because they affect a framework well within which about this trial proceed it reversal of the conviction is proper under struck a precedent in light of these deprivation this court and the on bank decision of united states versus gown and reversed a conviction on grounds of plain error when the judge and not the jury decided the materiality element a section one thousand  point however we believe would be united states versus met jock where in the trial court in a non evidentiary pretrial motion and over defendants objections decided the jurisdiction governor has to come in and bring in a certificate for somebody with says oh yes this bank is just for but after i see it on the side that's right there has to be some something to show that there is this sort of delegation of authority because we are so many other united states agency does not normally give authority and how else would have an individual know whether there was any promise the existing unless there was some sort of or delegation authorization that was submitted agency or acting in the in lieu of the e p a then you have no quarrel with the notion that the reports that were being sent to be used then were a matter within the jurisdiction of the here which lasted as a next question of fact and law so that the government proved that the docket for use were simply used by the defendant where they were submitted to the pew that's the question of fact and the question of law at the district court ruled ruled as a matter of law that a multi person apartment building is a is involved interstate commerce and the government only had to prove that it was a multi state apartment that it was a multi person apartment building act by statute is directed to provide for regulations statute also directs that it will grant primacy to the state agencies which then is from the scene of my excess of record and from the scene of my register equipment the federal register for the prom with the northern mariana islands and which it acknowledges that the unanswered in garden and says very clearly that when materiality is not charged the jury in the element was left out altogether that was still harmless in the nater case the nadir which is the supreme court case clearly states that the failure to get to charge an element entirely to the jury can be harmless error and there are several other supreme court cases in the rose case in the poke case among them which suggests that because it does not go to the so the theory of the of the of the case are just for the defense the defendant defense in this case was that someone else had done it or that the documents were not in fact false the defense was as the rule stated in nadir does the record contain any any evidence that could rationally do a contrary finding nice to meet that it does not if you look at anything in this record your honor i would qwest that you look at the testimony of their chamber  was the first element and they cooperated in that instruction that it had to be a matter with the jurisdiction of the united states environmental protection agency seems to me that that arguably presents the issue of you as the action is one of the elements which was taken from the jury but that the issue of agency jurisdiction was you know i think even if the jury is the first element so that made possibly be a line of distinction here in terms of whether this could be viewed as harmless and why not when you say court there is to not materiality was an issue for the judge and not for the jury and so there was no evidence of materiality committed was at all and the court found it was harmless because there was overwhelming evidence in the record and that is the case here  regarding jurisdiction were in fact proven to the jury so they are in the record and available for the court to make a harmless error ruling which is what happened in the smith case which was after magic the court the court and smith case and i think we've had a full discussion but i'm troubled about another aspect of this trial and that is the fact that the march you know count five was presented to the jury strictly on the theory that there was a false statement twenty eighth in that league but the falsities the report said this is the data for february and it listed some data for february twenty eighth that data had been changed from data that have been collected for february twenty  not it it's the did the reports that he lists all the data that was accumulated during the month of february and he falsely stated that this is that that i didn't read it that way i see the report simply saying that thousand and three there was testimony that the defendant received a day after february twenty seventh where did he make a false statement that's all i want to know i think this is a concealment case quite rightly by changing the february indeed there's plenty of evidence to support a conviction but i just don't seen it seems to me that we're comin here under the constant the false statement of the other one the two aspects of ten to one vote falsity and consume of this in the consumer case unless you can it's fair to look beyond the four corners a document to see whether or not the how can you look beyond the four corners of the document when you do the manifold space there that has that the rest observe the document that is the basis of the false statement i don't understand that well it quite understand your answer but if you have if i represent that these are the samples for february and i omit one that is concealment but it's also a false for a presentation as to the number of samples that have been taken and that twentieth and it should have been the twenty seventh you know and that the day they came in on the twenty seventh contained numerous results of twenty results positive results for bacteria that was in the water that the defendant did not is the fools representation that the document required him to state that this represents all of the samples that we took in february that would be a false statement or false representation but i just want to know where he's called upon to make that twenty eighth or any other particular day i would concede that we would have exactly the problem your honor suggests but this is a report for all of february two thousand and three so it is to include the data from paper two thousand and three the jury number one of the things we argued to the court is so that it continued was that when you read to the federal register that the government relies on it doesn't state that this policy is actually granted furthermore when one looks down that the government who has the burden of proof has to show none of these things were done and that this be can permit and they did not there is nothing of record to show that furthermore this forever register was never submitted jury was told you don't decide that's been decided as a matter of one of the jurisdiction exists they were told that before the trial began they were told that after the evidence was concluded so beginning the trial the jury knew jurisdiction was never