re morning or honors there is no general federal attempts action for an attempted crime to be illegal the statute has to explicitly also prescribe the attempted commission of the crime many crimes do that section one thousand and twenty dollars a day aggravated identity theft is not one of them yet the indictment in this case charged three counts three counts of attempted aggravated identity theft so attempted aggravated identity theft it follows is not a crime the primary issue in this case is whether a district court has jurisdiction to  this court has often criticized the lower courts and litigants for calling things jurisdictional and said look the jurisdiction is derived from statutory or constitutional authority indictment there is some tension in between cotton and rule thirty four and section three thousand two hundred and thirty one cotton of course involved a sentencing issue really an indictment that failed to plead to include an element of the offense or they failed to have an amends right one of the cases that this court addressed was indictment wasn't signed by the four person and in each of those cases the defendants it pled for this court on this narrow issue which is where the defect in an indictment isn't just some routine in defect but it's a a defect that strikes at the heart of the court's jurisdiction as it's set forth circumstance in my entire career i have never seen an indictment that alleged and non offensive in researching this issue before the district court and before this court i was only able to find two or three instances where the indictment essentially made up a crime and that's what happened here and the case out of the nd circuit i think is the mo alerted the court that it wasn't going to defend dukas conviction or there were several defendants in that case it i'm not sure which defend it was but that they were going to defend that conviction because what the defender was convicted of was not an actual crime so i don't think that that cotton addresses that the problem raised by the indictment in this case the government seems to argue that the district court cured the the fact by amending the indictment at the instruction conference the the court eliminated the attempt language from the instructions that was presented to the jury and i guess that's sort of the nd kind of dovetailing issue in this in this case and i guess that sort of state the obvious by lacking jurisdiction to adjudicate a case the district court lacked the jurisdiction to even have the authority to amend the indictment  whether the amendment might otherwise be permissible or not and it's our position that even if this if the court had jurisdiction to amend the indictment this isn't the sort of amendment that this court and the supreme court have an indictment is not a typographical error it's a significant difference between the two the two things one is a crime one is not if attempt was permitted under  indictment and during the trial the government alexa drop one of the counts the nd would be where an indictment alleges a single count charges more than one commission of the same offense or more than one way of committing the same offense a good example is actually in the duke case there was an additional count where one of the defendants was charged with count the it was because there were two possible bases to convict on that count those convictions were able to stand a more classic example is if someone has multiple firearms in his charge with possessing a firearm as a convicted felon and trial the government acts not to prove multiple guns but use one gun that would be sort of that other type of permissible amendment appears from the record that the defense lawyer and i don't know if you were the i was like ok it appears that you knew about this defect before the trial started given your strategy when you raised it with the district court after all of the evidence had come in is there anything in your view the court could have done at that point to curate the court in our view should have dismissed those counts at that time  there's a mistake you know about it could have been cured before trial but because it was a botched court's attention until the end of the evidence that the court may be stuck yeah there i agree that the defense could have raised fense should be raised pretrial well this court has kind of identified two ways where an indictment might fail the state an offense and this isn't one of them those are where an indictment either fails to plead each element of  that's not what we're dealing with the other is if the conduct alleged doesn't falls outside the scope of the of the of the charged offense so you don't think you could have challenged this under rule twelve in the st instance i think we could have i think  rule thirty four and rest of judgment can be made it really had at any point before trial during trial after trial obviously the court was not appreciative of the timing i don't think the government was appreciative of the timing either and certainly we we could have gone that route but there is nothing that required us to we saw the indictment we viewed that we believe that our client couldn't be convicted of the offense that was charged and we went to trial on it on that theory which kind of dovetails back to the issue of prejudice which was that's why we went to trial had this case been appropriately charged it's likely that my client would have pled guilty but you know it had he pled guilty to the offenses that were charged in count two or three or four we would be in a situation where possibly he comes back to this court years down the road and says hey i was convicted of this thing and it wasn't a crime and you know i think the court would likely frown upon i think that's very good question and i think the answer to that there's good arguments probably on both sides candidly i haven't spent a lot of time addressing that issue but you know i guess that would could under the circumstances of this case our position know your honour's is that federal rule of evidence excuse me federal rule of criminal procedure twelve and the united states versus cotton controls in this case and should dictate the outcome of this appeal rule twelve has always required that certain claims the result that can be resolved without a trial on the merits be raised before a trial absent good cause the two thousand and fourteen offense it says must be raised not if you feel like raising it because you have a strategic reason not to it says this is a claim that must be raised the other thing that the amendment to rule twelve did as reflected in the advisory committee notes is that it took out the language that allowed a court at any time to hear a claim that the court didn't have jurisdiction as a result of a defect in the indictment and so the defendant in this case knowing that in fact there was this defect in the indictment so as to forego his obligation under rule twelve to bring that to the court's attention and instead decided to use it a decision to achieve an outcome that he knew he couldn't otherwise achieve and that he believed that he knew that he wasn't entitled to achieve under the enormous amount of evidence in this case  going a bit fast here it's our position in this case that by failing to raise this issue pretrial under rule twelve as he was required to do he has basically waived his right to  question to counsel as to what's the difference between omitting a an elemental an offense and having extra verbiage that doesn't belong in the indictment itself there is no differen both of them do not charge a crime against the united states both of them represent a defect in the indictment so the fact that this indictment and you know to be honest it was sloppy draft  and the judge treated it when he omitted the words from the jury instructions as a typographical error it was a drafting erik should have happened but i think that rule twelve recognizes that these things do happen because this is exactly one of the common causes or common claims that rule twelve says must be raised before trial and so are you arguing that by feeling to raise this pre incitement under rule twelve that he has now waived his right to argue this was a constructive amendment well yes or no he were arguing that he's waived both his right to challenge the indictment in the  instance but also his right to challenge the court's fix in this case he waited too late and he didn't raise the th amendment challenge at that trial when the court indicated that it was going to strike but he set objected to it and said it was improper that the word should not be stricken he did he went well and when we said they should be strict the word should be stricken he said you know i object that would be a variance he used that very word and then when the court came back with its final instructions he indicated that he wanted jury to be instructed with the attempt language he wanted the court to leave again he didn't make any th amendment argument at that point in time he just said this is what the grand jury charged this is what the how the the had the jury should be instructed so there was no i think proper objection at the time that the court w considering these these changes to the jury instructions just to clarify your jurisdictional argument you're not arguing that jurisdictional issues must be raised or trial by motion under rule twelve no no  requirements that charging deficiencies the race prior to trial the supreme court abandon any jurisdictional justification for the exception in the united states versus cotton and so far as upheld that defective indictments deprive i think most of the cases the follow on cases and the predecessor cases also had to do with factual defects in the cases where that there was no crime charged because of factual defects in the current that's an argument that there was no defect that the indictment because it cited the proper statute was sufficient to charge a real crime even though it said attempt which is not a real crime but that's that's a different argument but that's just an argument that there was no defect the stray word attempt had no legal effect well it didn't once the court fixed it but but that's essentially your  argument that it's meaningless from a jurisdictional standpoint because the statute was cited statutes the real crime the elements are covered right over the courts that have interpreted cotton  and not every circuit has all of the courts that have interpreted cotton since it was decided have held that cotton applies to all defects in the indictment not just the type of think in two thousand and two or two thousand and three and cotham held that defects in indictments are no longer jurisdictional and standard waiver principles apply and the th circuit has reasoning of those other it's certain those other circuits are really more compelling and then the argument that's being advanced here today the thing about what has happened in this case is that it was a strategic decision by the defendant to forgo the requirement of rule twelve and to wait and surprise both the government and the course with this motion disguised as a rule twenty nine motion when it's a motion that should have been brought before a trial if it had been bought brought before a trial it could have been fixed easily the government could have gone back to the grand jury and gotten a superseding indictment and in fact this court and nixon last year talked about how important rule twelve to the efficient administration of justice and i believe it was judge easterbrook that said it does several things it allows the government to go back and appeal things that it won't be able to appeal after a trial because of double jeopardy it allow parties to carefully brief complex issues so that they're not being decided on the fly and it prevents game playing and that's one of the things that happened in this court this was a game the defendant knew that he could not achieve the result that he wanted by i think that your honor i think that all of the cases that really have addressed the situation where there's a missing element have been plea cases i haven't found any in my research that involved a case where a defendant went to trial and then got to the point where jury instructions were about to be crafted and delivered and there was this missing element so i would submit that if there was no proper objection in that circumstance that a court would have we would be allowed to do exactly what this court did in this case to craft the instructions in a way that  this case there really wasn't any prejudice to the defendants the grand jury testimony it doesn't matter understood card does that matter under which is that if there's a construct of amendment it's not subject to a section thirty to thirty one purports the only way that a court ken lack jurisdiction is if and indictment doesn't charge in offense against the laws of the united states and is pretty clear that again if it doesn't if an indictment if it's not an offense against the laws of the united states then it would be that in a court doesn't have jurisdiction and the government  clear that jurisdiction is not inherently tied to indictments rather jurisdiction depends on stating offenses against the laws of the united states and indictments relationship to dura stiction is based on whether it alleges conduct