and morning your honour's may please the court my name is don algeria and i represent mr smiler wits runners this case actually presents three novel issues for this court's consideration the st one deals with the question of whether the defendant's guilty plea waived this particular claim and therefore bars that on appeal now that issue is governed really by the supreme court's decision in class in which the court said that where a claim implicates the very power of the state to prosecute the defendant a guilty plea cannot by itself bar it this is an extension of class into a context where we're not dealing with the constitutionality of the underlying statute but it is nonetheless the type of claim that is in compas by classes reasoning and classes dicto i'm not not really understanding that because it seems to me that it's pretty clear that the district court had jurisdiction over an alleged federal crime and what you're saying is that the  the indictment didn't make out that crime because of the client's purpose to help me if i'm misunderstanding because i can't under baldie for example we have distinguish between a twelve basically in a twenty one in the criminal context so why did this really go to the jurisdiction of the federal court your client isn't challenging the constitutionality of the underlying statute is he no he's not challenging the constitutionality however this is not like balti from this court and it's actually a lot more that i guess the answer to your honor's question is crystallized in a case called united states versus state you bear which is cited in our reply brief actually to bear now i think you  is interesting because this is a pos class case that was decided in the th circuit and the court there distinguishes between the constitutional challenge and the statutory challenge and what the court says with respect to the statutory challenge is the government's proof of the pledged conduct no matter how overwhelming would have brought it no closer to showing the crime charged them with no proof at all that is the key distinction mr  everything charged in the indictment every single factual allegation in the indictment he admits it all but it still does not constitute a federal crime and it doesn't constitute a federal crime because there simply is no federal nexus that is are we are we still talking about how to interpret the statute and whether the unitarian registration system in new york means that you're buying registrations on the form implication if you do that with the immediate purpose of affecting a local election actually has federal consequences and therefore is a federal crime well but that interpretation is not one that would be decided by a tribe or a fact and that's really the distinction so the question is if you've got a claim where defendant pleads guilty and then he comes in on appeal and he says i'm challenging the elements of the indictment i'm challenging the sufficiency of the indictment meaning i'm challenging the peoples proof then what that means is the courts have said you can't do that because work why would he not have entered a conditional guilty plea if you wish to reserve that question and eliminate any problem here i mean that's kind of a post hoc question but do you represent him or i and i did not your honor and certainly that would have been clearer but it doesn't alter the fact that nonetheless like in st hugh bear this still survives based on classes reasoning and based on you know other case law actually with her  and why why is balding not controlling yes i was actually just about say that with respect to baldies sovaldi is a case that actually is very similar to continence other cases so in boulder there was a failure of the indictment to charge on the awful possession a firearm to allege that an alley we knew that he was legally present in the united states so what was not alleged was the element of knowledge in the indictment that's similar to carlton it's similar to other pro proceeding cases where basically it  a deficiency of proof in other words notwithstanding the failure of the allegation in the indictment if the case had gone to trial then at trial the government could have provided sufficient evidence so it's a question of fact he's challenging that element of knowledge here this is much more like this court's decision in united states versus a vandar and and i apologize i actually found that decision when i was prepping for this argument but that case was decided around the same time as united states versus balti and the and forty three dollars f rd ninety eight dollars now in that case the court there actually looks at class and says we've previously held that a criminal defendant who pleads guilty waits the argument that the indictment to which he pled failed to adequately allege nexus between his conduct to the united states and that is united states versus yusef cotton ball the it's all of those cases but then the court goes on to say however the supreme court in class has since clarified that a guilty plea does not by itself bar criminal defendant from challenging the constitutionality of the statute and although criminal defendants cannot contradict the terms of the indictment to which they pled they may still raise challenges to the statute of conviction that can be resolved big libertarian show because you know the general federal election is coming up in the fall and we've got a libertarian on the can on the ballot that we want to help so that would be similar to united states st to see a newly miscreate mispronouncing that and in that case what the court actually did is it set up two possibilities one is you have a situation where there's actually a federal candidate on the ballot and not our case but that would be intent doesn't matter that right that's clearly a covered under the federal statute the nd possibility is that the registration logic of all the cases including the district court case and see i knew sally which i probably get mispronouncing and basically the argument is this there has to be a federal nexus and that federal nexus can be established in two ways one way  regardless of intent there is a candidate on the ballot for federal office the nd way is there is no candidate on the ballot in that election year but the federal nexus is that the purpose is to influence the federal election this is different because without having to do anything more than a federal election why isn't that sufficient because in this case the year in which this registration happened and the whole purpose behind the registration was purely to influence local understood i'm saying i'm a distinction between fact and purpose and saying you know it happens to also have a federal a federal consequence because the person can't vote in a federal election period excel purposed no desire to do that had nothing to do with anything that the fans were thinking about why isn't that enough because it's speculative because while you speculate that the registration alas we cannot speculate because the registration for the registration still requires the loss of the state still require that you would read register if you moved if you no longer living at that address now but if you do if you are at that address and you have filed a false registration or your say so you have and on that basis are eligible now to vote in a federal election at some point in the future even though you've never even thought about it and probably don't care but it's still possible why isn't that possibility i would argue your honor would not be sufficient to establish the us where we're going to draw a line here right i think that's what that's what the government's about to argue and i draw a distinction in my mind between a registration which allows you to vote in federal elections and a particular vote in a particular case which is for a objects of its three object conspiracy it was submitting fosco to conspiring to submit falsified registrations paid for voter registrations and a violation of the travel act that the district court properly concluded that each of those objects offense with respect to me to the extent that think defendant is arguing that there was no federal nexus i believe that the argument was in fact waived and that's because we started out with i think defense counsel conceded that this is not a classic subject matter jurisdiction that this isn't and nor is it with class in class with a defendant did was he said i absolutely committed that conduct i agree that that conduct fits within the statute but i'm the existing case law and trying to see whether or not it covers this situation when we don't have a case that's directly on point that is true and didn't didn't class also affect a fairly major  interpretation of waiver under class i think it is or i think last really in its narrowest is preserving constitutional challenges to the statute i do think that class left open the particular question in this case which is whether you're challenging or you're saying that the indictment alleges a not offense safe the conduct alleged falls but does not fall within the federal statute i think that's an extension of class as even defense counsel conceded at beginning us and i think that has huge consequences if we saying this is a purely legal question he's saying that even if i did everything that was alleged in the indictment that that is not a federal offense under the statute and therefore this court doesn't have jurisdiction to adjudicate it or t federal crime and that is it claimed that we do not lightly treat as waived and in fact under classes they were required to treat is preserved was that wrong i agree but i think the issue here is the sufficiency of the evidence or the sufficiency with respect to the federal nexus and that just might mean that there is no federal crime but i do not believe it deprives the district court of jurisdiction to adjudicate or entertain the case and that's the classic subject matter jurisdiction readers it will be one hundred and twelve b six that's what that's what this is a good more akin to that i think and i think that's a huge extension of class i think class leaves open that question and there's certainly language in class that might suggest that that's the direction the court is going i do not think class holds that and i think that would be an extension of class and go against the precedents of this circuit like in rubin and you sat where they're talking about a defendant might saying you know i agree that that's my conduct but i don't think that conduct fits within the language to the federal election but the problem i have here is with the text of the statute it says provided that this provision shall be applicable only to general elections and then again it lists the officers  language does not apply to registrations and it only applies to elections and therefore it can apply to any registration but i think more important is when you have the conduct at issue here the registrations that are being challenged were registrations that were false and paid for that enabled the registrant to vote in any election state local or federal including the enumerated elections in the provided for clause so i definitely think that there is statute i think it's saying it applies to any registration or vote where there is where the person the registration would entitle the registrant to vote in the enumerated federal elections and when you have to do  has that it does not matter whether the election at issue as long as there's a federal candidate on the ballot does not matter where the person's mood was purely to affect the local election i think so too here because the registration enables somebody to vote where in local state and federal elections the federal registry they are corrupted the minute that election the voter registration form is filed is long as you're in a unitary registration history which is in almost every single state my understanding is perhaps elections and united states versus lou in the th circuit looked at this and it is similar to this challenge the defendant said the indictment is defective because it includes a registration for an just that goes beyond the enumerated federal important distinction between voting and voter registration the conduct at issue here in which the defended pleaded guilty was corrupting the voter registration process and that enables him to vote in elections for federal officers critical yes and that is a critical distinction if we were charging him with corrupting the vote he could not be charged under this federal statute but we are charging corruption in the registration process and that well there's no direct nd circuit precedent on point which i would also note this is fairly extraordinary conduct it's not that surprising there's not much president the president from the other courts that have addressed this i think squarely supports the district courts i mean i may have missed this but so was there new york statute that provides for unitary registration how does registration yes it's i mean in the new york state voting statutes and you have to list your i saw the form but i didn't see the statute to new york statute i believe it's by statute i'm not but i do know that you register to vote in that registration entitles you to vote i understand i want to find the statutory authority that provides for unitary registration i don't have that cite but i can ok for your honor i'm sure will be and motor voter is also part of it to them ok or which is why there is you know terry registration almost all fifty of the states and i just also wanted to touch very briefly on the travel act we also think that his record correctly concluded that the bribery statute in new york state although not labeled bribery is a predicate under the travel act and you can just affirm on that ground alone ok i'm going to actually start by trying to concisely answer judge walker's question that i didn't concisely answer before here's the reason why you shouldn't draw the rule the line where the government's asking you to because vats would swallow the provided federal office would become superfluous irrelevant it would never apply now you are drawing you are creating the law for the st time in this area there is no case from the supreme court or any circuit court that sense how to define of precedent i would argue is not because this is rare the absence of precedent is precisely because there is a state statute that criminalizes this conduct under state law and th if someone is buying registrations in a way that affects federal elections or has the potential to affect federal register elections because of the unitary process why doesn't the federal government need a remedy when those registrations are procured unlawfully because your honor in your very question you said it because it has the potential to the statute doesn't deal with potential nope with the potential the harm is done when the registration is filed right then that is before falsely procured registration and that is the harm you don't even need to have an election you have to commit the crime and then the provided language in the statute that all of the legislators agreed congress agreed with it and acted the statute was necessary to protect it from being unconstitutional would become superfluous that is it is i would apply in every so my suggestion consistent with all of the case law that exists on this topic is that the boundary be defined in this way to create the nexus and also to protect the federal government's interest i would define it as for purposes of the  it's necessary that at least one candidate be on the ballot federal but we don't talk about the voter registration i'm just giving the whole thing for purposes of the vote to find the statute that purpose motive is irrelevant what's necessary is that there just be one candidate for federal office for purposes however of registration you at the very least need to have the purpose to influence a federal election because otherwise it will extend for every single possible claim and the provided by language the clear lan