from nearly all the cases government sites where year he did receive a sentence suspended sentence both sentenced to more than a year but we don't have this case which also happened in other cases that where there's evidence of thought about this and you have your mother she want to talk about too but on this one you find it in part as a plan or a question along the lines of what you just articulated and then you also have a sufficiency claim that for associated with this and on th sufficiency climb it just seems a little bit odd to be talking about sufficiency one we're talking about an element that wasn't instructed to begin with because nobody even knew that it was an element at the time at least nobody involved in this case knew it was a no an element at the time and so the th circuit ha decision that indicates that we don't think of that issue as its efficiency issue because we face efficiency analysis on the elements that were in fact given to the jury and we ask whether the jury had sufficient evidence from which to find that the element was met here you just can't even do that because because nobody understood that race was going to come down and require a finding by the jury of knowledge of felon status know so i think i mean i take your point that you know you would have a stronger argument if you're bound by the record that was submitted as opposed to whether you could look beyond the record and let's just suppose i know you disagree with this so let's suppose for playing our purposes we think you can beyond the record and you can look to what the facts are in the world and then for playing our purposes that means you take into account some things that the jury wasn't confronted with but for sufficiency purposes you still can do that and then so then you'd have your sufficiency claim but in theory but in fact the sufficiency analysis seems like a mismatch here when you don't have a jury instructed on the element to begin with then it seems like you're back to plan aaron you have your arguments on plan or i'm not suggesting that you necessarily want to lose on those i'm just wondering whether there's in fact a freestanding sufficiency claim that would give you the certainty of limiting things to the record presented to the jury when here we're not even really talking about the normal sufficiency rubric because the element was never given to the jury was a knowing waiver it was a voluntary waiver turning st the question of voluntary i know my opponent has suggested the district court insisted that he accept the stipulation of the record bespeaks  opposite the district court twice asked him says on asked if the parties had talked about a stipulation the defendant twice indicated he would be glad to close quote  and ten excuse me said as long as we are able to get that information before the jury we would be fine and then the court adjourned proceedings of the parties to discuss this the parties came back and the defendant stipulation those are both a j a seven away so to the extent that there's knowledge about both i'm taking the stipulation in lieu of testimony that's answered by the j a seven awakes i cite there's also even an indication of that the defendant should have understood that he couldn't be doing what he's doing now which is raising them a series of claims relating to decisions and inquiries that the district court never had to make because of the stipulation that is to avoid the appellate issue the court said have you talked about us give you a nd and then and then the defendant agreed to that i would suggest you know a good tease for hearing to the waiver and forcing it because the defendant by all accounts mr ray mr rodriguez were actually in the courthouse he was apparently in the hallway and the defendant never pursued whether or not he was indeed invoking he never pursued a question my question inquiry about the scope of the privilege that assuming it was invoked he never asks the court to do the waiver analysis once he once had of been discussed and finally he never of course asked a court to conduct the part of balancing which he says was erroneous so again what we have here is this is why you have waiver the defendant struck a pretty good bargain with the government the government gave up its cross examination rights he got in the statements of of rodriguez and he put them before the jury in his closing argument so in that respect  about both taking the stipulation and also continuing to want to the white house to testify right i mean in theory the defense counsel could certainly do that they could say look i get it i mean it sounds to me like i may not get this testimony so sure i'll take the i'll take the stipulation because that's all i can get but i want to make sure that everybody understands i'd rather have the witness writing get i don't just give you that for one moment but what we have here is is is not that y did the defendant actually read to release the witness so i don't disagree with the notion there's not an internal conflict there but on this record what we have is a fairly significant robust waiver  government before he is that is if the government could not put in evidence relating to the death in the details and the nature of a prior conviction so the government of course held its hands in this case before  received based on faulty now to come back around and suggest well the government didn't put into the record the requisite information well that that would undermine the government's bit the public reputation of proceedings and of course this is easily resolved by just simply looking at the p s r here where the defendant three months before he was stopped on th street pled guilty to being a felon in possession in maryland who are so the suggestion that there somehow a miscarriage of justice because he didn't understand his status i would suggest is the lie by both the prior plea to of being a felon in possession  the opening brief frames and then kind of in a related sufficiency challenge on the score and the government didn't respond by saying that there's no such thing as a sufficiency challenge in this context and st i'm wondering why because it's not clear to me that it's official the challenge makes sense where you have a jury that was never instructed on an element and nd if you think that there is the possibility of a sufficiency challenge i'm not sure i understand how the evidence could be deemed sufficient here because there is just no evidence introduced at trial about his knowledge turning to your honor nd point st several courts have been comfortable with the notion that the stipulation alone when you're if you're in a context  but that would just mean that then race means nothing because the whole point of a hey fellas in the felon context i understand the case came up with one of the other disabling statuses but there's a difference between being a felon and knowing you're a felon that's the premise of the entire decision so what the stipulation tell you was that you were a felon it doesn't tell you that the person knew that they were a felon now i take the point that most people when they have a felony conviction we can reliably assume that they know that they have a felony conviction i understand that but usually that's proved somehow there's evidence admitted that at least somebody testifies or there's something that comes up that's what and people know they have a felony conviction right yes but there's got to be some evidence that goes to that point as opposed to the mere fact of having been indeed a person who has been convicted of a crime that is a felony it's a reasonable inference for injury to conclude from that a low that you would be a person who you know about is an earth shattering notion that you would be a person who being convicted in some way not know so so is it do you think that it's a separate it's a separate element to show that the defendant knew that he was a felon then that there was that he in fact was a felon what then in this case for example the one the stipulations made about felon status the jury has given the instruction that the evidence is relevant only to proving that the defendant was  previously convicted of a crime punishable by imprisonment for a term exceeding one year the jury specifically told you can only take this stipulation for purposes of felon status it's not given the option of taking it that into account for purposes of the mens rea now at the time nobody knew that you even cared about that i already had that but that seems to go back to the question of whether there's such a thing as a sufficiently challenge in this context the jury as a vaguely told you can't take into account for any other purpose i don't know how we can say that the ghost of sufficiency well i understand  and i understand that i mean and there's other evidence that you could in theory point to i mean it's not the strongest evidence of knowledge of felon status there's always a there's much more that directly could have been done but everybody either i take the point that everybody is operating on a false premise here because nobody knew that you needed evidence it's not as if the government couldn't come up with something that would have been completely satisfying had they known it's just that we're operating in a strange world in which nobody even knew that this mattered and i'll finish with this no i'm right time but that circle back