all right our final case for today and we are now in the afternoon is united states against robert triggs going to afternoon may it please the court there are two issues in this case but i'm going to focus here today and the under repeat there's no question that we have an error and it's really it's a multifaceted error it's a real love an error to due process there there's an error in the indictment really robert triggs pled guilty to a crime although essentially no one involved in this case at the time knew the true nature of the offense as clarified recently by the supreme so the dispute here is about rule fifty two  whether the error affected substantial rights and because we have a plea case the question is whether there's a reasonable probability that if robert triggs and of course his attorney had understood that an  and here for the record reveals a solid basis for a lack of knowledge defense mr triggs is able to meet his burden just out of curiosity ms fight i know this is all quite recent obviously racism is a recent  argument that the indictment because it didn't state an element was faulty and there was no jurisdiction in the whole case should be thrown out but didn't make any sort in ferguson correct so he there was no argument that he didn't know or that he would meet the plain error standard and i think in that in that case there actually was some evidence some specific affirmative evidence that he knew about it he said something at the time of rust or something that as far as i know that's the only case like that i mean that case was really developing here there are a couple of cases that i don't know if i would say they're comparable but there's d v d s out of the it's circuit and there's bowen's out of the th circuit both of which have addressed a question that i think it's relevant here  which is when the status includes some sort of issue that's kind of inherent in the status it was the definition of conviction and you know the court talked about that case and williams st case as far as i know where the person had pled guilty to a crime but not yet been sentenced and he met the plain their standard because it's not clear he would have known he was convicted  d a very different issue but it was a unlawful drug abuser in possession of a firearm and pew did not get relief in that case although again it's not clear that he made a real argument in that case because the case was argued before or maybe right just after refuse came out but the th circuit is clear that under a huge if where the status involves legal issues there is some element to which the client has to understand  legal status that he has and of course that is addressed in ricky itself when it talks about collateral legal issues that are part of the status but the bottom line here i would say the bottom line here is that this is a fairly and twenty nine is inherently or extrinsically sort of complicated because of the definition of misdemeanor crime of semester violence and then in particular mr triggs predicate conviction comes out of a case where he you know he wasn't represented he very quickly pled guilty to a simple factory with no jail time just given a standard form that more or less told him the case would not affect his firearm rights and then craig's later swore on a federal firearms form that know he'd never been convicted of a domestic misdemeanor crime of domestic violence so there's all sorts of stuff that makes this case  waived your right to counsel in the underlying case and your right to a trial by jury summarizing more complex provisions there i'm trying to we said in williams a few days ago that if somebody spent you know nine years in prison with you soon that he knows he's he's been convicted of felony but i'm ready physically lied to these standards is going to make  we're very difficult to prosecute that's correct your honor and given the complexity of this and also given that here mr triggs had a pretty low risk for going to trial certainly among federal defendants a very low risk so it's really hard to see any defense attorney post rikki if not suggesting to his client that he go to trial on this and there's just every reason given so what do we make of the evidence that he tried to buy a gun a few years ago and was turned down you know what i didn't ask any questions correct i'm not sure i think this is on the record but  that he did to essentially he was buying a gift for his son he was turned down there was no explanation as to why he was turned down the records the government has presented is not inconsistent with that at that point get a new present for my son it wasn't really a big deal this is something that i think both sides could potentially use at trial i think the government i would expect them to try to use it to prove their case i would expect mr triggs to also use it really only direct evidence of his knowledge that could possibly exist in testimony which he will have the opportunity to get at trial but you know we can make inferences on both sides from all this evidence but it again just hence prejudice and expensive prejudice there's also of course this discretionary elements of the plane air standards the government hasn't made an argument on that but given that so long as we have prejudice we have a fairly clear process problem of him pleading guilty to something without understanding in essential elements and he would not have pled guilty otherwise perhaps we can all just agree that that's exactly the sort of case where the court generally does exercise its discretion to make sure that he has the opportunity to exercise his right to trial defense as we now all no it is the record in the underlying is vague whether bail jumping box right doesn't exit battery box and then there's you know it's this form that just lists i think it's like twenty six different crimes and battery is right next to substantial battery and nothing is written anywhere again the judge doesn't go over it it's just another aspect of this case that except incredibly messy perhaps it would have been a defense for ricky for but maybe not a defense that was good enough to risk going to trial even with a low risk at this in the circuits who have come down on this for thus far have all said that a review of the record is almost required in on this record and perhaps this is the big dispute the government does not believe trigs has met his burden that he told the officers he didn't know he was actually very cooperative so he didn't know that he was barred from possessing firearms he voluntarily surrenders them he's he's behaviors out of a person who doesn't have any idea that he is as the case puts it you know in the class of people who are covered by the stretch well into i think that rafe is holding suggest that triggers needed to know that he had been convicted of a misdemeanor crime of domestic violence not perhaps that he was he restricted person though certainly the a t f form in two thousand and thirteen when his own testing  the record is clear that he knew he got a letter saying that he was denied the purchase of a firearm and again under a high if that's not necessary but it certainly was evidence that he knew he was restricted then by two thousand and fifteen well but he might not have known i mean you could have been denied because his credit was bad you know what what assures us that he would have linked that denial to the earlier mr meaner proceeding in which he wasn't even represented by counsel and i'm not suggesting they are but i'm i don't see the i don't see how you could link them i was just addressing that he knew he was prohibited it at the point that he really knew he was he knew that gun purchase had been turned down  i'll move to the record in this case which the government believes is fairly clear that he did know that he was convicted of a misdemeanor crime of domestic violence and in response to clergyman because the statute doesn't say a misdemeanor of a violent misdemeanor could've said that but doesn't say that singles out this subset well those dealing with domestic violence i think there are several places in the record where he was clued in unlike in williams where nothing in the police colloquy at the district court level revealed that whether mr williams had known of his s never prohibit people from looking for it for the record but with what about the provisions whom thirty three b where you also need to have known that you ve well your honor in this case the state court and certainly it could have been lengthier and could have been more detailed but the state courts as far as providing knowledge to triggs on whether he did plead to the misdemeanor battery is quite clear but the he testified in the review of the i testified state court hearing that he actually read the plea questionnaire and  he understood it he didn't have any questions the elements were battery were attached to that he also box was not but he but the elements were attached to it and he said he did not have any questions in fact  correct the criminal complaint lists it as misdemeanor battery domestic abuse and it lists also the elements of force that are necessary for the mr minor battery and further he also i mean he to misdemeanor battery he knew it was his live in girlfriend at the time and he said he freely and entered the plea and was not confused and had no questions it previously he had actually and i believe this would be relevant to whether he understood and freely waived but that he actually asked a question of the prosecutor off the record which was then placed on the record in front of the judge and sued the criminal complaint list the elements  the elements of battery which again outline the force elements and triggs also knew from previous encounters of the courts what a charge of domestic abuse or domestic violence means he had at least one prior case involving his ex wife that did not result in a criminal conviction but again it required him to pay the domestic abuse surcharge and we would argue as i already did but that you know his that he actually lied on his asked if he had been convicted of a misdemeanor crime of domestic violence and then later said that he never looked at the denial but it's to it was still a denial regardless of as you said judge would whether it was because of credit issue or something like that so given this and this fight makes reference to the fact that this case becomes more triable after comes out and that may very well be true but this case similar to berg are in the st circuit the probability of opting for a trial would have increased commensurate with the perception that the government would have had any difficulty in proving the out of added element in here if the government's position is that you would agree and then as the supreme court put of the government has to prove that he knows of his status as a person conclusive and he did tell officers as part of the record during that if you know when they came to arrest him after getting that a t f form that he knew he had been denied