present sufficient evidence at the trial if the answer is no then can this chord and should this court take additional notice of facts on appeal and if the answer that is yes then whether what the government is submitted whether that is this all relates to the jurisdictional question is control into medium cases not cited by this was missed by the second circuit in two thousand and thirteen in davis and in two thousand and ten a court in the central district of california held following corey  is controlled by the federal government and that is sufficient to show jurisdiction so it's a very lengthy opinion it's a split decision by the court but there's a substantial discussion so i not sure how that ought to alter to argue that it didn't consider arguments that that we considered so all i'm a little was not about that i'll move to some of the other claims i just really don't know your well i mean you're welcome to use your time in any way that you see fit but i'll represent arguably creates a split in the circus so so recognizing that you haven't you're not familiar with this case been assuming that it's correct that all of the all that the government had to show was practical usage and  of the united states do you agree that there was enough evidence to show of those factors well as out of sounds like it i don't i don't know what they mean b i don't know why you would create a standard as practical usage or dominion that the specific statute itself says that you have to have either exclusive the concurrent jurisdiction in corrie one of the things they do or these are overseas facilities one of the facilities was a building in the philippines being rented by the state department for its employees and we held that that was sufficient to satisfy the statute well i would obviously see a very i mean it sounds like that's a a foreign property it's yeah but it's a rental building well and certainly seems to me that you know now you're probably might be moving away from the typical prison facilities on united states soil for which is a proper if it's controlled into maybe there's no question the united states is exercising control of dominion over the over the prison and victor bill right now that really is not a dispute is a council no no i'm not i'm not saying it is not what i'm saying is i don't know why you would articulate a controlling dominion standard when the statute itself says that there has i'll be you can take that up with us on bunk but i think i think our panel is probably bound by our prior decision by well you know i don't want to i obviously i'll take a look at corey c o r y u r e y o c o r e n and i will if there's any way i can distinguish it i will and then i'll move on to the other two claims the first i'll take the sentencing claim first and well maybe you want to dress judge judge who is what i thought was just a good question if assuming that that is our standard then has the government shown enough here i think yes i just don't like i said i disagree with that standard but assuming that is the standard contrary to the very language in the statute and it sounds like perhaps that there's a difference between a location on foreign soil versus a location within the state because the state itself has to see jurisdiction and that's the problem the foreign there may not be opportunity well i'll move to the second claim then the jury instruction claim first we have a dispute about whether there's waiver or forfeiture there it's our position that there wasn't a no one intelligent waiver in this case it should forfeiture and also the dish record didn't hold the final thirty conference at the end of the trial so that's another reason why this court should at least review for playing our it's our position that the instructions were plainly erroneous all the required was an intent to kill it's clear based on statutory law and case law dating back decades if not centuries that for murder you need to have an intent to kill with the requisite now it's there was no instruction on  the defendant had to be found guilty of the charge of the intent to commit murder with the intent to kill as the the manse rant that does appear to be the yes premeditation and in addition because we have a defense a self defense defense of another situation in this case and on reasonable defense of another would mitigate murder down the manslaughter and certainly the defendant in his testimony believe that he was coming to the aid of his friend of his so many and if a jury certainly could have found that although he might have felt he was aiding his cellmate what he did was on reasonable our case in the cases and for common law use that phrase quite a bit it would be better i don't think it would be sufficient i don't think a jury would understand specific intent to kill means premeditated malice of forethought intent to kill and would understand the difference between on reasonable self defense and reasonable self defense it would be a step better specific but that's a i mean the courts have struggled with the time specific intent for years so i'm not sure jury would of that would have done the trick but it would have been better fun i do want to move on to the sentencing claim i think the government forthrightly cited a case called fos for it in their brief which is a very similar situation which says that in this type of instance have all sort of adopted that standard which is that if a single statute articulate small to bill levels of penalties the just the highest maximum applies for a single course of criminal conduct  where they have different punishments within the same statute and this court still felt held that you can't pyramid the penalties in that manner so i don't think that the that that makes a difference i see i'm out of time thank you coun government the government decided to the smith case in the warrant cases compelling the same conclusion as corey albeit in a slightly different context to to the extent cory sets the same standard that the tenor case in the fifth circuit said which is practical usage and dominion defendant appears to concede that on the factual record here the government has satisfied that standard i would say that under the warren case the only way defendant attempts to distinguish that case is by cabin ing it as an instructional error case distinction doesn't really withstand scrutiny if you look at the facts of the worst case there the district court failed entirely to instruct the jury on the necessary jurisdictional element and this court held that reversal of the can conviction would be the presumptive outcome unless the government could establish the instructional error was harmless beyond a reasonable doubt and on nothing else than the uncontested testimony of government witnesses that the crime occurred on an army base this court found the instructional error harmless beyond a reasonable doubt meaning that the conviction there would stood scrutiny under one of the highest standards of appellate review here under one of the most deferential standards of appellate review whether we call it dyno boat or plane air review of a sufficiency challenge to the extent this court deems that the sufficiency challenge was not waived could warn compels the same conclusion here namely that there was sufficient evidence of federal jurisdiction i'd like to turn if the court has no further questions on the jurisdictional issue to the instructional eric lane and i'd like to start with the government's contention that this claim was waived here there's the authority that the government cited united states versus kane which is squarely on point there as here defense counsel signed jointly proposed instructions that modified pattern instructions in order to account for the same case law defendant came claimed on appeal rendered the modified instructions erroneous and this court held on those facts in the post perot's post alonzo framework of forfeited vs wade errors that the claim was deemed waived the same conclusion ought to follow here now to the extent the court reaches the merits of the instructional error claim the parties do not dispute here what standard of review should apply which is at most plain error which means that the defendant first test established that there was a clear or obvious error with the instructions here of the of the various cases on malice that the party cited one case stands apart as the most doctrinally rigorous examination of what constitutes malice aforethought and that is the pineta dhaval case and  categorize is four different species of malice aforethought the intent to kill the intent to commit serious bodily injury deprived heart and the intent to commit a felony when it's that one when we said intent to kill do we use the word specific not intended overall because in many of the cases we do we say that murder is the specific intent to kill and the word specific is left out of here mr coleman says well that might have that might have satisfied it for a bunch of lawyers but maybe not for a maybe not for the jury that would have understood the difference between general intent and specific intent but it does look like the word specific maybe should have been appeared in this instruction and perhaps it would have been more prudent for the parties to have modified the pattern instruction to include that word specific but here the parties jointly read the jones case read the jones case to require an intent to kill as being sufficient to distinguish the malice that is required to prove assault with intent to murder and intentionally omitted a definition of malice that would include deprived heart and that's the problem that was an issue  doctrinally i would dispute that your honor because premeditation now we're talking about the different grades of murder that premeditation plus the intent to kill is what would distinguish first degree murder from second degree murder and here under eighteen aforethought here the jury is a civic lee instructed that it cannot find guilt unless it finds defendant acted with the intent to kill garrett rushing and judged by b to your question while the word specific is missing and the government agrees with that instruction what i can say i was trial counsel in this case and i can speak to the fact the parties looked at the pattern instruction here which is model instruction number three point six which just says that the defendant acted with the intent to commit murder and the parties had assessed the state of the case law they found jones they believe that using the word intent to commit murder would be too vague in light of jones and then specifically modified the pattern instruction to say there had to be the intent to kill the victim  and that the government's admits is more than enough to avoid the issue raised in jones and since we are under plain air review the government would point the court to the hinton case which dealt which that which is signed in the answering brief and in the hinton case the district court issued instructions on malice aforethought that fell into the same exact problem that jones identified and there under plain error review even though jones squarely rendered those instructions erroneous this court declined to reverse under  planar review finding even in light of jones that the error was not playing here where the instructions of void the pitfall identified in jones which is namely giving the jury an opportunity to convict on less than a showing of the intent to kill the court should reach the conclusion and so i'd like unless the court has any further questions on the instructional error point to turn to the sentencing merger issue and here it's true there are two specific cases that are sent to contention with each other lenity has no application unless the statutory scheme is deemed ambiguous and second that block berger and the block protest operate as a rule of statutory construction and so if two offenses are deemed separate under application of the block another case that should be read in conjunction with forsberg which is the d c circuits decision in the ingram case decided in one thousand nine hundred sixty five the same year as forsberg citing the exact same authorities on the same issue and reaching the same conclusion regarding the merger of the two assault offenses assault with intent to murder and assault with a dangerous weapon and what's important about ingram is that dissenting opinion there which was penned by then circuit judge berger who articulate the rule that is adopted by the berger supreme court in albert as sixteen years later namely that block berger is a test of statutory concern is a statutory construction rule and if two offenses are deemed separate under block burger that means that there is a presumption congress intended to authorize separate penalties for those offenses and in dissenting in the ingram case then circuit judge berger said that the proper application of the blocker test would flip the outcome and that consecutive punishments for assault with intent to murder and assault with a dangerous weapon should be authorized and following album as the faithful application of the outer naz blocker test has led even this court to find that the various assaults that are criminalized under the separate subsections of one thirteen are separate offenses that are subject to consecutive punishment that's the conclusion that they could tokay for which granted does not deal with assault with intent to murder but deals with assault with a dangerous weapon and assault resulting in serious bodily injury and so faithful application of the albert asked case should settle the issue presented here which is namely  that because each of the assaults that defendant was convicted of here requires proof of a unique factual element that raises the presumption that congress intended to authorize separate punishments and therefore the total sentence that was imposed here should be left the stand i see that i'm just about to run out of my time much the court has any further questions also been thank you council thank you do you have anything further if you don't have time so i'll just say both  margus were both decided after all bananas and they both said that the difference is that when you're talking about multiple penalties in the same statute that album has doesn't apply instead the supreme court's decision in principle lies and you can't pyramid the penalties all right thank you very much counsel united states very says the red men will be submitted