case as appointed counsel after there was a dispute in a falling out between the lawyer who actually did the suppression hearing and the disc and that the senate suppression hearing lasted so that constitutes of course a waiver to appeal the facts in the case beyond what the the magistrate findings were so i attempted and discussed it with the client he wanted to go to trial and we were offered in fact a rule eleven reserve league on search and seizure after discussing the case with him some we elected to go to trial the hope fully developed further   bike to testify or not testify the defendant espoused a theory and said he wanted to testify that he was in fact not responsible for the statute because he factual scenario like we're talking about here the government's brief concentrates on the fact that he's a prior phone and they say your phone it's done it's over that's not rehab step we have said you have to know he possessed it and that he had the relevant status i think we have to remember that rehab actually was not a felony and zeshan case it was a case involving an immigrant and whether or not he was disqualified because of underlying facts it given and given that chip your client was essentially a proffer to the district court on what he wanted to testify to about as i understand that thought he had been perhaps pardoned how would you anticipate that playing out birth only conviction that they d had been set aside or overruled or whatever and there would be a jury instruction and the government would probably call in a probation officer or somebody who would say no we sat down with him after his ple he filled out a form as is typical when you go unsupervised release and that's is what you can do and can't do more than a very clear they're going to be able to prove in future cases that they told him you cannot possess a firearm now this is not unlike a situation d conceivably were a person received a presidential pardon or a gubernatorial pardon or even the one exception to using s i k e s cases in missouri typically there you've been part of doubt of that felon and that is an exception that stems from the a lot of police officers and military personnel were involved in domestic violence and suddenly they're if you can cast it would be able to say well he has seven felonies and this much time in prison and how could he not have the now and then you have this statement that is right after the incident saying basically this isn't great talk about all of these cases that came up st words and i'll get your answer just the nd most in this case were guilty pleas initially and they said no you know it's your substantial rights artifact if you play guilty  there have been a couple of cases since then involving injuries and we can talk about that later but the point is it's an element of the offense and it's an element of the offense that has to be proved and so i i don't see how when it's not   well a couple things what a hat judge made it very clear if you take the stand to testify to this i'm going to instruct the jury to disregard him had i got up and i know joe's case very well try to number of cases in front of and i got up and started arguing that to a jury under the existing law is it then existed i would be potentially in contempt of court and violating the court's rules and directive this is not unlike a tax protester case which i've been a number of those and where you tell your client put on a good faith defense for you and you can go in and make copeman believe and tell the truth you believed that at the time this was the law but no you're sorry you know it's not the law but you can't put that t case for anybody as taking this approach to their defense where they've gotten up and said i have a defense and they tried to put it on court and put him up because that wasn't the la time we admit it and the government makes much of the fact one we preserve are so vicious the evidence argument at the close of the case by the prosecution we did not renew it i admit that we did not renew it at the close of all the case with the government cites a footnote which says clearly that the law in the th circuit says now we don't have to so we don't have a situation of a harmless error test on sufficiency in my view because of th governor thank you and they please the court david wagner's united states i'd like to jump in where mr osgood left off and address the standard review for this case because i think it's been clarified by this court's recent decision in a case that i think the earliest cases from the circuit which comport with language from the supreme court would indicate that by not renewing a sufficient challenge after a defendant puts on his or her own evidence the  sufficient earlier step in earlier motion for judgment of acquittal raise at the close of the government weight at that point and i think that's what happened here however i don't know that the court needs to grapple with that issue in this case because i think the court can take a probe similar to what the court took in owen and find that even if the sufficiency challenge has been preserved the evidence is amply sufficient to show that mr if in fact someone like him had had his rights restored so i think it's i think it depends on what what the individual wanted to say and i would determine whether their testimony would actually even be admissible here i think what mr robinson was trying to say is that you thought felons in missouri could possess guns and yes just as you point out he did use the term his rights being restored but he was using that phrase in the more general to make the more general point that he thought all felons in missouri and it wasn't fact a little bit on that does that matter right now we're kind of exploring the boundaries of that and sort of let's say that what for purposes of this question mr robinson said i thought i was pardoned i really thought i had a pardon with the restoration of my firearm what would your response be in terms of how you would proceed with a trial like that i think i think i testimony was with respect to his particular convictions that he was pardoned then i do think that after a hiatus that evidence would be miscible it would be up to the jury to determine whether in fact assuming that belief was a station of course and  convictions and actually been part of the effort of the jury to make a finding as to whether he genuinely held that we and there may be a case i don't think this is the one with their vaizey a case where the defendant could present credible testimony that he thought the convictions were pardon that might that might make a man of knowledge felony status how do we deal with in this situation that and i understand that you feel that mr robinson didn't present that type of kind of tight representation of his beliefs but given that the state of the last time was that the district court fairly promptly shut him down and said that's not relevant and so there really was no reason to to propose a more thorough proffer or engage in that conversation before the how do we deal with that aspect of it in the sense that it wasn't even relevant that well i think i think there's this testimony about his belief about being able to possess a gun is not challenge that ruling that that was inadmissible i think that it wasn't but it wasn't at that time that i so you think that he had to in order to preserve this he had challenge that sufficiency of the evidence of the court will be looking to the evidence in the record out to the evidence that would have been in the record is this really a sufficiency challenge and the reason why i say that is when i was when i was talking to opposing counsel it really seems like i'm pla narratives i don't disagree with that and before owens that's all i that's all i thought about this case too but i think owens change things a little bit and did look at it as a sufficiency of the evidence challenge but i completely agree it's a little bit strings to talk about was the evidence sufficient a jury to find an element that the jury was never instructed to find right but either way you cut it i think whether it's plain error based on jury instructions or sufficiency of the evidence the course of the current i'd like to go back to judge kelly's question about what mr  he was allowed to have a gun in the desert does not impose a will on this requirement it's only knowledge in the only relevant knowledge is of the defendant's felony status so mr mr robinson believes that as a felon could have a gun and simply and i think today even even after a time in the different court would be correct in holding that that his testimony about his belief of being allowed to possess a gun is inadmissible i think it's just not relevant to his belief about whether he knew he thought my rights were restored i thought i thought that's how it worked i mean it could be that no jury would believe that but but it seems to me that it goes to her his knowledge as to whether he falls into the category of persons who is prohibited from possessing firearms sure but i think that the differences between him and one of the testify about that right there were sort of with respect to this particular conviction and i think that that that narrowing comes exactly from the language  has happened with the status of the defendant convictions that's not what mr robinson wanted to testify about he wanted to testify that everyone in missouri whether they were a felon or not could possess a gun that's really  and even after a high that the government doesn't need to show that he willfully violated that so you're saying that the proffer would have to be connected to one or more of his prior felony conviction rather than just sort of the general belief unconnected to those convictions following the language of the statute that's exactly right your honor and i see my time is up if the court has any further questions i'd be happy to answer them but otherwise i ask the court to aff that it's the closest thing i could find or factual situation here and the government is harking back once again to the fact you're a felon period it's in into the story and that's not what we have sit three have says status remember it was dealing with guns that's not what he claimed he claimed he believed his rights were restored under missouri law he's not talking about every other person in missouri he's talking about and stop and that's words that i think this court needs to reverse it and i know no one wants to turn a convicted felon with nine for our families loose on the street but by the same torque token if the law is on his side that's what it requires and we all just have to rid our teeth and turn this guy loose and i think that's