twelfth conceding that there is kovi an error in this case i'm going to go straight to the harmless error issues with respect to that issue good like you want to make clear first that we are talking of this sort of a triple crown violations here there's no indictment there's no grand jury finding jury finding and there's no proof beyond a reasonable doubt as to the date of the deportation so in analyzing the harmless error we have to look to all of those violations so first go to the grand jury a violation grand jury rational juror could find the data deportation that the government needs to rely upon there's effectively no evidence at all so cases like meter and were quite though i have no application here because there's no evidence that the court can look to that was presented at jury trial from which the court could make a conclusion that that jury necessarily would have found under the beyond reasonable doubt standard that the data deportation that the government seeks to rely upon now had actually occurred for or referenced what should a trial judge of diane confronted with the floral for the motion should there have been to them negotiations and said i wanted admission from you for maybe prejudicial it may be repetitive and for all for the grounds may be sustainable but i want i want something in the in writing that says when we get the sentencing if we get that far this occur as a practical matter no district court judge is going to be faced with that problem again because now the indictments in my district and i'm sure everywhere all now contain the date of the deportation the problem here is the end that he didn't alleged a deportation court was led to believe by both parties including the government that the two thousand and one deportation was the one that was going to be used as an element not another deportation so in that case the district court was confronted with a situation where everyone including the government agreed that the proper deportation was the two thousand and one and then the other deportation they wanted to admit as for a for b type evidence so the district court properly analyzed what was presented to him by both parties as a heard the governor file a supplemental expert of record at pages six to seventeen there's a colloquy between the district court and the prosecutor and the district court asks the prosecutor if the two thousand and one deportation would meet the elements that he needs to prove and his answer is yes your honor then he goes on to say but i think the warrant of remove will the most recent warrant of removal is probative of the fact that it comes after other evidence we intend to one of the one of the bases for that motion was not the in the accuracy of the information was that i don't think that it was no i mean i read the transcripts anybody challenge the accuracy of the two thousand and four deportation whatsoever was presented to the jury so even if there had been a concession in that motion which there wasn't there just wasn't the type of objection that your honour's discussing it still wouldn't matter there was no evidence from which a jury could find that  would like to have the government be way ahead of the curve in terms of knowing where the ninth circuit jurisprudence is going to go with respect to thirteen twenty six b and the inherent sentencing at the time this case was brought before the grand jury for indictment thirteen twenty six prior criminal conduct and only after colvin do we get the notion that you need to imagine the indictment that date of removal post dating any felony conviction t then the most recent one so that there was not any confusion for the jury that there was somehow this time lag of three or four years before the defendant was removed now they specifically objected to multiple removals saying it's your propensity and i argued that that not only did it show that it wasn't being offered to show propensity but it was also going to be offered to show lack of mistake but also to clarify for the jury that this person wasn't just immigration wasn't just sitting on their hands with respect to this gentleman that he'd been removed pursuant to the i j a order that he had come back again and been removed again through reinstatement and also help prove identity one more additional document showing his fingerprint on it tying those a file documents to the defendant so they objected judge to bra a grand their motion in the way to preclude that information and i was stuck with just the idea order and i suppose i could have gone forward on the reinstated removal but that again would have led to the issues that are now percolating through their briefs both are initial brief in the reply brief that initially first neurology scared it was outstanding that reinstated removals were not valid removals and were were administratively incorrectly were they were altered virus they were in unconstitutional in respect to and overreaching by the immigration authorities in terms of the regulatory predates any of his criminal history but the record is replete with information both in the p s r and their representations at the sentencing there was no dispute that he had been removed several times no dispute and that if the evidence had jokes abroad which is just the boiler plate kind of throw away we also object to the dates of removal as being a means to preserve that as an objection so again it's we're in a situation right now where this case was brought before the grand jury and then brought fore teacher at trial where now it's on appeal was found seems to be accusing the government that we should have been one step ahead of the ninth circuit in the ninth circuit jurisprudence coming down with  of the indictment becomes important they don't have to allege it i think is a matter of course the i think you'd have better notice if they did allege that dated indictment so i mean i spy personally have made such objections but you don't move to dismiss the indictment because it doesn't charge a serious enough crime against your client so there was no motion to dismiss that could be filed the proper time to object when defense counsel did object at x or record fifty eight and sixty three was when the government tried to get an  enhanced penalty of the two year maximum that was available based upon the crime that they charged in the indictment and based upon the evidence that they offered at the jury trial so the bottom line is is that there was no objection to be made prior to the trial because they indicted and alleged multiple indictments then we would have been forced to either make a motion to strike or not but they didn't do that they didn't allege any of the dates so if they're worried about them or else the spirit of things they didn't take any sort of sleep will steps that are sufficient under the fifth