with the substantive fence of manufacturing marijuana on knowingly intentionally using a hazardous substance on federal land that harms or creates a serious risk of harm to animals or the environment they were also charged with conspiracy to manufacture marijuana plants or more the actual count of manufacturing marijuana thousand plants or more and then there was a fourth count involving mr cortez about illegally reentry the issue specifically about what knowingly means in this in this statute statute of course is twenty one you say they had to know it was on federal land that's right it's a question and that's really what it comes down to it's it's  the section say forty one a twenty one u s c a forty one a one an eight forty one b six and there's the b six language that is the focus it's serious it's a separate offense in that it carries up to five years in prison clearly i i i would say it's not just jurisdictional but it's substantive as well the jurisdiction the federal jurisdiction is already in the case under twenty one eight forty one a one in the fact that it was a conspiracy and and the actual substantive offense this eight eight forty one b six was subsequently added and specifically the intent was to criminalize you don't contest that you didn't contest that it was federal i am yours or they didn't they didn't prove it your client knew it was very real life exactly right and i think certainly for the purposes that's what we're i was not trial counsel i think that's the record is very clear about that is is that they they prove that these two men were on the land it was federal land the i think that the record shows that there was no markings that it was federal land there was no fences no signs no trespassing signs nothing to indicate that this was in fact federal land  your interpretation is not necessary to prevent somebody from being tried and convicted for innocent khan well that's i mean i think that's what the conduct was an innocent whether it was on issue i think what what's trying to be protected is a is a absolute element of the offense polluting or using these chemicals on federal land there is no i think your argument w that he had that the government had to and had not proved if they knew that this was federal law that is that the argument but it only goes somewhere if in fact they needed to prove that i think  that has to do with the a mexican who came to the united states and had a fake i d and the issue there is whether or whether the government had to prove that the appellant in that case knew that the i actually belonged to another person so there was this knowledge requirement that went beyond just simply the possession of the false identification it was some social security numbers that the language of the statute indicated that it whether or not it belonged to a real person or not the court in that case ruled that in fact that was an element that in fact they had to have to prove i think what's going around and around on these cases i think part of what the the court always looks sad to see actual construction of the statute and i think that's significant here and i think the the language in the florists case talks about the language in that in the statu and where in fact the the actual language of knowing appears the knowingly language appears not only to the i'm using the hazardous substance on it but just right next to that is unfair federal land so we would certainly submit that that's a separate element that has to prove be proven that they knew that they were on federal land the other issue  think the the excitement video cases talks about the this other element of whether it's innocent conduct or not is when there's a question about whether it's the jurisdictional issue only in this case we we think there's clearly clearly jurisdictional issue but that's not the only issue it's a substantive issue about whether or not that this that this was done on federal land there's not there's for instance there's no  statute is not protecting privately and there's not a concern about putting chemicals on privately owned land that's it's very specifically that would be that would be illegal well not according to this is not written within the statute that this statute but if illegal activity seen don't have that the point i was trying to make it is different than excitement video because without the statutory interpretation there you wouldn't if i had you to be  publishing legal activity here you wouldn't be publishing legal activity right and clearly the argue the basic argument i've been making is simply that that that knowledge applies to the federal putting it aside excitement video it in fact goes to the construction of the statue lectures if i went out and i bought all these exact same stuff that was present in this case and then i have a cordon of a backyard and i'm putting the exact same stuff down there's nothing illegal about that it's education left ended up in various different places ended up back into the syria when he was arrested at the time he basically  he was then read read his miranda agreed to cooperate with the government went into a room and was actually interviewed by officer jackson that wasn't over president he was asked a whole that is the big point and that's the reason in court i'm sure you've recognized judge conrad actually did give him the word option for except the response was and even though we went all the way through a three day jury  he admittedly that everything that was presented at trial against him which included all the information concerning the allows for concern and rat poison everything that made him look guilty he agreed was correct turn to the table it vas the government noted later than the time of sentencing of everything that he knows about our position is he really very uneducated just doesn't have very much and then by  don't know anything i was asleep all the time whatever he was going to say but we don't have we where you would journey back don't have a really incomplete record we have kids counsel doing as i say m district of virginia on behalf of the united states may it please the court and i will just go ahead and jump into a big distinction from gloria's figaro up because i think the court's questioning of the defense attorneys got into a variety of the points that i was planning to raise so glorious figaro on and the supreme court's interpretation of section ten twenty eight a in that case does not do anything to change the analysis here for a couple of reasons first of all floors figaro but not dealing with the jurisdictional provision and in the context like we have here where we're dealing with a jurisdictional provision the tradition is longstanding and clear investments we have requirements don't traditionally apply to  comparable to the grammatical construction that was efficient for us to grow and we also need to know this sort of key point about the legislative history in each of these cases excitement video f the other cases that we've been talking about in the briefs the purpose that congress was attempting to serve through a particular element is key to the courts and perpetration of how the modifications in the sentence apply to that element pluck to apply to specifically more culpable conduct of using someone else's means of identification when you knew that means of it in denigration belonged to someone else in the legislative history the examples that congress had used for the dumpster diving and other conduct where the defendant was pretty much everything another individual in choosing what identification numbers to use and that was a particular harm that congress was guarding again highlight show that this focus was on the fact that federal land was being abused by people manufacturing marijuana and other drugs and the need to take care of our federal lands and protect them from th degradation and pollution so given that different type of legislative history this case is really different from floors and i don't also that there are multiple cases that and it's context of not applying to jurisdictional elements and also being specific to the wording of the statute that the court we're facing here i want to respond to a couple of other point are not within the sort of confines or danger of what this report was attempting to guard against there the conduct that the defendants were engaging in here was first premised on violation of a one so being actively engaged in the drug manufacturing crime and also they were using the poisons and chemicals in a manner that was specifically harmful to the environment and all of that had to be proven that we aren't within the context of excitement that because congress generally has jurisdiction over drug crimes through the commerce clause this isn't a jurisdictional provision but that argument is incorrect because for each additional offense that congress defines even in the context of drug crimes there has to be a jurisdictional hook and here the jurisdictional hook for doing these additional things and committing this additional offense while manufacturing marijuana is the fact that this occurred on federal congress could not or could chose not to regulate if someone sort of burns down their own house woman in a meth operation or is doing this on their own land that isn't within the purview of the statute so here the on federal land language is purely jurisdictional so under either the rules of law applicable to jurisdictional provisions for pertaining to the otherwise innocent conduct there is not any i mean so the rationale in the mark to apply the other words i thought that you were making the argument had to be jurisdiction of the federal government right criminal law this well there are two i'm i apologize here and i think i may have confused the situation there are two ways to sort of independently about the for the former on the former it wasn't jurisdictional you would lose no we would not your honor because there is no criminalization of otherwise innocent conduct the fact that it's a jurisdictional provision is just an because the supreme court in fiola use the language of it isn't enough to just be a jurisdictional provision in order to get under the line of precedent that says that mentoring requirements don't apply to substantive provision then we get under the cases such as excitement video and florida's figure roa that say that when you are not criminalizing otherwise innocent conduct similarly don't apply the mentoring requirement to an element like this so there are two separate strands of cases here and the first case is determined by such cases as cooper that was dealing with other jurisdictional provisions like effects on interstate commerce and polluting waters of the united states wound it all up and i wasn't sure i did understand it so tell me leave aside the other bad conduct and know that that's not i know where that is now understood your honor then and they say well that doesn't matter because look at this two thousand and nine supreme court case well i think the floors argument is along the lines of the otherwise innocent conduct and it doesn't change any of the analysis that courts go through in distinguishing excitement video and united states versus jeffery is important to sample of that and there are other cases that continue to apply these distinctions against excitement video after floor as figaro so there's that doesn't affect this analysis but the jurisdiction separate basis to have the government succeed here if there isn't another basis for federal jurisdiction under the six and the defense argues that because the core courts already have federal jurisdiction because this is a drug crime we don't get under federal law and with viola saying that knowingly doesn't apply to the jurisdictional component of that to my only point in that regard your honor was that because this is only interesting because congress needed to have jurisdiction for this additional conduct of doing these things that would be chemicals while manufacturing marijuana but you can't get out he was not entitled to application of the safety valve here and there was certainly no clear error in the district finding that he did not meet his burden to show that he had provided all information to the government as your question noted judgment under the safety valve provision there is the obligation to provide information this is separate from the acceptance of responsibility plus you argument where is enough and can sometimes suffice to begin answering questions under the safety valve the defendant is obligated to provide information it has to be expansive information the court's decisions and i do and otherwise refer to i mean volunteering information giving a broad disclosure it needs to include information about co defendants or coconspirators conduct and it really is a different kind of test than what we're just looking at for sort of did the defendant answer the questions that were put to him  the arguments that mr graham cortez makes would have been improperly attempt to shift the burden to the government but the burden was on him to affirmatively demonstrate that he had told the government whatever he knew and here this is in no way like a case where the government defendant said something that the government does not believe that defendant such as if a defendant were driving a car and there was a box and he said he didn't know it and drugs and he didn't know anything else about the organization and the government says he didn't believe that this was testified and others that was said that he hadn't been there and that they had arrived only a week before and had done nothing and that information contradicted the journals that had been found at the camp the phone of mr cortez in particular that included photographs of him even before the marijuana plants had been put in the ground ground and other things like that so this was is not a case where there's anything speculative about the information that the government maintains m had not answered these pretty basic questions about the time out at the marijuana grow operation mr bostic noted that we really never got very much to the growing of the marijuana in the proffer that occurred and he also said that the government was not sure if it was seeds or if the plants were already there or they were given small plants so they were given these were fundamental facts of the background of this marijuana operation where the information was simply not provided to the government and given the requirements and i do i'm in the other cases along these lines that was the defendant's burden to give this information to the government and his burden to show that he hand and that burden give the district court a shot at it well i think it was initially if it were not an argument a jury instruction issue that wasn't preserved this is a parliamentary issue of statutory construction and i think that would lend itself to do an overview  and that's once again that is the argument is and that's what we're looking at is is the statutory construction i think your thinking raise that for the first time on appeal i believe so  because we're going right to the statutory construction the issue about whether it was solely jurisdictional issue the language here we were submitting that matter of ordinary english grammar it seems natural to read the statute word knowingly as applying to all the subsequently list elements of the crime and it makes a point of not it doesn't mean they're separated by one or two words or seven words it means that knowing lee applies to each one of those elements and i think the language went up the actual statute of a forty one b six it talks about knowingly or intentionally uses the poison than just structurally different statute than the glory of god or a right and i believe the structural statute of those other cases the the word knowingly is much further away from the contact that is the words that it's actually applying to so that would just once again reinforce that playing grammar in english reading of that statute i think that's really our our focus and our argument on that is that it comes yeah but but they but the language that it talks about at the very end of that sentence is a means of identification of another person and that's the that was the issue was whether the knowingly applied to whether they whether the defendant  using whether the defendant knew that person was really a person so in fact that language is at the very end of the sentence and how is that that you thank you very much for the both of you for quite a point is that correct we very much appreciate your efforts for your client and we couldn't do our work without you so we very much appreciate