undisputed that minnesota's catchall th degree controlled substance statute criminalizes more than does the federal definition under the i n a the tools laid out in mathis state court decisions the statute on its face and the peek at the record of conviction demonstrate the petitioners win for several reasons st the substances controlled are operative facts with no legal consequences under state v king and information following to wit in a charging document the identity of a substance possessed rd statements of law and multiple plea colloquy is and the fact that the substance appears only after to it in the records of both convictions so the substance is not an element in and reinterpreting cases the government concedes do not definitively answer the elements means question and in misinterpreting pattern jury instructions lastly even if the statute were divisible petitioners are not removable under the modified categorical approach because the minnesota definition of methamphetamine is overbroad and indivisible given these persuasive authorities taylor's demand for certainty was not me a is decision that this is one of the narrow range of cases involving as a visible statute is to invite the following consequences it would create a separation of powers problem and that every time the pharmacy board controls a new substance it would be defining a new crime second it would undermine minnesota's authority to define its own crimes in allowing the b i a to ignore clearly stated law as understood by district court judges all over minnesota and relied upon by prosecutors and defendants alike and i'm no member of guilty pleas would be called into question s ince admission insufficient admissions of guilt including the very convictions that underlie both ask each of matheson's tools in turn beginning with state court decisions the most relevant authority on the elements means question here is the minnesota supreme court case king which held that the primacy board had not delegated its legislative discretion in controlling substances because quote the power to ascertain facts which automatically brings the law into operation by virtue of its own terms is not the power to pass modify or a or the board is the one that decides what's on that list is that what you're saying yes that is correct and that never goes through the state legislature they do a have the ability to approve those changes but on such the pharmacy board if this is an element of each crime would be defining a new separate crime by but but by adding it it's also adding a new way that you can commit a crime says that really despise really dispositive here where i'm saying that if we find that or if this court finds that the substance is an element the precise identity is an element then it would be defining a new crime rather than a means of committing that crime which is our  board has to determine which backs which substances meet those definitions so they're finding the facts that make the statute operative i'm not sure they really answered the question about canning i think the concern you're raising is a separation of powers problem you're saying the board doesn't have legislative power if i understand it in the legislature has to define what is a crime but under you going to under your theory if the board adds a new drug to the list there is now something that is a crime that wasn't a crime before so the board either way can expand the scope of the criminal statute one and why doesn't that why doesn't your argument overstate or why doesn't your argument fail because either way the board is given authority to expand the scope of the criminal statu they're not allowed to expand the scope of the statute itself the element is controlled substance they can add to what would be different methods of commission of that crime right so they can make something criminal that was not criminal the day before without any legislative action isn't that right they can find a fact that would allow someone to be prosecuted for something that was a crime the day before but it's just a different way that they could commit that crime which is means that it would be a means rather than an element because an element is a constituent part it's the the very essence of a of a statute which would be again here the element controlled substance  as schedules one dollar to four dollars so a controlled substance is the crime itself possession of any one of those and the pharmacy board can define multiple different means of commission of that crime but minnesota law states that only the legislature can create a complete crime and so again a complete crime would have the constituent elements the constituent parts of that statute but the pharmacy board can expand again the means it's not it's not the definition of the crime it's a way that a person can commit the crime which the pharmacy board is allowed to do because it is not defining a new crime and if again if if this court accepts the government's argument that a substance is an element then the pharmacy board with must be defining a new crime a new constituent part of a crime essential information can only be considered means as they are circumstances or having no legal consequence this is borne out in all of the complaints in the record of convection in the substances only ever coming and a f g the specific child's initials the initials of a child are hardly going to be considered an element of the offense rather a means of commission of this particular the government relies on cases less probative involving sufficiency of evidence for or government standards of identification of a substance and double jeopardy cases which discuss whether or not someone has been public values of fair notice and i quote avoidance of double jeopardy often demand that the government specify accusations in ways unrelated to a crimes elements and the cases relied on the government by the government the government lies on excuse me are doing just that there about the sufficiency of the evidence necessary to establish that a dried leafy substance was marijuana rather than oregano these cases dealt not with elements or means but with how the state needed to prove that the substance was in fact controlled with scientific testing enough circumstantial evidence enough the court in vail held that there has to be some proof beyond a defendant's belief that the substance is marijuana rather than oregano otherwise there would be no crime you know in the missouri case we thought the double jeopardy cases were significant so regardless of what these other courts might think about it we've already found them salient and a double jeopardy law in minnesota is is different from that in missouri in minnesota courts focus on what's called the single behavioral incident test which again is focused on more circumstantial factors so the time the place and the intent rather than elements based test so here in the double jeopardy cases that have been discussed particularly papa doc if the court there hold that possession of several different substances were separate acts other than separate crimes and they are fell into a single behavioral incident so each less than a possession of each substance was a separate act rather than a separate crime and that is kind of it's in contrast to the cases that this court relied on in martin under this single behavioral incident you cannot be punished cumulatively for those convictions you can only be hunnish for the top count so in this particular case there was also the nd degree possession charge so the person could only be sentenced on that and then in addition could be convicted for the use of those other seven violations of the same statute do they get concurrent sentences on the other ones or is it just one sentence this of them all it's a believe one convicted on a single behavioral incident in part because there were some multiple convictions right yes and so are you saying those are not different crimes each conviction is not a different crime no there are different acts so there are separate acts but go ahead i know there are different acts but i'm trying to figure out whether they're different crimes so the definition of the crime is the same the but the conviction is always for possession three possession they are not listed out as possession of her she is possession of steroids one possession of steroid to you they're listed out as possession that's a great possession of a controlled substance so the violations of the statute typically what the prosecution is going to do this would be prosecutorial just asking as a legal matter could he have been convicted of seven different violations it would depend on the circumstances i think of how counts of possessing cocaine on the analogous facts what i don't know the answer will you don't know whether that would be possible it could be possible but i think again this may actually that my burglary example may be a loss for tips here are out of that was important to me but if you want to switch to burglary and just in terms of if a person enters an apartment building and goes into seven different apartments within that building they can be charged with seven different counts of burglary but that's not going to elevate the particular unit number to an element of a crime so again they can be charged and convicted seven counts of burglary within that apartment building and it's the same be a separate acts but wouldn't be defining new crimes are the separate crimes so you're saying that your burglary example would be just one sentence yes then there are again occurring and whether or not within this single behavioral incident time place and objective but it would be seven convictions yes again just like the seven convictions for the different substances what does it mean to have a conviction i mean there were seven different crimes committed yes but not seven different distinctly defined crimes so seven different acts that were punishable under the same statute the same you would see that the identity of the controlled substance is an element of the offense because state court decisions going back for forty years have required the prosecution to prove the identity of the controlled substance to sustain a conviction but you know you've you've conceded that there's no minnesota case on directly on point correct yes your honor there is no case that says under the best of visibly analysis elements or means but the case law shows that a prosecutor cannot sustain a conviction if he or she does not show that the identity of the element so if they can't prove that the element is cocaine they can't prosecute an individual for a controlled substance offense because they have to prove that it's cocaine but they don't what's the difference between isn't there a difference between proving it's cocaine and not baking powder or baking soda and that it's cocaine not heroin there is a difference and so they would have to charge of cocaine or heroin and even in the th degree possession statute there's actually a carb up for heroin and there's an exception for marijuana if those car belts weren't there providing different punishments it wouldn't matter what the element what the identity of the controlled substance  but the court has to be able to say well this of cocaine not heroin to be able to be charged with to be able to apply the appropriate punishment because of that car about for heroin and that exception for marijuana so it is important that could you read the statute as having the carve out as having you had to identify which precise controlled substance it was but if it wasn't carved out that it was not an element i think for sure the car about it helps but it wouldn't necessarily mean it's not an element because it's not carved out courts have said that different punishments are certainly a strong indicator that it does an element but not the only indicator and we have to look where the statute doesn't clearly lay out as here that it's an element versus mean we are looking at a controlled substance statute that's very similar to the majority of controlled substance statutes where the punishment is described in one section and the list of alum of controlled substances is another section and quite often look at that and say well we're not looking for don't particularly look for where is the word well in that statute we just look at the structure of these statutes which are are fairly common that and controlled substances listed elsewhere so the court would look to case law and the case law here goes back forty years showing that the prosecution must for prison must prove the identity of the element and without doing so they can't sustain a conviction and a jury must what's what's your best minnesota case or the and that that is the case here and lubavitch required jury humanity over the identity of the controlled substance possessed there were two substances found on defendants potentially in his possession one was psilocybin mushrooms and one w methamphetamine and the instruction they prosecution was able to show that those were the substances there but to convict for fifty great possession the jury had to unanimously agree on which substance the defendant possessed and because they weren't required to they weren't instructed to do that they couldn't sustain the conviction because some jurors could have thought it was mushrooms and some jurors could have thought it was methamphetamine but it in that case so it seemed to me there were there were there were very separate  were talking about the act of possessing a certain item so if i'm remembering there was something that was in the car or there were something in there would ditch and maybe maybe the drugs that were in the car were mushrooms in the ditch was that then fed a mean and so you aren't as equally focused on the drugs as on the act of possessing and is that a distinction that doesn't necessarily move the ball forward for you as much as well researched plan or we don't think so because the two elements one laid out our dead end of the substance and then whether the individual knew he or she possessed a controlled substance and so st the jury asked say here's a controlled substance is it mushrooms or is it methamphetamine and they have to agree on that  and then they have to come to agreement did he puts us at so if they agree he possessed it they have to agree he possessed mushrooms or they have to agree he possessed methamphetamine so it we don't see a distinction there because the st when reading all the cases together and prosecutors have to prove the identity when then looking at the jury instructions which are informative the st element says the controlled substance the defendant possessed a control a and they have a blank for a controlled substance and there'd be no reason to in the blank if you didn't need to know the controlled substance you would just have the sentence say a defendant knowingly possessed a controlled substance under schedules one hundred and twenty three or four and that would be the end of it would need to put in the identity of it wasn't an element when read with the cases requiring that they prove that and then the nd element is the knowledge and cases show that the prosecutor doesn't have to prove that the defendant knew that she possessed that particular substance that they proved existed just that it was a controlled substance and that gets to the discussion and bail where it goes doesn't matter what the defendant's belief is matters the identity of the substance is important so the prosecutor has to show that the substance is cocaine or the substance is to heroin and then what they have to prove for the defendant is that that defendant knew that they can possessed a controlled substance so they are two separate two different elements and the jury instructions actually show that when reading them closely so your view is that the you just have to be that the defendant only has to know it's a controlled substance right amount of the case was thrown out the prosecution can't bring the case without proving that the identity of the controlled substance and the defendant has to know that he or she possessed a controlled substance so it's that i partly were re what the prosecution has to prove the identity of the controls and so the prosecution has to prove provide evidence that shows the substance is cocaine as far as the defendant's knowledge it doesn't matter if the defendant thought it was heroin or thought it was a bag of sugar they have if they thought i thought it was some they thought it was a controlled substance that meets the nd element so the st element is we have an identity we have cocaine or heroin or something that is identified on those schedules which has been proven through scientific data or what the prosecutors and whatever sort of collapse of the right i mean it to say that the prosecutor has to prove the identity of the controlled substance means you just have to can prove that that thing that that bag of something is a controlled substance what controlled substances it we've proven that it's cocaine but if they didn't if they just had to say was a controlled substance they wouldn't have to identify the act the exact nature of the controlled substance they could just say  is one my question back to you would be just how would they prove it if they so the court says ok you've got to prove that this is a controlled substance and the prosecutor says well it is here it's a controlled substance  how do we know that because we've taken it through testing and it's cocaine and that's a controlled substance right yes your honor but that's true but the quote then when we look at a jury instruction that says you have to say what controlled substance it is it's so it does require that identity where we see if they may have they proved that it was mushrooms and methamphetamine but the jury had to agree on which one they were convicting for the possession charge so it wasn't enough just to prove that you had these two controlled substances the jury to come that had to agree that the particular controlled substance identify that the prosecution is charging is the one that they're convicting for so it isn't enough just to say well this is a controlled substance it wouldn't matter if it was mushrooms or methamphetamine if the jury could just agree it just say ok he possessed a controlled substance and i think this also goes to the papa doc this case because that there would be no reason on brought up in his example there would be no reason to have seven different convictions if the controlled substance generically was a crime it would just be one conviction why is that do you think if possessed seven packages of cocaine that he can be convicted of seven counts of by leaving the statute or not no i don't think so because it's one controlled substance cocaine and so he would have one conviction for cocaine and the w requirement of the proof of the identity of a controlled substance so if you're in as as my colleague explained if you're in the single behavioral incident you can only be if you have to be convicted of are all of the offenses in the one  the one criminal case if all of the possession was cocaine it would just add up to a larger weight of cocaine it would be seven different counts in that one incident about cocaine he seven different bricks of cocaine so the prosecution would weigh it together wouldn't it from what the case all shows it wouldn't seem that he would say ok we've got two different counts and even in lubavitch he had two separate packets of it would be one crime if there was only one person or if there was a group of people functioning together then you'd have put thirty three dollars crimes to the for though you do it in a for the drug and then you'd have three criminal convictions is what you're saying too if there were three different defendants say they were i think from reading the case all of them that would have to be three separate convictions for the three different defendants so perhaps if in your example one is hauling at them perhaps one one person would be convicted her distributor happened in the mor came down i pods i don't recall specifically the details i remember and the martinez case that the the statute most there projects that i'm forgetting but remembering that the statute there had the issue of there was some double jeopardy concern but that the kick the quote looked at state law allowed a person to be prosecuted so it wasn't a problem it was an element but i'd be happy to look for them provide a detailed answer if you'd like and also with the with some sister you have some sister circuit support on this too with similar statutes similar controlled substance offenses where as i mentioned before the states less to their controlled substance and a separate section and that doesn't lend easily to determine if those are elements or means of committing the controlled substance offense but with the th circuit case we end that i shared with the court when it was decided they had a similar situation where the statute didn't make it clear and they looked at case law and similarly found where a defendant could be convicted for use for possessing two different controlled substances two different identified controlled substances of the same time that was strong support for the notion that that element that identity of the controlled substance is an element of the crime and they also sought the informative assistance of the jury instructions to support that which we so morally have here and i talked about other courts that someone i find in that way i'm looking at statutes with that sort of structure and once the those cases and looks at the body of case law that applies this requirement that the identity of the controlled substance must be proven to sustain a conviction we believe it should find that the identity of a controlled substance is an element of the offense a th of your possession here in minnesota what is your view of the role of the king case and the notion of the identification of the controlled substances in any way so i fully believe that is irrelevant king case was looking out whether there was an unconstitutional abrogation of power by the legislature to the board of pharmacy because it created the system that allows the board of pharmacy to identify controlled substances that would be added to the list and as my colleague said they did that because the board of pharmacy is made up of scientists and individuals who have the knowledge and the better expertise to be able to do that but the court found that it was not an unconstitutional abrogation of power because the legislature maintains the legislative control and the determination of whether those controlled substances were in effect in the legislature at the administrate procedures act in minnesota so far they require a thirty day notice and comment period and after that period of the if there are no changes then it becomes operative as law under the legislature's grant of that through the legislators making powers to the legislature so that we will allow it to be a controlled substance once the board of pharmacy under its expertise identifies that substance and in that case they were looking at a substance that had just been added to the federal controlled substance statute and the board of pharmacy decided to add it to the minnesota statute because the goal was uniformity with the federal controlled substance statute and so they added that substance which was on the federal controlled substance actually to the minnesota statutes and in king simply the court decided that there was no abrogation of the legislative body the legislature is still making the law and those controlled substances that are placed on to the schedules are not a factual means of committing a controlled substance offense they are the elements because the legislature has to teams that once it's been on that on the list by the board of pharmacy that they believe has the knowledge to do that it is and whether it's it with the legislature in your view have to do it that way whether it was an element or a mean means and other words would that process have to take place where goes through the administrative process notice and comment and then if we don't take action it becomes part of the statute does it matter whether it does that help us understand whether it's an elementary means i don't think it does your honor i think it it's i'm sorry i was i just wondered if you knew your view they would have to go that through that process for both elements and means i think they would have to go through that process for both side thoughts are we thinking is irrelevant it doesn't answer the question of elements or means the question of elements or means it's answered by the state law discussing controlled substance and what the prosecution must prove and as has made clear the prosecution for an item to be an element the prosecution m existence or a jury must unanimously agree and we have case law showing that in minnesota the prosecution must prove the identity of the controlled substance that's the st element of the offense and then they  the jury must unanimously agree that that controlled substance is what the defendant possessed and those cases are what are more informative king just as an operation of law doesn't impact th true that the penalties are listed in a separate space here in minnesota in minnesota as a statutory scheme we have degrees of possession so the legislature has particularly defined st degree possession and so when the legislature has chosen to specify different penalties and different substances it has and does the minnesota stretch you'd contains it's penalty within the same section and this is in contrast to the missouri statute secondly i'd like to talk a little bit more about the lubavitch decision the issue there was unanimity regarding a particular act and i'll read from the the decision here john struction is that around for a possible possible significant disagreement among jurors as to what act the defendant committed violate the defendant's right to a unanimous j possession of substance each thing that you hold is a different item do you have any case that says if you hold a pack of cocaine in your right hand a pack of cocaine in your left hand that you've committed two different crimes i don't have a case that says that and i think the reason would be that and you could have convictions for two separate baggies of cocaine a prosecutor publicly would not charge because what they're looking for is to get to that requisite w to get a more serious conviction on the books so they could very well decide that they want to make an account for each bindle of cocaine be a separate count and conviction but that wouldn't really serve their purpose in terms prosecutor charged him with each separate offense based on the separate drugs so i'm not sure that supports your idea that a prosecutor would never charge separate counts of cocaine if the reason is it wouldn't affect the punishment for the reason so it you could have separate accounts of fifty possession which is going to carry a lower sentence or lower time but if you can aggregate that weight to reach one of the higher degrees so to get to a nd degree or a st degree that's what the prosecutor's going to choose to do and papa jack yes they couldn't change or get to a higher charge on those on those different substances because they're not like i know i understand that but they still charged him with seven different counts and i'm just wondering whether that shows that each each drug was a separate crime because we don't see cases apparently where there are seven counts of cocaine in an analogous situation and again i think that it's just because the prosecution is interested in aggregating and making the crime more serious so with  degree possession which you would have with that higher level than you'd you'd get if it f it adds up to if it adds out if it adds up to the threshold right but that would be the if you had the two small bindles it's not going to add up to anything more than fifty is whether that's two separate crimes or one crime and again we don't have any cases that specify that but again so much of this is what's practically happening in quiet rooms and how prosecutors are choosing to prove their cases what evidence they have and what evidence they think is effective and i don't think that these cases are speaking to the element versus means distinction in the way that this court must and is mandated mandated to do under the categorical approach and i see that ok well thank you for your argument thank you