received a green card in two thousand and seven and in two thousand and twelve he was he suffered a conviction under the california health and safety code  the straight word to say that for anyone that ever dealt with that but so why i think we know what the facts are here but so we previously found that california controlled substance offenses reus portion of this case of this statute has only two disjunctive francis use or being under the influence and anyone who's under the influence has used a substance and i would argue that someone who uses a substance and given that distractions about addicts is also under the influence so therefore statute is not so i think that cuts against you or the it would cut against us on the construct substance portion but not on the actus reus portion of you know i understand the controlled substance problem with you have if you read the statute so that some jurors could think it was him fed them in some could think it was cocaine and the instruction basically said it doesn't matter you're all do so you don't have to be unanimous then you have a statute that's not the visible and  you can't create is a visible under control in supreme court authority but here you don't have that now you're talking about the use your be under the influence and i don't understand your argument what matters with the visibility is if suppose you had a criminalizing in federal means and coffee and a jury could convict if six of them thought the person had used but for use or be under the influence i don't see why it wouldn't since you can't be under the influence as you said was out used so my argument is that there's california law that's an unbiased decision and it goes to the california case of people versus adams which the dissent in martin is lopez argues is not definitive california law there's a lot of disagreement about it dissent argues that it wasn't used by california courts in in determining many california issues so therefore it should be certified to the california supreme court different just trying to phrases they're here in this use or being under the influence is only two and that's what i'm arguing that they are indeed one  so there's also a couple other arguments that i wanted to raise before the court one has to do if you want to be modified categor be that just fit now the plain language although let me go can we make clear what i'm trying to ask you they obviously did not make my question clear before the whole point of this  analysis is to make sure that somebody doesn't suffer the federal penalty for something that wouldn't be a federal crime so the point of my coffee example was the guy might have just had a cup of coffee and that's not a federal crime even though some state might treated as a crime had that's why it really matters whether it's the visible and whether twelve jurors had one rather than  being under the influence means he had two of  you i don't understand why that's broader than the federal crime so it could include somebody who's guilty under state law but not under federal law well under the state law it just says use of being under the influence yes and i believe under the federal law you're saying somebody should be under the influence right somebody to knowingly or intentionally right at least that's the that's the but then don't you get into the next question as to whether it's  realistic that under a california law they would be connected knowing and using i mean using or being under the influence when they were drugged by somebody i mean wh if you're hypothesizing that there is a broader california law it has to be within the realm realistic possibilities so if you come forward with a case that shows you can be convicted under this statute your different ways it's just different destroying phrases like different ways to commit this crime rather than being elements is different crime problem as i think we argue prior decisions that yes that it's it's an easier push uphill for it with the prior decisions but i know you wanted to save time right i do want to say so why don't we h solid on the amphetamines part of the i'm kind of curious about this argument where i just missed it in the briefs i guess where for federal law you have to knowing and knowingly and intentionally is whether or not under the two hundred and thirty seven dollars a to b whether the offense relates to a controlled substance so there is no knowledge or apartment they're just looking at the state statute and whether that meets the definition i think that that's what the federal gr did mention it in a supplemental brief when we asked him to address martinez lopez correct but it was never right for the agency it was never raised in the opening brief the entire argument from day one is always related to the controlled substance itself and that at the at this race requirement of martina slo particular statute i know that there are defenses you can raise for if it's been something that's been prescribed by a doctor we talked over each other you started answering before i finished asking so we missed some words of the others  what i'm asking about is why would the california statute be broader than the federal statute in the elements of requires if somebody could be under the influence though not intentionally so for the california statute but under the federal statute he would not be guilty of the crime unless he intentionally  writer this is something that wasn't addressed in the briefing so i don't really know enough about the california law i mean i just know that for the actual ground to remove ability it just relates to controlled substance well i think the best answer to that comes from what judge restore and he said in terms of you can't just come up with anything that could possibly happen or have to come up with things that i mean there has to be some to that and i think that's why the question was asked whether counsel for the appellant was aware of any cases where people had been convicted of eleven thousand five hundred and fifty when it was unintentional and he said he was not so when you look at it it we have to look at it has to be maybe a little more attention as a law school possibility out there i mean if if there's really some likelihood that that could happen and we could really see at or there are examples where what happened we have to look at that pretty seriously so i think that's what judge seinfeld is saying if that were in fact the case that's my concern and i know by the police and that was the reason they get gave that the police would probably take that into consideration also getting but i'm not aware of any case where someone has been you know it's a gateway drug kind of situation we're just not very straight on this panel here i can say that that i believe they come in pills i'm not sure if they're in the article i really don't know i've never done anything myself oh well that's self serving you know similar methamphetamine d that it at seems like you're coming up with that hypothetical that just would never happen well i'm not sure the the federal statue so there's there's that argument but i hope somebody could wind abusing and fatter mean and if he's arrested and under the influence or he's given under the influence so it's extremely difficult to you know show that it was it was inadvertently taken so that's how i got my question about consumption was to find out whether it was in as far as that goes to one other thing that i just want to mention just briefly is the what about the jury instruction why doesn't the jury instruction to the jury tell you if you didn't do it willfully recollection of the wording in mathis then it could be resolved based on that on the statute so the jury instruction is not part of the statute and you could resolve this just based on the on the plain reading of the statu ok well you're in overtime now so thank you but i fear argument this matter will stand submitted