issue about the motion for new trial and i think that it's fairly clear that the resolution of that issue is going to turn on the characterization of whether we treat the you know version submission of a document which included sentencing information as the insane which case as the district court ruled the first time around a new trial was warranted or whether we treat it as  simply in an object into submission of evidence essentially my error for not catching it in which case the government or the district court second order probably should hold sway ok there's one other question  sympathy and it's not in demick only to arizona but along the border there's a lot of concern about immigration there's a lot of concern we've seen your calendar this morning is full of immigration appeals concerned i think and we did not get a chance my motion to talk to the jurors was denied so we didn't get a chance to explore whether there was actual prejudice but i think the concern is that there may be people within the veneer in arizona who would think but doesn't the conversation discussed it was not raised in in any proceeding in an argument because nobody noticed it so the one juror thought the female jurors fathered twenty years so clearly that knowledge and she had obviously  plea so it didn't impact her because normally what we get is that if that comes in and it's the defense saying if they know it's a low amount of time that may influence them to find guilty so i didn't probably didn't affect her the other jurors seemed unknowing about what the potential penalties were it doesn't seem that that's a good that that conversation and there was the instruction to the jury that they were not to consider sentence so if you combine all that i tend to come back attention would be my construction or the reason that i think it still is pertinent is my concern would have been given the current emotional approach towards immigration and in their ranchers along the border that carry rifles everywhere because they want to keep people out is that somebody might do just the opposite rather than it's a low number therefore that's convicted will be ok that their attitude could have been it's a high number let's convict her and get her locked up so that she doesn't come across and so she stands as deterrence to other people that might try when they hear about in other words that desire to be punitive might have driven in more likely to conviction i mindset this sense doesn't matter they're going to convict just to get that person behind bars but again your honor without talking to the jurors we don't know what impact it did have the concern was that it could have pushed the conviction factions within the jury i think all of us have done trials you know that there are obvious that you have been allowed to to question the jurors or to bring them in other than asking and the only you could have asked w again it has no impact well i understand what the courts are saying without tom saying what you're saying i mean i'm saying assuming what you're saying is correct yes without talking to the jurors we don't know and i what i wanted to do and i would like to get on the other issue but i would like to offer an analogy that might clarify my point on this it makes it more palpable if you will that this should be treated under that it strains that evidence analysis and that is i suppose instead of a document we're talking about the piece of physical evidence for example a jacket suppose a jacket has been put in the evidence it has relevance but in the pocket of the jacket is a packet of narcotics and the jury finds that and none of the parties wanted that and we assume they don't use them and that they reported to the ba and or or it's found afterwards by the bailiff thing going through the evidence after the jury's done in that situation i think we have a clear situation in which something has been submitted to the evidence without objection never not i don't think either but that would be evidence of a different crime and i understand what you think it might impact that crime but here the jury was specifically you don't get instruction don't consider any evidence you may find in the jacket or the evidence here don't we assume that the jury followed it instruction this was at the bottom of a piece of paper and they were instructed not to consider sentencing well actually your honor i think they do get an instruction not consider anything that hasn't been right that's right that's true but in this was specifically instead what i'm getting to was here there was a specific instruction not to consider sentencing there with you right there told not to consider things outside of the courtroom but here is a situation that shows up in the courtroom and they're not specifically instructed you know calculation was enhanced under the guideline for having been previously convicted of a drug trafficking offense the argument of course is that under arizona law the possession for sale criminalized by arizona statute is over inclusive broader in its inclusions then is the guideline at issue and therefore under the taylor categorical approach possessed for sale doesn't really amount to be the same as intentional well under arizona law there's quite a difference between knowing as a couple mental state and intending and one could be willfully ignorant one could be completely ignorant of the purpose of the quantity of marijuana or whatever other contraband there might be that you're possessing if you're ignorant then i don't pass the no one for sale test well if you're if you know that it know or have reason to believe that it will be sold but you don't care whether it's sold or not you don't intend for it to be sold it is not your willful purpose that to sell and the court held that is not permissible because under arizona law the intoxication defense is limited to those cases requiring specific inten intent it only requires knowingly therefore you can't use the intoxication defense but if you in this context haven't the arizona courts at least and the thirteen days three four or five construe the elements intoxication would have been a permissible defense so in order to reach the conclusion that you were not entitled to a certain thoughts occasion they had to consider whether intent or knowledge was required  that statute and the point is and i see that i'm out of time but the point your honour's is that if in fact it is merely a knowing and i think we have to honor state construction of their own lawn this if it's a merely knowing position for sale rather than an intentional one it is over inclusive of what the guideline criminalizes or enhanced the sentence for thank you thank you will hear from the government prejudices of the members of the jury and counsel and i tried this case there was a very extensive veneers selection process before the trial so the court we did make a significant effort to determine to posses the possibility root out if there were any potential prejudices among the jurors and there was no evidence of that in the in the panel that was selected when you look at the particular language of the penalty provision that was offered by the government we're basically talking about one sentence in one of many exhibits that was offered and the exhibit did not say the defendant is going to get twenty years exhibit says that depending on the circumstances the defendant could get between two and twenty years there really is no this is not a situation where against the defendant it could cut either way i mean if it's a twenty year case obviously that if the defendant is looking at twenty years that's something that could garner sympathy for the defendant if not at least in title to find out it's a jury discussed you are in light of the fact in the government considers this to not be extraneous evidence in other words this was disclosed to the defense prior to trial it was in a marked exhibit we offered it it went in without objection before it went back to the jury i personally offered defense counsel another opportunity to review all the exhibits to see if there was anything prejudicial and went back so i think  everybody discovered beer and i mean everybody seems to be in agreement this is just a mistake nobody picked it up and there's no intention and hence the sense was a mistake it was an object but once it was found out moves we all messed up and we let this go and we found out conversation but in light of the fact that this is not extreme to governance when we look at rule six sixteen i think that there are very clear policy considerations where we don't want to open the pandora's box of discussing the delivery going into what went through the juries what happened then current in terms of jury deliberations and i think under rule six this sixty six sixty in the case law it's very clear that without extreme and any type of extraneous evidence or germans conduct we just don't go there and i think that the policy is very longstanding in that regard and having tried a number of cases and had the opportunity to talk to jurors after the cases and talk to them about why they represented representations by defense counsel it does not appear that it was discussed because the one juror had no idea what you know what penalty she was looking at i'm not saying that this is the case but should there be another category recognized him in classic terms i don't you can't characterize a six trends like it's an exhibit for having sex and yet it's an exhibit that nobody apparently picked up boxes no real dispute that it shouldn't have gone in  that fashion and i tried cases i can't say i've scoured every corner of every page every document that went and it happens and so it's not literally extrinsic but should it be considered the functional  because it wasn't intended to be before the jury it says if somebody happened to find a piece of paper lying on the floor and read it it just made its way into the jury room you know and when i deal with all of my cases i approach things with the concept the fundamental fairness that's why i initially agreed to calling the jurors back to talk to them because you know that's that's what that's what this the whole system is all about and i just  sixty in the in the case law i didn't see an opportunity but i would concur that there had perhaps that have been an amendment or something of the opportunity i would have agreed to it and it is so basically your position on this is the lesson to be learned is read every  one sentence when you look at the record the evidence in this case was overwhelming clearly the jury did not find the defendant credible or her mother credible the court made a specific finding that he did not find her credible the government offered extensive documentary evidence and the basically offered just testimony and the government's position in this particular case there was no plane or there were there is no impact on the judicial system and there should not be a retrial of the case and if we did retry the case we've we've discussed you discussed judicial economy throughout the morning every trial this case would would would create the exact same result with respect to the other issue the fenced cites several cases one of the cases the derogatory case which and numerous cases and all the circuits have at times flushed out the elements of the statute in order to sufficiently notify the parties of the burden in the case and i believe that the supreme court in arizona has done that flushed out specifically what the elements are of the state statute in the state statute specifically requires and knowing possession of the drug for the purposes of sale there's no other way to violate the statute if you knowingly possessed the drugs and there's a maybe kind of somebody later on down the road is going to sell and you're not going to violate this statute you have to knowingly possess the drugs for the purposes you say you would violate if you help them not for possession or not for sale you knew you were going to give to somebody and it would go if you had two hundred or three hundred pounds of it would you say i have it i know i'm going to give it to someone else and i know very going to sell or do i violate the not not this particular statute because if this is actually going to involve this statu basically dancing around the issue because they're looking at the elements and the requirements regarding culpability not from the direction of the statute that it's that's at issue at this case and when you look at those state statutes and statute it's almost a mirror image of the arizona statute where this court has found that it satisfies the requirements for an aggravated felony that they're not being any more questions that have nothing for