member at least of the gang after he's eighteen and then you have another guy who joins when he's eighteen and then continues his membership through the same date say we're making terminate his rico conspiracy i mean it's the exact same offense the second guy at trial and in the indictment the government doesn't have to say anything about ratification doesn't matter all you have to do is agree to join this conspiracy right now but for make and you have to prove this other element that even though they both did these really is the juvenile under the juvenile doing so but you wouldn't have to it would be the same proof speak as if they both did the same thing it would right if they're both in the conspiracy it's the same that is they're disproving their member of the conspiracy but in that same time period so what mean you know you have an extra proof with making a guess because we have to show that he did ratify but only if you want to only if you want to introduce what he did before right i mean you could've charged him the same way you could have just charged him starting from his eighteenth birthday i think they were trying to show that because the law is what it is and his guilt depended upon ratification and given the facts of this case how could we possibly permit this conviction to stand when the jury had no idea what the charge was i mean the major question they had to answer was whether he ratified and they had no idea that that was the issue in the case well there was evidence that he did ratify i mean there was evidence that he was a continuing member of the gang passes eighteenth birthday you know but the jury but that's not the question i mean the there was also more evidence about what he did before this and and that was really clearly established so if you're on a jury it's a really easy thing you don't even have to bother about what he did as an adult there probably sitting there going why why is that such a big issue we did all this other bad stuff you know obviously guilty so how do we permit the conviction to stand when the the real issue which is the meaning of the activity after his birthday is the jury has no idea that that's what the case is about and they were not even asked to focus on it and they're not asked whether you ratify well do you get into the in the mac so it was all inference i mean a lot of it was in from sorry so the fact that there's evidence that he ratified is why they don't get a ruling on sufficien you feel that the evidence was so compelling that we can just ignore the fact that they the jury wasn't asked the dispositive question member of the gang at the time of the indictment his girlfriend yeah but that's not enough you know maddox i read it it's not enough that you fail to withdraw you have to do i think it's first circuit said some actress reyes which we could even be i think it could even be a conversation where he says i'm in the scanning you know until i die i think if he simply says somebody said he said that that's ratification but we don't have anything but the jumping in well the jumping is the piece yeah but i mean would you agree it's fair to say that's not overwhelming evidence of revocation i think it's i don't necessarily think it's pretty good evidence i mean whether it was a round in two thousand and eight it doesn't i don't think it really matters i mean whether they jump in when kearns in two thousand and eight does it matter is there whether he ratify it is his conduct or his involvement in l s p in two thousand and ten if some time between then they decided we're going to have this initiation where we beat a prospective gang member for sixty seconds and see how he reacts and see how he fights back and her prove that he's worthy of l s p that's ratification whether that was a new development in two thousand and ten or or or april twenty eighth will thirtieth two thousand and nine you know it's hard to pin these dates down which is why the i think we put in all the pre and post eighteen tried to put in the pre imposed conduct yeah i mean it's i will say like i said i mean it's pretty amazing to me with the kate clear case all we have in these you know kind of straddling type cases juvenile then adult and given the fact that the defendant filed a motion nine months before trial you know saying this should go forward i mean that that there was no instruction given here even though we he didn't ask for i mean granted explainer but it's almost like you know in a user kerry case they forgot to ask you know did he use or carry you know i mean it's pretty amazing and i just and the evidence is you know i understand your point but it's kind of hard to see how this did make a difference well the movement instruction is also a little different than in this it's you know minute instruction is less prejudicial theoretically than that he was still in it and there was evidence that he ratified whether it was it was implicit implication you know the evidence was and i admit it was no we don't have anything we have before when he was arrested you know if we had it after when he was right if he was arrested sometime after that we wouldn't be  mean i think if you had instruction you'd be probably a pretty solid ground here how many defendants were there i mean i know there's fifty something charges in this trial it sounds like mr makki was here and you know how could you forget i mean there most everyone else plugged almost almost everyone else put it this was the main trial for all these guys these were the defendants that chose to go to trial and then they were all consolidated you your honor i just have a couple quick points first point i just a practical point i want to say this is not difficult for the government to do the court should not be concerned with that  in these other cases there are gang members who testified that after eighteen the defendant kept selling drugs kept it we can see the one case there were in the second circuit there were actual predicate acts after in that case  required here for the rico conspiracy but there it does happen it is not as difficult as the government suggest to show after eighteen the defendant continues to engage second point these are be the mack decision your honour's the government suggested that the standard is it is perhaps closer to a sufficiency and i want to read reaffirm that the standard is beyond a reasonable doubt is there are we sure there's no effect in that or is there clear evidence in the record from the jury from which the jury could have found no ratification and i think the answer is yes in this record and finally your honor the third point the lane a printed decisions tell us that when we look at elements that we when we look at crimes we look at them functionally so this rico the government yes did not have to prove overt acts per nine hundred sixty two d this is a rico spanning majority so something more needed to be shown with ratification and the government failed to a legit and failed to instruct it and for those reasons your hon  the excellent representation and all the time that you put in this thank you case will be submitted court may call the next case