parachute deployed above him the government subsequently charge mr kerry with a violation of thirty six dollars c f r section two point one seven eighty three dollars which prohibits delivering or retrieving a person or object by parachute helicopter or other airborne means in less that most individuals a permit to do so well or except in emergencies involving public safety or serious property loss are you saying that the government has to establish beyond a reasonable doubt in every case that there was not an emergency or serious property loss that was not the argument that was raised below it is it would follow necessarily that if this court were to find that the absence of a permit was an element that the government had to prove that life is the absence of emergency involving serious publics so that doesn't that strongly suggest that this is these are this group of  additions at the end of the second this are affirmative defenses well you and i think you have to look at and this goes to that three part test text the text and structure of the statute itself if to look at voice and just go into that particular question if you want to look at section two dollars b there are actually additional exceptions that are contained in that subsection b which are not incorporated within the actual section that prescribes the conduct really with respect seems to me what we're really talking about is two supreme court cases  whites seem to suggest that it's a an element of the defense is of course the other way around as i look at this i look at the cases i look at we use thing i like at  king black etc i i i need to be persuaded by you that this is not enough or i'm really defensive to asian because i see the the white situation as being one where you have something like doctors have a respected profession and they have certain expectations and i see that as an exception why is that wrong well your honor the distinction between i mean obviously the voice king in blackall involves the doc doctors on the r profession that's that's never there was never explicitly part of those holdings in that it was only because these were individuals engaged in the middle cry because there was a common characteristic of the cases right that was a common characteristic and i would know the you know this court decided last year in the charette case and this is cite in the government's brief it at page ten that case involved the taking of a grizzly bear without a permit and this court held in that case that it did co affirmative defense that the defendant had to prove now the reason the court found that was because there was an explicit legislative history and in fact it was a religious legislative history congress had specified within the endangered species act specifically that when there is an exception and it is on the defendants who so initially raises such that it's an affirmative defense so their congress knew how to act and they acted in this particular case where using the c f r that there is no real relevant legislative history to suggest  parachuted into the park and that's illegal unless he has a permit is and basically the same it at the structure of the statue and it is similar but i think that's the reason why these cases look to either the text and structure of the statute itself look to the legislative history in the charette case this court specifically said what what did congress say about this issue and congress spoke very clearly on that issue that when there's an exception like a permit in relationship to the endangered species act that is something that the a very different kind of situation we have a regulation that was promulgated in connection with a statute we might have an hour difference or something like that but the reality is it doesn't help us much so we have to look to what the supreme court and other authorities have said and that's why i get back to as i mentioned earlier the two supreme court cases that seem to go different ways and from from my perspective just as we did in the threat case it seems to me that this one fits into the category were it's an affirmative defense your client has to prove what's your best argument that that's wrong well your honor it should be a taken for granted situation that whenever the word or language such as accept or unless appears within the statute that it is thereby an affirmative defense if that were you serious well if that were the rule why do other circuits say for example the th circuit which employs just three part test there is an automatic deference to the rule there is an analysis to say well let's look at the text and structure which includes i think the analysis of voice in the calvary let's look to the legislative history to see what congress intended with this particular statute notwithstanding that it bears resemblance to other statutes that have been found is affirmative defenses are more language had been found as affirmative defenses and lets look at the parties relative ability to present evidence on the issue i mean that's why those chords look to those other factors it's not it wouldn't be it wouldn't be a simple analysis of well this is except automatically that's an affirmative defense i think that's a common understanding that's a common principle but you have to look if you have to perform this analysis at least under the three part test or as said as i set forth in the brief the void space is simply irreconcilable with mackell the and that issue has now been resolved i can't read it with respect i disagree with you about that i don't think that's true the only thing that i find is directly on point is this your to us district court case or whatever it's called what role if any should that play in our analysis well certainly it is push persuasive authority it's a district court who found that that this particular perm  aspects of that tests is the party's relative abilities to present evidence on the issue when it comes to the per minute it's like equally easy right  it would have been a very simple thing for the government to show there was no permit but it would have been a very simple thing for you to show if you had a permit so i think i'm not sure that the ox case really add allies that element  correctly well your honor i would agree that there would be a relative ease for both parties the government as the per the issuer of the permit obviously has access to those records as access to their custodians if mr kerry chose not to testify which is what happened in this case he would not himself be able to introduce that evidence unless we but of course that's true of every affirmative defense i mean that doesn't resolve the question if you have an alibi defense you still have to raise it  affirmatively even if you don't take the stand or whatever under said you know what we're trying to find out whether or not it is affirmative movements and we're looking to whether or not the parties have you know which party has the relative ability easier ability to introduce that evidence and i mean this was an argument set forth at length in the briefs but related to the public the emergencies of all the public safety or serious property loss that likewise would be an extraordinarily difficult task for an individual to present as an affirmative  defense where again it's specifically referring to public emergencies these are things that are within the access of control of the park use only national park within the access and control of the government so that is i think that factor does weigh in favor of considering it an element that needs to be proven by the government and i would again direct the court to two dollars b which contains further exceptions so these are exceptions that were incorporated within the statute and i go back to voice on that these are additional exceptions related to that this statute this section should not be applicable to official business of the u s government emergencies involving the superintendent and landings due to circumstances and i'm sure you're out of time we're going to give you a minute in rebuttal but why don't you let orning may please the court jeff speed back to the united states based on the language of the statute the structure and the history as well as some of the th circuit case on terp reading question of bade by your an adversary a minute ago the the three exceptions that are set forth in the st section are all ones where you would think the government would be the natural person to establish that whether there was an emergency involving public safety or serious property loss or whether there was a permit and so if you re read those pull together the argument is can these were exceptions that were uniquely within the power of the government to show certainly the emergency one and therefore it should be the government's burden to show that they are not applicable to the case you're prosecuting certain things i can foresee being very difficult for the government's approval emergencies affecting for example the defendant himself this court in grabbing my ear and th circuit at which party would be in a better position to prove the existence of the facts that would support an exception and came down that even if the government could prove that it didn't necessarily require the government to do it didn't make that burden one of the government's let me let me change the focus just a little bit when the case was st prosecuted the government and ceded that the permit was an element of the crime if if the court disagrees with that what do we do with that if it were fact you'd be bound by waiver budge and just as a matter of law what do we do with it there's case law suggesting and united states versus miller is one such case that misstatements of the law by the parties is not necessarily binding and the role of the judge is usually to determine and apply the appropriate law so the fact that the defendant or the i'm sorry the government misstated the elements we don't think should be dispositive of the issue we think the courts should determine what the proper law was and whether that trial judge properly applied let's change the facts a little bit let's assume and there were a jury involved and that the jury instruction had stated that the existence or nonexistence of a permit was an element of the crime what would that do this case if that were the fact i don't know your honor frankly i think it may change the analysis if the defense for example took a defense strategy based upon certain concepts that the government had urged throughout the course of the trial and then at the last minute before the case was submitted to the jury the government changed tact it one comment on it because i think the court properly identified the conflict between the parties just a dispute about mcafee versus which and i do think that the structure of two airborne means except emergency or permit which is quite different it says that participating work or producing an abortion unless medically necessary is prohibited you cannot reach the prohibition without passing through the exception dispositive of the issue i'm not sure but i think it is instructive additionally  the statute previously provided for abortions to be only permissible and the district of columbia to protect the life of the mother and in one thousand nine hundred and fifty three that statute changed to then allow abortion for the health of for the life or health of the mother and what the supreme court said is that this statute was more restrictive previously and it would be highly anomalous for the legislature to authorize a broader class of abortions but then to demand a doctor upon pain of one to ten years of imprisonment to bear the burden of proving abortion that the abortion fell within that what do you say t o the appellant's argument that further exceptions are specified later in the statute so that by implication suggest that these these exceptions are elements where's the later exceptions are affirmative defenses that that's a sorry about that i am not prepared to argue on that point your honor i haven't compared those additional elements  published the magic judge didn't say he relied on any like they just see the article basically in today's age with internet communications and so on is it realistic to expect that any judge doesn't read a news line or some kind of information and what if anything do we do with that unless it's clear that the judge has used the information in that article to decide and i'm putting judge posner aside i don't think it's reasonable to think that a judge in fresno would not come across an article on the front page of the fresno bee i think the fact that the defendant made those statements and it appeared there is something that is not surprising and on these facts i think the analysis is st did that does judge the magic judge take enough to be impartial yes the language of the opinion clearly states that he was not going to pass wisdom on the regulations he was merely going to determine whether the evidence prove the defendant's guilt and then proceeded to determine the issue  you may well be right but i must say that it's one thing for a judge to read something in the press it's another thing for him to include in his opinion the siding the case  when it wasn't part of the record would you agree that if a reasonable person could infer that it played some role in his decision that there would be grounds for i think it's possible i think the judge was in a difficult position having then read having read the article he could not mentioned in the opinion which could potentially raise other issues or excluded this that or that and so they're aware of some highly prejudicial element that they kept out they don't make it part of their decision because it's not part of the record was there a defense here  of sitting as a trier of fact and he had the issue of guilt or innocence taken under submission at the time that it is not typically the case if you're talking about a jury trial the judge may be exposed to those things the judge may consider those issues at sentencing which is exactly what this judge honor i think in those circumstances there's an understanding that judges compartmentalizing a ruling on a particular issue in a disc discounting it if the if the material is excluded in this particular case there was no idea that he was discountin this in fact he included it and just the very last point i'd make even if he didn't particularly rely on whatever was read in the newspaper article if the supreme court case and losers are going to know if i'm pronouncing that correctly and that was a case where the judge said he wasn't conscious of the potential conflict yet none the less the supreme court stated that that was a situation where reasonable person who was aware of the facts and circumstances would conclude that the impartiality of that judge might be reasonable question other ali thank you all this is obviously a very interesting case and we appreciate the good work that you each done thank you for that and the case just argued is submitted