or held that the person is found when they are discovered by immigration authorities and that's a page seventy eighty nine and page seven ninety one so essentially you can commence the offense prior to your discovery but you do not complete the offense until your discovery by immigration authorities that's why you know if you're found by the state authorities six years earlier and then are later found by the immigration authorities that you don't have a statue limitations defense because it's what it's charged as found in the instructions are screwed up that there are no actions to the instructions when you get right down to it there's really no denying that this guy reentered that he was found in that he was continuously in custody from the moment he was encountered by the local cops up to and including when he was encountered by house and those things started going there's no question about  here there's no question about stature with haitians running is no question about an alibi having the last because we screw up the dates when all is said and done this is the most elegant example of how to prosecute these things with the if it's much ado about nothing there's really no harm here is that the moment right now i realize that for the moment right to being actually to be prosecuted on the charge that the grand jury returned in this case the grand jury returned the charge that this gentleman was found in october they did not return a charge that he was found in march so that is the harm he is being denied his substantial right to beach or to be prosecuted and indeed have a jury determination of precisely what he was charged in the indictment and that's what's behind the styron case and all the cases that have followed created claims on these bases in styron there wasn't really a claim that the guy was innocent that he hadn't that he wasn't guilty of bringing sand into or out of the state that was involved in that case the point was that based on those juries court has never approved a five month gap in terms of the the reasonably near standard in fact virtually every case that the court this court in the supreme court decided the maximum seems to be about thirty months so we're talking thirty gee i was planning to prove i was in miami florida that day i mean is there's no evidence of any of that well i grieve that that is not in the record but there is not the evidence is that he was continuously in custody so in answer to judge a scandalous question you told us the violation is he wasn't charged that he was he was prosecuted for a different crime than the one for which he was indicted or a different date but what's the what's the prejudice now what the violation is but what's the prejudice well that i think there's i think that that that there is prejudice for being convicted on a crime and not charged by the grand jury but number two there is another problem because if you're prepared to defend against the ins finding you on october fifth and then they present evidence that the ins found you in the following year in march then constructive and then an indictment which requires reversal per se and i also believe the fact that when you combine the on mission of the found in and the omission of any requirement that his acts be voluntary that that is a structural error because it combines the omission of clear i think that's a possibility but you know i write maybe i shouldn't be debating the wisdom of this particular rule because it is this court's rule out of the cell says that you have to prove a date reasonably near the date in the indictment so whether we think it's a good rule or a bad rule it's the rule and i think it's binding on this panel and again there's no there's no case that there is approved anywhere near a five month gap the only one that the government could argue i think with either a good thing in this case which had i think a longer argument well yes we did raise the argument but we raised it in the context of a general rule twenty nine motions and the government's argued in their response brief that we didn't articulate the argument and that we were obliged to do so but this court is to the contrary and that actually was followed in the first circuit case of her mood which pointed out that the general rule twenty nine motion and that's precisely what was most major here i believe the rule seventy eight  issue next case is entirely different whereas here the grand jury charge this guy with being found on october fifth and there is no federal involvement on that day at all so i think we've seen this is doubly distinguish now moving on to the jury instruction issues i do think that not charging the jury on the founding requirement is a constructive amendments this effectively changed the case from a found in instructed it would have cured all the problems that had gone up to that point she asked that the grant that that the jury be instructed that he asked of voluntarily answer any has to be found in the united states those objections were explicitly overruled by the district court and i believe that's that page seventy two of the expert of record so i don't think that the government's argument that the constructed amendment issue is not preserved as well founded because it wouldn't make any sense to say the difference would have been made if you just said well i need to found instruction if you don't give it to me it's a constructive amendment it's more than adequate just say i need the founding instruction because that's me and that is in fact what was contained in the indictment so i don't think any additional instruction would be necessary under th all with regard to the question posed on the sufficiency argument as to what the prejudice was here it's interesting that counsel says well he could have prove this or he could have prove that and the fact the matter is that there is no evidence in the record whatsoever as to what he was thinking about proving in fact what is in the record is that this this individual's defense was  that the ins records were so messed up that there was no proof of alien edge and there was no proof that there was a lack of consent to come into the united states that was the entire defense in this case every other element was admitted or or was not contested in this particular situation your argument wasn't put the objection wasn't proven this issue was not preserved in fact i would i would say so because we were working on a very record number one we have a general as we pointed out a and we just simply were not put on on notice that there was any problem and the defend then throughout the entire trial never never said a thing that would put anybody on notice that he was somehow prejudiced by the fact that  he thought that that he had to be found in the united states by an ass rather than by the escondido police department there's simply no evidence whatsoever in the in the in the record in all of out there what about the structural error case and sentencing guidelines as to what the penalty is going to be now does have anything to do with guilt or innocence being found and does and it doesn't make any difference who find you do find it to establish whether or not you are guilty of in violation of criminal law so he can prepare his defense number one and number two to avoid a double jeopardy claim those are two reasons for that particular defense and in this particular situation as you point out judge  and of course the problem again with this general motion for acquittal is it had the government been been put on notice that this was a problem we could ever possibly could have shown that there were other contacts buy ins up before it in the county jail or of any of the times or closer in time because this contact did take place in effect a holding cell in the federal building and not in the county jail so obviously  there was something was going on that course we don't know anything about because we had a general we had a general motion for acquittal with regard to the jury instructions we believe we again point they were given they were given a form found he found in form and where they didn't pick found in verses we entered they did but they could take if they had a question if they truly had a question one would think they would have asked the question and sent out a note to the judge number one number two one would think they were taking longer to return the verdict than they did it was a fairly short term turnaround between the and the end of the instructions and the finding of guilt secondly as we it was  brought up there is no showing of either you want if you want to call it prejudiced or harmless there is that this individual was not in any way harmed by what happened because again there was simply no contest of any of the elements found in element it throughout the entire trial the only defense came through argument of counsel at the end and that had nothing to do with whether or not it was found in or not found unless of course as an questions i'm on the then it continues until this day the this offense is different because what happens here is that you can start the conduct i e you can either enter the united states without permission or remain here without permission but the offense is not complete when the sense does not you bring the charges i grew they did say for the purpose of venue but in the earlier part of the opinion they say that what we're going to determine for the purpose of the constitutional the only requirement is when what conduct constitute