here this this court in the next panel judge randall recently put it joan she said affirming the conviction when the government has failed to prove each sensual element of the crime beyond a reasonable doubt arm must know that in their past they had a conviction for which the sentence may have appreciated over a year all right so that sounds like if mr barr had actually spent three hundred and sixty six days in jail for one of his prior convictions you would you would lose this argument but as i understand it you're saying you should win because he spent i think two hundred and sixty seven days in jail so he didn't spend a full year in jail and there's nothing else in the record indicate that he knew at the time of this crime that his prior offense for which he spent two hundred and sixty seven years in jail was fact he is precisely the example the supreme court was considering the person that they were thinking on in their analysis on page eight of the supreme court's decision they say these provisions might apply to a person who was convicted of  sentence at least four years but that was after he was charged here after the case so that great guy doesn't care about exactly  that stipulation was the day we walked into court after having consulted with counsel and very knowing that at the time we walked into poor in his past he would he was convicted of this offense the question indicate he knew at the time he committed this crime he was convicted of a felony or that at the time he stepped into court he knew he was convicted of that crime this stipulation in the kitchen at the time he stepped into court he knew he was a convicted felon so it should snow white on what he knew at the time he committed it was not your honor it is not an honor and that's a necessary necessary element that the government has to prove and it cannot be inferred any other way is it enough to show up for the government to show that the actor knew he was quote a felon or z actor need to know what are we going to do with cases where the actor  he was a felon b doesn't know that the federal definition of felony is a crime punishable by a year and a day or more exactly so that's part of the issuing honor where attorneys we know what felonies are kind we were able to explain it to them that's the government's burden they have guy spent seven hundred days in jail doesn't mean you knew so well and well we're going to hear those arguments what i said before where is it a construct of knowledge issue that ignorance of the law is no excuse and if someone spends seven hundred years days in jail if so facto they knew they were prohibited person because seven hundred days is more than three hundred and sixty five days i think that that that generally the case in federal court stipulate we know right that the client should have known at that point that the government that's the government's burden they'll be able to prove i believe at trial that this defendant knew in here here's the information the likelihood that a person is that a person that goes to prison well over a year knows that they're found well that's what i'm getting at you say likelihood am i'm trying to and maybe i shouldn't be looking so broadly at these category cases but let's face it i think we're all going to be busy with cases here in the few years so i'm asking for your your able assistance is through is it likelihood or is it is it in him do beautiful fact that the defendant is charged with constructive knowledge that he was a pretty person if he previously spent more than three hundred and sixty five dollars days in jail so that that's the government's position that they had this construct that they're not i'm asking your pick what your position in those cases i know that doesn't hurt your client's case but what's your position in those honor my position in that case is that i don't think that that is not i don't i think i think that's possible i think that parents are standing and think that they're the governor will be able to prove that and i don't see any defendant standing back and saying i didn't know i was money spent seven hundred days of prison that is unbelievable but that is a determination that a jury can make do they believe that that person didn't know that they were found after they spent so much time in prison i think it is that and so that really interesting point and i'm wondering if that is a jury question is that a factual question or is it a legal question because the you know the normal stipulation that i was accustomed to seeing in the trial court was seemed to of a stipulation of law or maybe it's a mix question of fact a lot because the law part of it is felony the definition of a felony and the fact question i suppose is what what the person not concerned i mean the cases come you know and we deal with them a more can cern about trying to ascertain what what exactly needs to be proved in a haze case and what level of knowledge must the defendant have been in the well let's get back to this case i i shouldn't you be so many hypotheticals but in this case i suppose the issue is if so did he know about it did he know it was a felony because just because he spent less than a year in jail doesn't mean it wasn't a felony in fact there are many felonies where people in fact get suspended sentences or spend less than a year in jail correct correct you know the issue here is that cully only ever heard probation that's all you heard probation probation probation and i mean generally you know my clients don't really care what the title if they want to know how much time they're getting so knew at the time if you knew in two thousand and fourteen bit he had a prior felony felony conviction then that stimulation will suffice that we could that would be an easy case right if he knew back really what we have is we have a case where we're talking about a gap period we know that he knew later on we know that he was convicted earlier on and the question of another fence and then the question questions of how much can be inferred about that st offense and his later knowledge it seems that some degree of inference is permitted but the question is how much do you think that that's it's a question degrees opposed to a question a question of c it's a spin on time it's a timing issue as to making that determination i do understand the court the court's specific question is the from the prior conviction was before the  heard ever was probation or did he know that probation really meant the fowle and there's nothing but there me and i'm going back to this place and when he stipulates that he was convicted of felony prior to the to this offense  that specific date that time that's the moment you heard the firearm you knew you were someone that's not known it's not a list that it from the client and i hafe it clear this is exactly the the supreme court said it has to be known we wan make sure that we're to buying mistakes from criminal intentions and who's to say that someone that always gets probation doesn't know that they're felon and raises exactly what the supreme court was talking about what if the person only ever got probation never got a sentence exceeding the year how do they know the his case and if we add to this to be later than his testimony that he knew he was on probation for drug dealing i think the average person in this country knows that drug dealing is a felony offense is punishable by more than one year as opposed to possession simple possession so we know he has a stipulation all drug dealing in all states is if it's a felony everywhere i haven't done research but i think that that's an actor's name and may not i mean jail actually i sued the government's position in those cases we were we care what the man says he knew ignorance was no excuse he's charged with constructive knowledge that he was a felon because he actually spent more than a year and day in jail is that the government's vision  felon right right but here we are we can't be we i mean he was a felon right right twenty's are but we're we're not sure that he knew he was a felon and the jury correct no one knew at the time of this trial that the knowledge element would extend to the knowledge of status as i said and again i mean i don't want to keep beating this drum but there is more than just a stipulation right you have stipulated you have him testifying and knowledge ing that he was on probation for drug dealing and then he's asked on his direct examination was that point a felony mentioned in the stipulation and he says yes but again that goes to judge fitz has prior question that goes to his knowledge time of trial i don't see anything in this record that tells us what his knowledge was regarding his status as a pretty good possessor of the firearm in two thousand and fourteen there's there's nothing there right except i mean this is kind of factual because if we had known i don't think i think mr barr would is that the way to the knowledge element he would have wanted this before the jury but let's put it to not kind of factual world i think there is a very  inference from his testimony when he answered that question or was that for the felony mention that is the question that yes he's saying he knew that at the time that he was on probation for a felony conviction for drug dealing so you have to look at this deprivation and his testimony on his case and i think you have ample evidence knowledge and then the really come down to what is the burden of concrete and even if you threw out that with the fairness isn't is a blank slate for us is it not well other than the evidence that i pointed out to already but remember we knowledge circumstantially right we really have direct evidence of someone state just make the case to make the punch make a punch list of what you've got it says that he had knowledge at that time and maybe if you can't get all the way there then you have to lean into error pretty heavily but but walk through the case and i can start it off for you i think he he had a prior conviction whether he knew that that was a felony or not i guess that other than the baton to you now i can  can start one i think that's not i mean everyone can start at one but but run with it what's your strongest case that he had knowledge he satisfies the knowledge element at the time of his possession but we have the situation we have it's tough to fill it after the ran from the police because he knew he was on probation drug dealing and so so so you need the inference from that meaning of it when he run ran from police it was because he understood was a felony offense at that time he wouldn't run for employees just for being having some other probationary offense but for a felony probationers and so you have to prove that to be probative you have to show that it was his knowledge it was a felony for in new jersey and federally that you can't be a pro in possession of a firearm and that's why he was so pretty you want to get rid of it and he gave the always right so that's the last part when he was arrested  conviction everyone that gives an alias we can make the inference that they have knowledge that they had a prior felony conviction pretty strong well you know if he wanted to for the violated his probation and so let me take this one step further if i may  i'm sorry it's not an argument i are technically made in the briefing but i never review should look at the entire record not just the child recognize specially not a record that circumscribe because of the  could be cross examine the defendant with his bar conviction there were two left and right both their degree of action both for drug dealing two hundred and seventy seven days we never argued in our supplemental letter that he had four years after the fact and that's why you shouldn't for knowledge that's in the record but we haven't argued that comes afterwards you couldn't sing a thing about his knowledge beforehand but the fact that he is to new jersey conviction for rd degree offenses and i can promise you  less crime punishable by death rate so i might try a question a street wise person might know i'm not supposed to have a gun they might not know i'm a felon but they probably know i should have this gun he's right and take to answer both question you're correct the term felony  to the actual knowledge not being in france in the supreme court decision the court says the inquiry starts from the longstanding presumption that the congress intends to require a defendant possess was a fellow and since he was standing there in front of the court when the court told him what his crimes were published by them he's tried with knowledge that he's a pretty good person well i get these i think of that all the time with my current clients now if i know that the government can at least elements of this offense how do we my client to move on from here how do we determine whether we go to trial and i think that that saying you know what if we go back and if we look now at what may happen what's going to happen if we look now at what's actually going to happen in that court that justifies now not getting the relief that the supreme court says we have to get substantial amount of time that he has been in custody the supreme court said we're looking at the knowledge of the parts of the defendant at the time because it's pretty serious this isn't something this is something not serious so my question went to though not how we get here but looking at the similarity of results if it sounds like the result is going to be very similar through a new trial i mean particular case yes or no but just walk through how it's if the result would be the same and maybe it won't be but if it would be the same new trial based on maybe old chief stipulations it might be broader this go around as to knowledge at the time to prevent the jury from hearing all the details of prior convictions how would this assume that you run the st three elements play in their review these results ensure the people of this country that this is a fair system that justice still prevails that it's not that it's not blind to the mandate you know the supreme court do you have faith in the system of justice that will uphold this lovely dark lives if it's a waste of time thereafter you're supposed to do that supreme court says you're supposed to do or you're not stipulating it would it's a waste of time bryan that's we're talking about that hypothetically we're not stipulating that it's a waste of time absolutely it's simply to