standard that if any record in the if any evidence in the trial record would support conviction with any reasonable jury then the claim is not met has the army has challenged whether the indictment was charged defectively  and whether that's a fatal defective the weather's a fatal defection and he has also challenge the jury instruction error and they're both both claims are based on the lack of the mens rea element being either charge in the indictment or to the jury as something they must find beyond a reasonable doubt so legally behnam or does not have the same framework as this court will be deciding on his claims stipulation about the prior conviction it's somewhat rare i think it's usual that that defendants will stipulate to their convictions that's not present here has he only did not have any felon in possession of either firearm or and ammunition convictions that was very significant to the venom or court that there was not one but two such convictions so at the least that foreclosed any sort of claim for that defendant number three in has seen on his trial the government admitted a waiver that it argued mr has signed saying that he was not convicted of any crimes that would legally prohibit him from i believe the word was using a firearm this is this is a different issue right so focused for sure on whether the defendant knew he was a felon but it's sort of a different question whether the defendant knew that he couldn't prohibit a couldn't possess a firearm because he was a felon that's a step further  you arguing that we should interpret rape as requiring both things no your honor i'm just arguing that the evidence in this case is unique and that waiver that the government highlighted many times at the trial you can draw  it's it's not present in most cases the defendant has represented i can possess firearms which could lead to the inference that i don't have convictions that prevent me from doing so i have been punished convicted of an offense punishable by a term exceeding one year  i'm not saying that he was convicted of crimes that were punishable by more than one year yes he was but the and just as the defendant was not his immigration know felons were prohibited from possessing firearms but it's hard for me to imagine how your client could not know he was a felon well i think that the nine hundred and twenty two g one provision the element is that he was convicted of was where he could have been punished more than a year that's not present here which brings me to my other distinguishing fact in this case that the only properly emitted judicial records of his prior convictions were sentencing minutes in a probation order about a suspended sentence expended imposition of judgment and sentence where he was placed on probation and didn't serve in his heart he had they believe it was two hundred and seventy dollars days credit time served so less than a year and placed on probation he's precisely that that was not an element so it would have been a legally relevant to explore at trial but now that we know and behave that it is an element has he only has just a unique set of facts that well he does have felony convictions they're not of the type  substantially for the defective indictment he didn't have notice of this element the way the indictment is charged it does not track the statutes which this court has says can sometimes cure a defective indictment if it tracks the statutes the statute the indictment jury in this case would have convicted has siani on this record if it had been instructed that it must find beyond a reasonable doubt they have seen on he knew he was a felon sorry they knew he was convicted of a crime punishable by more than one year  there is enough in this record to put that into doubt and conflicting evidence on the matter pardon me educate me he pleaded guilty to the insurance fraud violation which has  educate me as to why he didn't know there was a phony because if acknowledges that a defendant who maybe is convicted of a felony that could be punished by more than a year but then placed on probation and not serve did not serve time over a year  may not have the mens rea that's what the supreme court said in ricky if that that is the type of defendant that could could avail themselves of this mens rea defense and that the government would then have to present evidence to convince a jury that acquit him on a legal defense that he was not able to bring preview hafe so we are we are sort of dealing with the record where everyone didn't think this was an issue and now we know it is so i would say that factors and a new way to maybe try this case and because the record in this case is not like venom or in fact leaves open the possibility that more than a possibility that has he only has never served over a year in prison to whether what his knowledge was about his part convictions and that he had at least two suspended that sort of straight the california suspended imposition of judgment and placed on probation for felonies and then if you look at the other felonies he's only served there's three others he'll only serve served ten months for those three felonies so he just is the type of defendant that court was contemplating or hafe and it meets the first for the bats in air they government proposed that the education status of german t o justified its strike that's does not has a comparative juror analysis the government doesn't attempt to argue that it does and that's problematic that one of the three reasons the government proposed it's not even arguing it's justified by the record the district court did not address that reason and that's part of the reason that this court should experiences and the record shows that the jury made up had a very average high age it looked like that the prosecution got exactly what they were trying to get to without  and and the trial judge who has to look at the people and decide who's telling the truth or not we don't we just have a bunch of words from that that was appropriate how can we turn th because the government because this court this court and the dish court have to look at the totality of the relevant facts including all of the reasons provided here we have to look at it but then we have to make a decision with the judge and we have to defer to the judge because the judge is the one who's got the feel for what's going on the court we give them a little deference here just turning it over seems to me to be kind of strange at this point maybe you could help me with that yes your honor under a lantus and alvarez this court conducts to novo review when there are insufficient findings on the rd prong the rd step of batson and that's we submit should occur here the court said he was satisfied with the government's explanations but didn't explain why the court accepted those reasons as related to the case especially the education status reason which the defense counsel it pointed out is not supported by the comparative journalist the government never actually wasn't i mean the court did say i'm satisfied isn't that a step three ruling saying i believe you that you're not discriminating i would say it's it is perhaps better than what happened in  elana it's that those court said possible but it still doesn't provide this court with a record as to why the court believed but doesn't the supreme court case in snyder versus louisiana tell us that we don't need it to be anything more than a cursory step three clear the decision is still clearly erroneous because has he on he only has to prove by preponderance of the evidence that race was a substantial motivating factor or not the sole so there could be some the age the experience the unemployment somewhat amazed by this to our son free usually usually there's an objection made and we have i mean the defense lawyers are the st lawyers who see what's going on so they object and then we are able to te the district that the lawyer thinks there's a problem have we deal we dealt with that issue well i would submit the record in this case the defense counsel did say that that at least the education status of reason is not supported by the record the government did not government just said it's a combination of all three and moved on and sort of deflected by saying well there's other black jurors that i have not struck yet and that's problematic that the the prosecutor statements indicate that he believed just can be enough to ask you about the education basis because when i was trying to read what happened it seems that this juror who was struck was actually studying criminal justice which seems like actually kind of a relevant reason to strike him potentially and i'm wondering why when the prosecutor says education we shouldn't read that to mean education studying criminal justice because right after the prosecutor said education satis defense counsel said but he has an a an associate's jurors have somewhat high school only some with masters so that doesn't appear to be something that distinguishes this juror the government's response was it's a combination of all three and moved on so the government never said it's the type of degree it's the type of studies they just said status and when defense counsel said an associate is not unique the government didn't offer any further reasoning or clarification and the government has the burden to put forth clear reason strike on a prospective juror was not racially motivated when this court reviews whether a prosecutor's reason for striking a prospective juror was roshon racially motivated the decision largely depends upon or largely rests on the district court's assessment of prosecutorial credibility which is a factual finding this court ordinarily gives great deference to here the record shows that the district court did in fact meaningfully meaningfully review the reasons given by the prosecutor for exercising the peremptory challenge to the prospective juror in fact the district court did not as is counsel  he meant by educational success that is true got a prosecutor didn't give additional explanation but he sized this size it up in terms of this was not a prospective juror who had the the life experiences educational component was one facet of the prosecutor's concern but the life experience and the social media role the role that social media played in the case and the district court made its own observation that there was the district harvey said the thing about social media right to the prosecutor say anything about that your honor believe the prosecutor did initially mention it that this this was a juror i'm paraphrasing who didn't have the life experience to judge the case and the role that social media would play in the defense of the case and the district court observed that i'm paraphrasing th react differently somewhat do you guess it is connected to the life experience point right about your right yes or out not someone they were comfortable with for those reasons when you consider the the other the average age of the other jurors with life experience that the prosecutor was looking for this is  a factual finding that the district court made and this court should give deference to that this is hard for us to tell from this record how all these jurors were right and whether there were other jurors who are a similar age to this struck one i'm sorry your honor it's hard for us to tell from the record we have here how all the other jurors were you know interrupt i believe that if if in the excerpts of record that there are it may be part of the the jurors ages and names were given and that if you can that the court can if you cross reference that get the age of the jurors and it's hard to tell who the government accepted and didn't i mean there's kind of a lack of winding up of who was who honor but but the age but the ages can be determined and that's that can be that's something that can be termed the ages of the jurors but we don't really know whether the government accepted other jurors who were the same age i think i think your honor i think we do i think that the average age of the the the twelve that were chosen the average age was was fifty four i believe but we have to just do a statistical probability to figure out there must that means there weren't any young ones i believe that i believe the the youngest was thirty six dollars believe if i who was who wasn't struck yes your honor and well how do you call that like where which pages of the record do we put together to be on the tell that for sure one moment i could just have one moment it seems like an s c r seven hundred and ninety eight and eighty thing where i think the government did strike two young people but then how do we know that there were some left i'm sorry and it took me a moment  excerpts of record eighty thousand eight hundred and four the twelve jurors ranged in age from thirty six to eighty one is and the average age would between those two extremes thirty twenty so we don't think the government remove them all the way the records not clear as to how it's only clear as to what when the dust settled what who was on the panel the average age think the records not clear enough just to address who was removed other than this one that was challenged so if we thought there needed to be more factual development here are there more records anywhere like would it be possible to have a  figure out more about what happened with this more dear your honor only my understanding only in the sense of what the district court may have institutionally have in its recall in its records or any notes but i don't believe with respect to the rich hafe issue i would say the the defendant has to show that the jury instruction the incorrect jury instruction was that there was a reasonable probability that the jury would not have found in correct guilty with the correct jury instruction here the evidence shows that the defendant w that the jury would have found that he knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year a felony in this case what's the standard review for us is it  at the very least the th prong of a planar cannot be met by this defendant he cannot establish that there was seriously affected the fairness the integrity or the public reputation of the proceedings the jury given the evidence in this case where the government was required to tender evidence of his product in dictions an unusual situation as mine but but read a father this element of him knowing he was a felon and you're opposing counsel is arguing that he never actually served a term of prison for more than a year or so maybe he didn't know that he have or could have been forced to do that so what is your response to that that that is certainly a far fetched possibility given the judgement the abstract of judgment where the california courts and its him to three years imprisonment he may not have served it but we do have that evidence and also his his other proc conviction where he e r six excerpts of record six hundred and six is documentation recitation of his rights he initialed a document indicating he understood the maximum punishment he could receive would be a fine of ten thousand dollars and or senate's to state prison of five years under that with this evidence there's there's really no reasonable probability and that's the standard and this is your argument th with the no knowledge of law and ignorance of law is no excuse that any trooper one year is a felony too i don't believe the law requires such precision only that the person had been the person may or may not know that it's in the vernacular characterize as a felony but the person has to know that they've been convicted of a crime punishable by a term of imprisonment exceeding one year  it's the felon status that triggers the restriction on the firearms i think they have to know they're a felon and a crime punishable by a term of imprisonment exceeding one year under the statute definition definition is a felony so can i ask you this with all the other conviction documents the abstracted judgment showing you've been sentenced to prison in california for three years this are six of six i believe went along with his conviction for insurance fraud where he was given a probationary term which converted into a judgment   lesser any other questions about the risk hafe issue the other issue there's there are a lot of moving parts in this in this appeal i just address the the honors st to judge for then your question about further exploration of the record on the batson issue it's my understanding this your district in nevada does written peremptory strikes so i believe there should be some i don't know if it's a chart or what sort of form that the judges use court and with a different judge but this is the same court and it appears that the judges follow a similar format when they do offer record when written peremptory strikes you mean you have been able to secure information that all the judges fall of the process no but from my reading of this record it tracks with what's happened in other cases where they go off record to do but there's nothing congress writes while the jury sits in the box there's nothing in this record th says since i'm being convicted of an aggravated felony i could be deported that seems like he's signing i am being convicted of a felony which is the thing we have to show he knew it i agree with counsel that it's not the felony it's not the word felony that nine hundred and twenty two dollars g one uses the word crime punishable by a term exceeding one year so aggravated felony does not get you there but that same document states that the quote but the exact words used were written dition of judgment and imposition of sentence is suspended we as lawyers know that's a very technical set of procedure in california but for has jani a lay person might hear the word suspended and i so i mean ok one there's there's a line eleven something is the thing about i know i'm being convicted of an aggravated felony but line ten says i understand that by putting no contest the maximum punishment i could receive suspended so he wasn't actually to a lay person that would mean they weren't convicted at that offense because the writ judgment was not entered and he was placed on probation this is as i understand it's i it's conflicting evidence and at best conflicting evidence does not show overwhelming and strong evidence on this matter which is what under a fair hand this requires when it's this type of error of a missing element in the jury instruction or an indictment  error review how do we think that this is not good enough for the government on planar review because the plain a review is this is strong and for the substantial rights prong it's strong and  convincing evidence is what can overcome the bright the violation of the defendant's right so if there's not strong and missing evidence then it does impact the defendant's rights and because it's a missing element it's the type of there that warrants relief under the  thank you very much and