following his trial and then again failing to reason on his direct appeal it is our position that it is a well settled principle of the long that the procedural the fa your stiction and even by way of proving federal deposit insurance corporation on bank that was robbed in this case when you say in the bank that was rock i had a lot of trouble with your briefing on this  just to let you know my problem with your side of the case so you can address an argument when you continuously talk about the branch that was robbed or say when you say the bank that was robbed from your brief i kind of understand you to mean  branch in spokane but all that's necessary is that there be insurance proven that the bank that was wrong which is us bank of oregon it's not a particular branch as insurance goes i don't understand where the whole concept comes from of arguing that there's no showing that this particular crash is insured that seems to me like a and total are star it and i understand the court's position i have two responses to that number one i think even if you do believe in the theory which is performed by the government then it really is only the financial are two theories there is certainly the theory that maybe your honor is putting forth that there is a financial institution which includes branch used individual branches as in this case there was an individual branch in spokane which was branch or was it the time which is true and what's the evidence under either theory whether it's the overall holding company or the branch and we have sure that on the day of the robbery i think the government at all during the course of this trial and particularly during the course of mr beale's testimony that would allow our jury to come to a reasonable inference that at the time that this robbery occurred some fourteen months earlier the bank also had if the i c insurance the only argument that the government can make and it does make is that when we look at exhibit number fifty eight which actually has t you have a certificate dated june actually i think that certificate is d counter in the bank and if they have a certificate showing that the bank is insured a month before this event and then we have the guy testifying how many months after the event fourteen months following ar fourteen months is that's fine fourteen months later yes so we know it's this test of there's a certificate of evidence that's insured a month before the that testimony it's insured fourteen months after the event you no i don't think that's appropriate that the government has a bird to bird is beyond a reasonable doubt or has to look at whether or not the burden was met i don't know of any concept in law that would allow presumption that the government has proven by the fact that the testimony does not show the bank to be insured at the specific time of night and i don't think there's an appropriate inference either i the court tom writes to the united states five hundred sixty united states attorney from spokane washington to rest of you in the course of your argument leads to the following two things one clarify what a lot is as to whether a bank or branch gets insurance and second clarify on the facts what exhibit fifty eight shows as the date of insurance on the two certificates yes your honor the first with respect to the bank of the branch i think it's clear that the whole legal requirement is that the institution have the insurance certificate and the wording of that comes from several cases texas law because a yes exactly so i don't believe it's a clickable at all to the ninth circuit and specifically in washington with respect to the bank of branch it's clear that the deposits of the institution are insured by the f certificate dealing with the oregon branch and that's the date of june of june thirteenth of one nine hundred ninety six that relates to the oregon branch in portland oregon the attempted bank robbery on branch you're missing the point the point is not whether the point is when and at least as you have to establish it was insured on the date of the incident and have rejected the one nine hundred eighty five difficult in that case instead of present tense as a day of testimony doesn't account for what went on in the day of the robber that's what i'm trying to i do agree with your honor's factual recitation that i disagree with the legal conclusion i because although jurisdiction can be raised at any time i'm not sure a challenge to a jurisdiction in fact can be raised any time if it's not raised underact government's position on that the words you're going to have there was evidence of jurisdiction of insurance maybe it wasn't sufficient maybe it was sufficient but if that wasn't challenged on direct in that case and i read it over and over and over he kept it talks about jurisdictional subject matter jurisdiction is what the court means today in terms of not being able to waive that if this is not enough t that issue whether whether it's a failure approved ultimately as two out of the robbery under the federal statute is a different thing than what the unanimous supreme court said in united states versus cotton that today we mean only subject matter jurisdiction when we talk in terms of it cannot be waived and ok and so i mean that reading them if you're not subject honor if you are subject matter jurisdiction if we were i disagree with i just i disagree that it's subject matter jurisdiction i think it's merely just one of the many elements ok that's what i was so the point of distinction is is the subject matter jurisdiction or not if it i mean is any factor relating to jurisdiction always subject to reopening and later petition based on part and i don't believe it is i think subject matter jurisdiction the question whether the district court has to try this case the criminal case in federal court is subject matter of your fix and that's never waived but when we get down to the actual elements of the offense as we've seen in the united states supreme court case called neger where they where they held materiality was was one of the elements that it wasn't proven wasn't submitted to the jury they held that under a harmless error standard to have the threat standard what happens if long after a trial long after the period for  based on time in the defendants in condit are serving thirty year prison terms when they weren't even indicted charged or convicted of enough of a cocaine offense carrying that penalty i would say that never sure i don't know the answer to that question only on the sense that on the one hand we have cases like neither in the supreme court where materiality was never even proved  cases like in the ninth circuit month paul vote where the jury never found unanimously the three predicates d c e offenses and and of course the the courts aren't saying you're not run for direct appeal and collateral review the body pops up in australia i mean you come in and i really believe based on actual innocence and absolutely i agree with never richard actual  actually absolutely agree with respect to the body i don't believe the supreme court holds that the elements of the offense are all elements of the offense nest early or an absence of each element of the offense necessarily makes i only have a minute i gladly answer and questions that the court has or just make comments how do you address the issue with your best argument that jurisdictional fact is is not