judge well the judge misconstrues it as well but in their reply brief the government tends to limit what actual evidence did exist and what was presented to the court didn't meet the requirements of the statute for the remaining citizenship what did you have evidence to show that i think we had evidence to show everything the only thing that may potentially have been questionable but it was evidence was whether in fact the residency requirements truly and completely had been met i do not believe that was a question for the judge so that was a question for the jury to decide once that evidence had been placed before them challenging the government and whether they'd met their burden of proof and the element of allien it they could then take that the instructions that we had proposed that the judge declined to give regarding how derivative citizenship is met and then make a determination how the present evidence to contest that and i sense we what didn't happen here was the jury sent out a note and that note stated does it matter if his father is in fact a united states citizen the judge replied to this now the answer was no no clearly the jury had noticed what little evidence had been placed in the record when i was foreclosed from even arguing closing arguments and wanted to know if that had some type of effect i had submitted a twenty eight say to this court i believe on april twenty seventh citing powell and stating essentially what happened was the judge directed a verdict he removed that element from the jury consideration by answering that question now the government also in their brief argues that this is not a factual question against smith answers that it clearly is a factual question for the jury enough evidence had been presented that mr ortega was entitle to have an instruction to that effect and have a jury make a decision lastly the government fourteen zero nine the requirements for citizenship when a child is born out of wedlock as well as the accompanying california statute which is what is required for legitimization of the child i don't what would the jury saying is that we're not asking the jury to confer a certificate of citizenship we are simply presenting the law to them and if they believe that the law has been met those requirements for derivative citizenship then the government has not in fact proven beyond a reasonable for permanent residency where he swore under oath that he was the father of that child he also appeared at a deportation proceeding which if a historian lets him to where he swore under oath that he was his father and that he was a united states citizen i think there's more than sufficient evidence that he is in fact his there was also a declaration for mr or take its father most likely it would have been through testimony of his father at trial saying that he was born here that you resided here first certain period of time as a toddler he would turn in mexico and then when he was roughly thirteen again he returned to the united states requirements are different but i'm still saying that we meet all of the requirements under the legitimization and fourteen zero nine st we presented sufficient evidence to the court in our offer proof and then subsequently again repeatedly with our post trial motions and documentation united states versus navi that marco's stated that great caution should be used when looking at an abstract of judgment first of all the title placed on there is simply something that may be done to restate the statute of conviction it does not in fact indicate what that person actually pled guilty to so there was absolutely no information in the record as to what mr ortega actually pled guilty to and in addition because the judge made no factual findings we would ask that the court judgment that is all that the government submitted all right thank you found in the a file one of which is a self serving affidavit by the father it would be hearsay clearly as to anything that would be used as against the government it would be hearsay it would be inadmissible but more importantly there was there's a strategy that happened here and that strategy needs to be made clear available for a long time they could have requested the other documents if there were any other documents regarding citizenship of the father of the mother there were there was plenty of time to do this and the judge commented several times this has come up at the last minute why is that i think it's clear it's because this is meant to do exactly what for all three does not allow and that is to confuse the jury now does the government have the burden to show that the defendant is an alien absolutely made very clear and smooth both of her at nine twenty one but it also says that the defendant has the right to present a defense of derivatives citizenship it talks about the defense on page one twenty two and nine twenty three specifically quoting smith must be allowed to present his defense to the jury in other words the government has the burden to prove that the defendant is an alien what we don't have to do is prove that under the near riyadh of possibilities he could not be a citizen because there are who knows how many ways one can be a citizen through naturalization derivative citizenship birth of the mother birth of the father resited if they get injured as a derivative citizenship defense they did not and the reason they did not is because they had no evidence mother's citizenship here all we have is the self serving application in the in the a file of the father there there was testimony offered from you regarding the mother citizenship and the fact that she was living in san diego and there were witnesses there and available here there's no such proffer testimony and there were no witnesses available in fact the judge made it clear the father is not here today page one hundred four of the excerpts of record why wasn't he there again i think it was just it was strategic this evidence is clearly offered to try to throw the jury off of what's relevant if they try to introduce the father's birth certificate then i'm not clear on your honor i see that there is a certificate that appears to be of the father's from the united states q why would that not be admissible it wouldn't be admissible  that's the only evidence the book because what we have is the leading edge of the defendant the government has the burden of proof we did born in mexico a guy says right but my father was an american citizen and i'm entitled to drill bit of citizenship and here's a birth certificate to prove my father is one of united states why isn't under smith why isn't that because it's insufficient under stress you have to have enough to raise a defense you still have to have enough why is that insufficient because there's other of requirements for derivative citizenship there are many other requirements for directives it depends on the not be total proof but why isn't that admissible or at least part of the proof because it what it does is it  have demonstrated the following and then list all the things and then and you must find that he's done all these things where you can find derivative citizenship and you can put that here there was and then defense counsel with trial counsel she could answer that what i know at the time was they were trying to cross examine only on the son's birth certificate now later on when they get a new motion they brought in other documents  and again the court commented we didn't have this at the time but i would say even if we have have some evidence that the father was a citizen that really doesn't go to any that  of all it doesn't go to the alien edge of the planet it tells us what the alien edge of the father is but there is much more that has to be done now for example it if i robber robbed a bank and got away in a red mustang and you know what there was another red mustang that was sitting there on the street and defendant wants to bring in well that mustang there was another mustang there we don't know who that belonged to it could have been that defendants and somebody mis identified him and from all that would it be somewhat you know quote relevant yes but it would be prejudicial because there's nothing that they did no further investigation to find out whose car was it how you know what was at the defendant's car did they do this did they find out all that in other words there was some minimal maybe probative value but it's clearly outweighed by the prejudicial effect now had they said we want to estab citizenship that's one thing but that's not what they wanted to do the claim is that that this evidence would somehow maybe raise a reasonable doubt to the jury and it's just that kind of  evidence that that does cause the sort of prejudice or the confusion on the jury that's why in this case that wouldn't be admissible at and in any event i think it's harmless beyond any reasonable that let me ask you a question along the lines of what judge were lauri's before about the categorical unmodified categorical croce do i understand correctly all you folks submitted to the district court was an abstract of judgment and a copy of a complaint it was a cop i'm sorry it's a copy of the information they should that the person pled guilty to and and that isn't that insufficient under our cases no if you look at the government's supplemental excerpts of record on page three show that in fact this was a drug trafficking crime he didn't solicit anything he didn't possess he didn't he sold cocaine base those are the exact words in the information we look back to the to that abstract of judgment  is what he pled guilty to to understand the rule now that this could be also read to mean that he aided and abetted the sale because that does not have to be specifically alleged under california law i don't know if that's that's correct or not went to sentencing he made it clear and went to great lengths to say i'm really familiar with this case we've had a lot of discussion about a lot of issues and he went through with all the things all the documents he reviewed which included documents submitted by the government which had these that they had there was arguments from counsel about the categorical approach and you know the judge didn't take didn't sit down and say well i find these two things but it's clear i think from the overall record that that's what happened so i really don't think that it would i think it would be an exercise in and in a waste of time because i think the record really is clear that the judge did reasons why he states all the different criminal charges that were against mr ortega pages for eleven to four fifteen he makes his calculations on page four eighteen this is not a case where a judge has just sort of overlooked this this is a case where a judge diligently looks through lots and lots of documents i think it's it should be clear that he did look at these that clearly that the allegation was one of sale and that mr or take it in fact