this case the th circuit are firm mr greer is conviction by relying on information that has never been entered used at his trial there are three fundamental problems with this approach st prong three of error review the inquiry is whether the errors affected the outcome of the trial meaning that verdict of guilt leaking information that was never before the fact finder at trial is not relevant to that notice that anything being introduced may be used by the fact finder to determine his guilt but outside the record of the trial and formation may go on tested and not be reliable for determining guilt that is particularly the case here where because of the uniform circuit precedent before race at no proceeding in the district court had the parties addressed or the judge found the mens rea required by this court and rafe the depends on what the needs are of the error is and that instance that the senate would be that they claim error would be the exclusion of evidence and that so therefore the appellate court does look at that in terms of revealing the nature of that it is the claim is what it is here this is an insufficiency of the evidence claim then that evidence of that information the defendant is offering would not be considered so are all on an end to fish and to claim is that is situations where we obviously do allow consideration of evidence outside the record in assessing a claim of trial error i don't know why this would be treated differently it will depend  are our requests is that what the court looks at or are reading a vote fifty two dollars which is informed by this court's precedents is whether the errors which is still what the court is looking at when the court is reviewing a case is reviewing the errors that are ready occurred and a trial when they claim to error is the sufficiency of the evidence that the process itself says i should just address whether the outcome of the proceedings which is a stipulation he did so in accordance with those then by any process he had no one tent to have entered into that stipulation other than in conformance with the law and at this point on appeal it would be unfair for the government to be able to point to the evidence of says it kind of introduce without doing so and having it to furnish and then subjected to a defense at a hearing where last in this case was no fact finder in the district respect to the scope it will just depend on a case by case as the government established the defendant's guilt at his trial and it's really just a function of the fact that the owner of the uniform president has now been overturned by race because of that precedent had turned substantial rights were they affected i'm on the appeals court you have to give me some reason to think they were ok what were the now you say you only look at the  only look at the p s a he's in the record why what's the rule i mean what wild wild are there could have been something that happened before the trial and error there could be something out in the middle of the trial to which it's highly relevant what happened before the trial there could be something on the list of witnesses there could be a limitation on what's going to be at us in the limitation having been worked out by counsellor having worked out with the judge before the jury was i i mean the possibilities are endless so where does this idea come from you can only look to certain things at least sure we don't have to go beyond setting the record the record with which the p s a is par b you could go to sentencing two minutes after the jury comes in with a guilty verdict same day within the hour i mean you know it all depends so so what's wrong with what i'm saying that there is no rule the only rule is the defendant asked to show that there's a reasonable likelihood that it did affect my substantial rights and no no appeals court is going to have a evidence introduced at the trial that we have as defendant has the burden of persuasion and may meet that burden by showing that the evidence and his trial did not establish it built and because it and probably both dogs three and prompt for the outcome of their proceedings is that jury's verdict of guilt that is what is being reviewed that p s r in particular was not prepared and is not prepared by rule and till after the trial to that information is not even within the scope of the trial record on a sufficiency climb your honor and so i ask what's the trial record you said because you could have added and so what it is i overstated with an hour but maybe sometimes an hour i don't know right the jury's verdict this coming when the state has to do with witness missed witness ms has already testified don't look to the next witness  sufficiency of the evidence a trial is based on the evidence the trial and the p s r by rule is not even prepared until after the defendant's guilt and cannot be released without his consent before his guilt and so possession of a firearm by a convicted felon could an appellate court look at that and determining whether it's substantial rights or effect or no your honor and the reason is because of the record even added to that prior conviction as does not address the requisite state of mind at the time of the offense the defendant must know his status at the time of the firearm possession and without a hearing on that in the district court the record is just does not address that a defendant was convicted of homicide served twenty years and three days after being released from prison was arrested for possession of a firearm by a convicted felon trial because otherwise what will happen is an appellate court will be making a determination of guilt or likely guilt for the st time on appeal and that process may end up with different results depending on which court is looking at it  felons from voting or suppose the defendant had written a book about his presume experience but in the books describing the pain years he spent in prison he says i was convicted of this found me because  court look at any of those you know your honor as i understand it that it looks like that that defendant may know his status but the question still for the fairness integrity reputation of the proceedings which is an outcome of that the outcome of the proceedings is a go verdict is that the nature of the error should be reviewed based on what happened at the defendant's trial and all of the examples that i gave what do you think the effect on the integrity and public reputation of the legal system would and not as a potential for an initial fact finder of a defendant's guilt or likely guilt and that's particularly true because although these are examples where it may seem like the defendant's guilt and establish the rule being applied here as being a fight to everyone aside i have two questions that i hope you'll get to in my time the st is i don't know that the focus soprano three and cronk four on the same problem three i think but clearly is related to the proceeding at issue would he have been found guilty but pronk four is talking more broadly about the public perception of the judicial system as qua system and so i don't know that the answer to your question is the same with respect to pronk three and prong four i understand your argument that whether this proceeding would have been different yes under pronk three and so that you may have shown prejudice but with respect to prong for i think that what the public  looking at quad and challenge as well is the entire proceeding and there i don't see why a judge can't look at the facts of the particular case from beginning to end discern whether the public would have seen this is an injustice and given all of the circumstances oh potential circumstances some of which are just like this case the justice alito mentioned your defendant was just released from prison six months before he was arrested for this charge and he had served either twenty months or thirty six months it's impossible to believe that there isn't any reasonable doubt that he could have put his knowledge into intention able to affirm based on the overwhelming evidence on the element before the firefighter at trial and two and as a leader he is a market for example the court addressed the fact that that was such an instance where their verdict had not undermined the fairness integrity reputation proceedings and i would because the evidence at the trial that is assuming we're we're we're looking just at that proceeding to understand it as an outcome of the trial but the conviction is the issue i do have a question in response in your response suggests this the chief justice ok court could look at that but i take i go a step further assuming that because nobody thought knowledge was at issue that evidence had never made it into the record i'm not sure that you only if it wasn't their own and you can and the court continue to do szell notice of undisputed facts but if there's something that's not in the record at all none talking just a trial record but not there at all but it's something you didn't put in because you didn't know it would be at issue do you know of any way for you to get it before the appellate court no your honor and that is precisely the problem here is on appeal we cannot only a couple of things that you said today is very heavy and raised a question in my mind which is are you arguing that plane air review is limited to the trial record in all instructional era cases or are you arguing that that's true only in cases where there's been an intervening change in law of the kind we didn't read if you know our question presented is specific to intervening cases but it just  accordance with the court's precedents ordinarily the court will review the errors that occurred at the trial so even and even without intervening case the relevant record would be the trial so you don't think that there is any basis for distinguishing between the two and this really is a broader argument about all errors it is your honor but i do acknowledge that our question present is focused on the intervening case ok what i'm on i'm more interested in is if it is that broad question i mean how to square that with the entire idea of the plain their own doctrine because you know plain error is meant to encourage timely objections if the court time to correct it build a factual record so one so forth but on your ruling on the broad rule the defendant can get a fair record if he just stays silent and you know usually a bare record will mean in reversal so wouldn't that approach give the defendant and incentive not to ingest and of course that won't be true in cases where there's an intervening change in and where there is not isn't isn't a left in a better place than if he didn't just in aren't we creating the wrong and sentence your honor i think respectfully i would it because the government does have the appellate court to look at what happened at the trial or at least not risking what going beyond what the court has sanctioned before by having an appellate court in the st instance would get information and evidence that was just a little bit better and the government argues that it proves too much because courts of appeals when conducting a prejudice analysis of trial within the trial court record would on your account function well what do you say honor at what happened here goes well beyond what happened in the year for example and leader there there was a fact finder on all of the elements of the offense well i'm really not so concerned about meter as the principle that we often conduct as appellate judges a prejudice analysis of trial court errors and we don't think of that is asserting the th amendment function of jury because we're dealing with a forfeited there and it's the for whether it's in the trial record of the trial record us as public judges to conduct a prejudice analysis without infringing the jury's functions it is a forfeiture that even a plane air review once  stop there but why wouldn't the same concerns apply when we're looking at matters within the trial record when we're assessing a forfeited argument and then we're asking at all as we always do with just even within the trial record whether that would have made a difference to a jury yes you are looking at a trial record when we're looking at the evidence before the fact finder we then the court is at least conducting a review of the fact finder and not then risking stepping into the role of a jury or serving as a secondary it is i would have thought i would have thought a defendant might have argued that that is in the past i'm a logical in possibility and we don't know what the jury would have done and old chief stipulation i think you are human house to be as a matter of siri than your client might have been a client acquitted if proper instructions had been given because he did not know that other pre race the fund and entered into that stipulation based on the new of our president at the time and we're not you know acting with any bad intent as as to how the government would have proven its case without the error but in fact does what i would point to is without the error and appellate court can't just look at what the government says it could have produced without that information actually being produced a fact finder and subjected to the adversarial testing by the defendant because questions about you know what if a defendant had written a book about his experience as a felon and on and on in your view do steps three and four do anything distinct because and the government's pointed out and i think many of the questions you've gotten show that step three maybe has a jury focus but step four doesn't have anything to do with what the jury would think it has to do more with what the public would think do you see them as having any kind of different function or essentially under your analysis we just stop it step three because if it would have led to a different result then there's no need really to do anything different steps for your ira to respond just so that you know the problems three and four automatically collapse but it is true that given the nature of the error when the nature of the error is the insufficient evidence of the defendant's skill at his trial some courts including some of the court the scores earliest cases and and even a problem for the outcome of the proceedings is the jury's verdict and is it fair and for the integrity reputation of the proceedings for an appellate court to affirm a defendant's conviction even if the evidence at his trial is not sufficient and that could be the result if this court adopts the a healthy appellate process which allows the court to look at things that were never introduced to cancer let me just make sure miss wacko that i understand your argument possibility that the that the guideline era case their court stated that ordinarily such an error would need strong three and four the court could certainly say that here we're simply asking the court to to focus the  e courts and limit their review to the evidence actually introduced against the defendant at his trial thank you you know former president lead to errors mr brewer's trial and appellate court should assess these errors by reviewing the trial that actually occurred this line a review of the trial promotes the fairness integrity and reputation of the judicial proceedings for three reason it maintains the appellate court's role as a reviewer of errors rather than as an initial fact finder of a defendant's guilt or likely guilt nd best maintain review of whether the government has proven to defendant's guilt through sufficient evidence at his trial and rd it provides a clear line to the appellate court that avoids future litigation over what information not introduced a standard in order to obtain discretionary relief on his forfeited claims the only question in history here is whether the court of appeals was required to completely ignore some of the evidence in the record in determining whether petitioner has made those necessary showing this court is never constrained plainer or view in that way and it should not start here clara doctrine is intensely practical asking about substantive outcomes and fundamental fairness the court has always analyze those questions in light of all the evidence available to it indeed the court even lo instrument outside the record meter for example the court emphasise that on appeal the defendant hadn't pointed to any new evidence he might introduce if they got a new trial and with all this morales the court look to a compilation of psychology research and answering how they're at issue there would affect public perceptions of the proceedings petitioner has identified no principled reason why a court can consider those sources but must ignore the undisputed evidence in the record about his own convictions and prison time petitioners wrote off to be contrary to this court's admonition leave should be rare and reserved for genuine injustices under the approach adopted by the bass majority of circuit court can consider all the relevant evidence engram case by case relief whatever the error of might realistically matter petitioners will by contrast fire nearly automatic reversal for many to end white petitioner unself who do not and cannot possibly claim that they would have disputed their knowledge of status as an error free trial but seek windfall relief based on an artificially constrained view of the evidence the court should not particular circumstances are you in the court can always look and look outside the trial record and consider other evidence in the room and the records that are relevant to the air identified so that's in to depend on the nature of what they're looking at in other words let's say that what they want and then review in court months to consider evidence of a discussion between me and two other prisoners or whatever in which you know the discussion admissible nature of the evidence not in the sense that the specific evidence in the format that the appellate court would be looking at needs necessarily to be admissible but the question that the court on appeal is trying to answer is whether the result at trial would have been different but for the error and whether it would be fundamentally unfair to hold the defendant to his forfeiture and so if it's clear to the appellate court from the evidence before it  that an error free trial would have included that sort of evidence or that a new trial on remand would include that sort of evidence such that there's no reasonable probability that correcting the error would have any real world affect other than requiring a new particular morning would want to point to times of evidence in your honor i think that that is a function of the standard that the court is applying the standard is whether it would whether the defendant has shown a reasonable probability of a different outcome and an error free trial and i know in assessing that yes the court might need to assess how the how counsel would have proceeded but i don't think that that speaks to the scope of the evidence that the court can consider there or suggest that the court should out as an instance where an appellate court is being asked to defy to find petitioner guilty on one of the elements of the offense and respectfully that's that's really not what's at issue here there is no dispute that a defendant can waive a constitutional right by failing to assert it in a timely fashion and there is no dispute that petitioner did so here he failed to raise these objections at trial and so the only question is whether an appellate court is going to relieve him from that forfeiture and there is no reason that an appellate court in performing that fundamentally judicial function can't look to evidence in the record that's relevant to it doing so doesn't in any way usurp the function of the jury so you think that meter for example i think all of the justices recognize that in and in a case of on preserved error it would be appropriate to genaro leave based on these sorts of considerations i think that even in a case of preserves error meter teaches that the relevant question is whether if you had had an error free trial the result would have been the same and so we would argue that under that view you can look at the evidence that would have come do we have to address whole chief to an order for you to win no i don't think so your honor i mean petition has not identified a single case in which the court has ever refused to consider evidence in performing harmless error or plain error review because that on evidence wasn't in the trial record and so we think it's enough for you to say here that you could look to that end of it came in at sentencing and assessing whether the area here should be corrected on plane or appeal and you don't need you but you're going to see it here so there is an error ok at the trial it seems like it's absolutely harmless it had to do with what the weather was like on a certain day was it raining and it was walking out in the middle of it and would have no you know i mean ok well actually there is a defense you know and it has to do with that the defense is it's was the defendant had some extra evidence that they didn't put it in because of the error they would tell the appeals court that and he describe they didn't find out about it until late in the appealing file it makes for a brief am i right about that yes you're right about that your honor ok if i'm right about that then i get the more difficult question for me surely there is some limit about what the court of appeals could look how would you describe it i mean i have a pretty good intuitive idea i think you don't want to be unfair you don't want to go can figure out how to do it and this is the advantage the other side has here i can't figure out how to limbaugh when it goes too far in a form of words so two things thought i'm sorry i missed the last part of what you said had you thought of some words as to when it goes through far you think confining it to a quote trial record i don't know what the trial record is exactly you want to go beyond that of course you can go beyond that you say when does it go too far if you were me what words would you write in the opinion described when it goes too far and when it does well what i would start with is a rule of appellate procedure ten which says that the record on appeal includes all of the papers and exhibits as well as the transcripts of the proceedings in the district court and so if you're looking for a textual talk that that i report what about i mean you know things that seem absolutely obvious what about a site you know so and so i'm not certain i want to say maybe we don't answer it and we just say record as you say but but i just wondered if you thought about that if you have a form of words we haven't thought of a specific formulation because as you say it's not presented here the government has agreed in some cases to supplementation of the record when defendants there's a case where the defendant would have a plausible claim maybe a more than plausible claim that he or she did not recall a felony conviction let's say it's it occurred twenty years ago the the offense was not labeled a felony under state law but it qualifies under the found in possession statute defendant was sentenced to probation so there the record outside of the record in that circumstance i think the more the government tried to rely on something like that that is truly outside the record and that really puts at issue credibility of about affidavit i think it's more likely in those circumstances that the defendant is going to be able to make the substantive showing that the plane air standard requires i'm going to be able to show that there is a reasonable probability that the jury would have agreed with him and disagreed with the government on a piece of evidence but in a case like this one where the petitioner has not offered any reason at all to doubt that he had five prior convictions and had served six years in prison and indeed has never claimed that he was unaware of his felon status then in that circumstance court of appeals looking to all of the evidence available to it can properly determine that he hasn't shown that his substantive right to affect well i understand this is a different case but back to my my hypothetical case would it be improper for the appeals court to consider the affidavit and if so this is similar to a question i say just as pryor was trying to get an answer to what is the standard that should be applied in th situation is just a question of basic fairness or liability and i think that's right your honor is that i mean i don't want to rule out the possibility there and beyond this case but i think the ultimate question there would be the question that the court asks that prong for the planer analysis which is one of the fundamental fairness i think you just astronomy or so you were about to make a to say something a concession of some sort when you were being questioned i believe by one of my colleagues there does seem to be an unfairness to a defendant in this situation who doesn't know knowledge  at is at issue and who may not have created a record about knowledge but he has all sorts of evidence to show mental illness all of the factors that justice alito set forth mental illness or he was young the judge told him and didn't tell him it was a felony his lawyer didn't under state law it wasn't classified as a sphero any but none of that is in the record you seem to concede he could put that into the appellate record i just don't see what rule gives him an opportunity to do that number one number two if there's no explicit rule are you willing to concede that we should say there is that assumption and then number three going back to justice briar's question is it and isn't an equal or an equal opportunity do you have a chance to put forth countervailing evidence and at what the appellate court become a trier of fact rather than a reviewer of legal error because if you're going to let the government put in all its counter evidence that's not in the record don't we become trier agreement here has to be a legal compulsion to do it so how do we write real time speaks to evidence that was omitted by error and so you could conceive of supplementation of the record in this case as allowing the introduction of evidence that wasn't put in because of the error reflected in reality fight i wouldn't want to fully commit to that and so for that reason i on the nd question you ask yes the government would comfortable with you saying that courts of appeals can consider that evidence and indeed we think need or already does that at page fifteen of the opinion and neither the court went out of its way to note that the defendant there had not pointed to any evidence that he would introduce at a new trial so we think that's already baked into the court's precedents and we're not seeking to sort of move back from that and in terms of whether the government should put in additional evidence  that as i said to justice alito i think that bad start you're going to run into problems with the substance of the plane or a standard the further their government goes outside of the record and so most of these cases that have come up have not involved instances in which the government has looked outside of the record i know there is at least one case that i believe is pending with this court in which there was in which the court of appeals to judicial notice of a state conviction which might present different with your answers to justice to lead us question means he posited the government coming in with entirely outside of the record evidence a new witness of some kind and of course in this case it's about  peripheral issue but that won't always be the case in instructional error cases you know it might the instructional error might go to the very heart of the case you know might go to something like the defendant's  intent and and then as i understood would you were saying to justice alito he was saying no the government could bring in all kinds of new witnesses as to that issue on which there was an instructional error and that defendant would have a better product for a claim on the merits and maybe more importantly i don't understand really why that's the question as to how the test would come out in the end as opposed to trying to put some limits on what the government can do in a case like this well you are a part of the difficulty here is that this just isn't a problem that has come up the government has not been attempting to put it and that sort of  very peripheral evidence in plain error cases where we think it's enough to decide this case to say that where the evidence is already and the trial record basically r t and the record in a district court but a court can certainly consider that and we're comfortable with a rule saying that a defendant can point to additional evidence if i just understood you correctly mr steiner you basically said that what you just said what you said previously to justice so that you could be fine with that  not being a part of our holding that you know basically that this case involves only record evidence and would be different from a case that where the evidence was outside the record is that right yes that is correct and if i could make one more i think related point there's been a to go into this discussion a sort of focused on the notion that petitioner didn't have any basis for disputing knowledge of status in the this case would we have to say that when a court conducts a fifty to a analysis almost their analysis it's likewise not constricted to the trial court record and can look at other things in the in the district court record three who were decided there we necessarily have to resolve even there the fifty to eighty schumer's are a way to distinguish the two cases i don't see any basis for distinguishing the record to bet the court would look to at prong three from the record that the court would look to and i'm with their analysis of course the standards and the burden are different and so that might lead to different results but i think the record would be the same for both purposes do you think you think we would have a greater s deciding whether a piece of evidence was harmless in its presentation or absence if it's not even for the jury at all i mean you know typically we say it was harmless error that this this wasn't presented or this was presented given the overwhelming weight of evidence the jury had before it would be very different it might be different i don't know if it's outside the trial court record altogether so there i think this is part of what animated the your court addressed the defendant's argument there that it would be impermissible to affirm based on quote overwhelming record evidence of guilt the jury did not actually consider it which is very similar to the argument here in the court rejected that and so you think they do wa honor if a defendant had a could could make a showing that it was reasonably probable reasonably probable that properly instructed jury would  have concluded that he didn't know of his status the old chief detail later on by itself wouldn't preclude him from obtaining relief now and that evidence just playing that out how in a case where there was an old chief entry limitations that sounded pretty categorical may so i'm sorry forgive me if i'm if i'm misinterpreting your question i'm trying to sort of seeing two different questions one is what evidence can the court of appeals consider and the  is what conclusion does the court of appeal have to draw from that we think the old chief stipulation is relevant although we don't think it's necessary to the question of why have it ends the court of appeals can consider petitioner is essentially asking the court of appeals to give him the benefit of the new law notwithstanding his forfeiture while at the same time giving him the benefit of the old law as sort of put into effect by the old chief deputation and we think that that is fundamentally unfair but once you get past that step and the court is looking to all of the evidence available we don't think the mere fact of the old chief stimulation would mean that a defendant could never show that he was eligible for a player really thank you so the seven circuit and considering this question true a line between you know trial record evidence or all the evidence in the record evidence as as a way as a proxy for what's reliable so things like the piecing p s r for example than that especially in these cases we're not asking for more than that your honor we think that a rule adopting that line would be sufficient to decide this case there may be other cases in which you're out of things that aren't at issue here so i mentioned the possibility  briefed and really are necessary to the decision so you would be happy with a decision that's you know the court of appeals can go outside of just what the jury saw what was before the jury and considered other record evidence like for example the p s r and just not say anything about whether it's possible except for in another case in a not really a fair case for the court of appeals to go beyond that yes we'd be happy with the decision whatever and just to go back to questions do you agree and that circumstance if the government could point to the p s r that the defendant could cast doubt on the reliability of that evidence with things that may go outside of the record like for example you know mental capacity or other reasons why the defendant may not have known about it or maybe inaccuracy isn't the p s r yes we're fine with it and that's a lot of thank you thank you right i don't like two things and closing the st is a partition israel is unnecessary for any defendant who has a plausible argument about why a knowledge of status instruction might actually have mattered at his trial our rules allow courts to about evaluate all of the available evidence and grant case specific relief whenever it would be genuinely unfair to hold the defendant to his forfeiture partitioner is rule by contrast would grant a windfall the defendants like petition him self who cannot reasonably claim to have been unaware of their filing status and the  related point is the petition has really provided no reason at all for acquiring courts to ignore evidence in the record at the final step of planning or review petitions asking the court to grant him discretionary relief from his forfeiture he bears the burden of showing that it would be fundamentally unfair not to do so if he had a plausible argument about why the sentencing evidence was unreliable or didn't tell the whole story he'd be free to make that argument but he has no right to insist but courts just pretend like the evidence doesn't exist and deciding whether to give him the discretionary relief he wants off the court or affirm rebuttal much more or no thank you your honor if i could make three point the scope of the appellate court's review undertaken here well well beyond what happened in meter and johnson johnson of course being a problem for case and that is and johnson materiality was a known element of the offense that the parties had an opportunity to address before the fact finder in the district court record there which was then not affected by uniform precedent that's in contrast of what's happened here uniformed president has affected the record of the entirety of the district court proceedings because of that uniform precedent the defendant's knowledge of status his mental state required to be guilty of this offen was never addressed in the district court proceedings including at sentencing the nd point then i'd like to turn to is from this court case and alonzo and a lot of the court recognize that plain error relief is not limited to those for him the appellate court presumes or find maybe in a sense it's not a guilt or innocence determination on playing error it is instead about the fairness integrity and reputation of the proceedings and in this instance mr mr greer and this relates to the rd point we're talking here about where an intervening decision has fundamentally changed was what's required to be guilty of the offense and the appellate process undertaken here is not insure the defendant has actually his guilt has been established by the government at his trial it does not answer that question and for therefore is it unfair for an appellate court to look outside of what was introduced against the d trial to make some hellish determination in the st instance about whether the defendant may or may not like lee be guilty and what it will end up doing is embroiling in the court and many trials going to  and many trials going forward about whether a defendant may be guilty thank you thank you counsel of the case who submitted