boils down to one essential element to smuggling goods from the united states when charged in connection with exporting defense articles without a license require the government to prove the defendant had knowledge that he was smuggling or attempting to smuggle i mean ition the fifth circuit in cardenas says the answer to that is yes cardenas was decided in january of cardenas also followed your about four unpublished opinions that the cardenas court deemed persuasive and i believe the answer was yes in all four of those opinions and then they finally so this is a determined that to establish an offense under five fifty four a the government is required to prove only that the defendant knew he was dealing with ammunition and that was intended for export and that the expert was there argument about whether they needed to know ammunition and in other words was here is you've teed up this argument that you asked the district court he has to what's the item it has to be specifically ammunition now you've raised it to us on appeal i didn't see that issue being raised in card us again your honor i believe that it was raised in the cases before and they slightly distinguish that from  history category one that that allows you to you know potentially get probation the base offense level for expertise of munitions is a twenty six and i think because of the we have to do with with the text of the statute  which he was convicted which was section five five four well the point of this case in point of my appeal is that it wasn't just five fifty four a it was five fifty four in conjunction with twenty seven seventy eight and therefore because it's much more it's the fifth circuit i believe specifically didn't adopt the willful requirement but certainly with five fifty four a in conjunction with twenty seven seventy eight it is a knowing requirement and it is in knowing that you are not just transporting a good but that you are transporting i believe that you have to be know that you're transporting munitions and again i think you asked me why i think that this court should adopt that position if and i don't believe that this court has has briefed this before i think this is a for case of first impression in this court but it's because there is the severity the severity of the  sixty three to seventy two months or something like that that's a huge difference from getting probation and therefore there has to be a knowledge of what you're dealing with the project let's just ask you this five hundred fifty four says knowingly exports any merchandise article or object and doesn't specify what it is contrary to any law so so the export of the item is contrary to any law so are you saying that when the government identifies that the item was contrary to a loss of all including like environmental and whatever that the at the nature of the item and the nature of the contrary to law is has to be proved in conjunction with a five fifty four case is that your position yes my position is that if it's not it is not just five hundred four but five hundred four and string side to will so five fifty four requires that the export be contrary to law so there has to always be a law that is violated by the export so you're saying that in every case so i just wanna make sure i understand your argument that the law that is the predicate for five fifty four whatever that item is has to be proved by the government in the five fifty four case is that what you're saying not necessarily but in the case specifically where it's cited with munitions the twenty seven seventy eight that yes why would it only be limited to munitions when the language is general and fifty four because again i don't look for instance with the with the drug trafficking and codes you only have to prove that you are a transporting an item it's controlled substance and you knew and it turns out to be that it was a controlled substance it doesn't matter with those methamphetamine doesn't matter if it was heroin and doesn't matter if it's cocaine doesn't matter of his marijuana although there are huge amounts of difference and then it's absurd becomes in the way i think in this case because again this goes back to i think fundamental fairness and  to when sided with and this is the proposition that cardenas all night in there that says not binding on the score but it certainly should be persuasive when in conjunction with munitions which is in credibly high base offense level the defendant section titled eighteen united states code section five fifty four and i think it is important to make the distinction that is what the defendant was charged with and that is what he was convicted and convicted of while in the indictment which is included on pages one and two of the excerpts does cite as a to wit among other things title twenty two united states code section twenty seven seventy eight as well as certain provisions of the code of federal regulations again that is the to wit to put the defendant on notice of what underlying violations or what predicate violations make munitions unlawful to be exported from the united states but the charge that he was charged with and convicted of being in violation of was in fact eighteen u s c five fifty four and i think that is the important distinction to be made there i think that cardenas will not controlling what it does tell us specifically because the issue it specifically addressed is whether  charging twenty two us c section twenty seven seventy eight as the underlying or predicate law that expert is in violation of does not come for the mens rea of willfulness onto a section five five for a violation and i think that that is appropriate it does reflect a correctly the men's area in the language of the statute for section five fifty four and so would submit to the court that  we can take that from cardenas as being appropriate that that was the issue that was addressed in the car in cardenas but as pointed out cardenas did not specifically address whether the defendant had to have the specific knowledge of the exact precise definition of the items it was not in dispute as pointed out in cardenas that the defendant knew he was transporting ammunition it was simply disputed whether he whether the government had to prove willfulness which the court rejected that argument here  there the issue at trial was whether the defendant knew he was transporting ammunition and the jury instructions appropriate even if the government was required to prove ammunition that the defendant knew it was ammunition the government's i'm sorry the court's instructions were certainly sufficient in that regard is that because the instructions mention the munitions list correction or it mention the munitions list as well as specifically the inclusion of ammunition for firearms on the munitions list in the same instruction and that pointed out the elements of the offense in our government offer proof that there was no export license to the government offer proof yes yes in fact the  one agent chavez testified that there was a inquiry conducted that the defendant did not have a license to export ammunition and i would also submit that of course there was the evidence of that he was doing this in a covert smuggling manner hidden in the spirits higher underneath a vehicle talking about getting paid five hundred dollars to take it across the border things of that in that matter that also corroborated the fact that he didn't have an expert specified in that same instruction that has the elements there was another instruction given the deliberate ignorance or ostrich instruction which is included on page three forty of the excerpts and that instruction specifically said that the jury may find requisite knowledge that the defendant if that if if they find that the defendant was aware of a high probability of the items listed in the indictment were in his automobile and that they may not find such knowledge if they find that he actually believe that no items listed in the indictment were in his automobile the indictment was read to the jury the indictment was sent back to the jury and the indictment only list ammunition ammunition is the only item listed in the indictment so the jury was pacifically instructed and as this court has told us in the andersen and hopeless cases that we look at the jury instructions as a whole taken together the jury was specifically instructed in that deliberate ignorance instruction that they can't convict the defendant if they find that he didn't have knowledge or at least belief that that that ammunition the items in the indictment were in his automobile so taken as a whole  point one one twenty one twenty three point one but at some point you made the decision you're just going to rely on the fact that you didn't have a license i believe that the proposed jury instructions were submitted that cited the code of federal regulations usually those are submitted bout thirty days prior to trial certainly the were were formulated and given to counsel prior to the beginning of the court's preliminary instructions which included the c f r or the court of federal federal regulations that was read to the jury  dire were given to counsel prior to die i believe so the defendant was put on notice at least prior to the beginning of trial that the code of federal regulations would be the predicate or the to w t violation i'm sorry the predicate regulation that would be used but that said your honor i don't i think it perhaps is a distinction without a difference because in either way the issue here was was his knowledge of whether it's ammunition and quite frankly when he gained that knowledge whether it was before the tire fell off after it fell off what whether he did anything in furtherance as that was the government's position even after the tire fell off and there was ammunitions coming from it gas from it he spent considerable time still trying to pick it up and take it across the border so even that fact alone would proof because that is an act in furtherance of an attempt to to export ammunition which are covered by eighteen us c five five four and so that leads me to my last point that even if there was some deficiency with the jury instructions which we do believe taken in their totality were in fact sufficient but even if there was some deficiency the evidence here was overwhelming we have first of all just the fact that the defendant is the driver and sole occupant of the vehicle and it's reasonable to presume that people do have knowledge of what's inside their vehicles what they what they are transporting we have the fact  that immediately the defendant store signs of consciousness of guilt after passing no less than three signs that expressly state it's a legal to take ammunition into mexico he's seen covering his face when he goes past the clear clearly position camera this is someone who is a regular border crosser who crosses multiple times a day and is certainly we can presume has awareness of the prominently displayed cameras we have the video showing the defend backing up to the tire backing up in basically going back in in a lane of traffic rather than pulling off showing knowledge that he knows that that tire is very heavy the that it's a load with over five thousand rounds of ammunition we have him on video for some time while the ammunition is filling from the vehicle trying to lift the tire and put it back into his car we have the fact that here now after he's unsuccessful in doing so tries to cross over on foot the same day with his brother driving the vehicle and when further unsuccessful this regular border crosser who is crossing multiple times a day doesn't cross for over three weeks so the evidence there was overwhelming then when he does finally cross he states the agents that he was transporting ammunition in fact when they asked him why would you choose to transport weapons and ammunition he corrects some inside that was ammunition showing a intimate knowledge of exactly what was inside inside the tire he says that he did it for money he said he took a great risk because he was desperate for money he never disputed his knowledge or when that knowledge occurred or never and indicated any surprise to find out that it was in fact ammunition in the tire so at the end of the the day the  evidence was overwhelming that the that the defendant did have knowledge of that ammunition and there were no other items that were referred to in either in the instructions in argument  evidence that the jury could have found that the defendant instead was intending to export so it would submit that not only was the government not required to prove the precise identification or knowledge of the precise identification of the items that the jury instructions were in fact sufficient and in any event any error would be harmless in light of all the evidence presented th you tell me what the specific mens rea the charge was that the defendant requested in the district court declined to give we asked for in my memory if my memory serves we asked for that that the defendant that the court require the jury to do that the defendant has specific knowledge that he had ammunition before and while he was attempting to cross and there is not disputed facts as the government said when he the first time he we believe he ever knew that there was a knowledge of it this tire fell off he approached it he realized because there was a gash and what was on that charge what is this efficient evidence in the record to to satisfy reasonable doubt standard not at all judge not at all first of all our theory of the case as i indicated in my opening brief in my reply was that he understood that it was cash he only corrected and the first time he learned that there was back on the truck it was of the photo evidence of the video so there is video i don't think i mean that's that's the government's point of view i don't think the jury's point of view was i don't think so that was the judge's point of view and that's why the judge refused to give the instruction and you know journey structures are fundamental piece of a fair trial proper jury instruction sure that twelve laypersons appropriately applied a law that many of the them otherwise wouldn't understand and the intersection of eighteen u s c five fifty four with twenty seven seventy eight with the confer you see if ours is a complex web makes it more important and they're instructed properly and mr veritas contends that the first time that the government is required to prove specific intent that he did not