or public reputation of the judicial proceeding created by the supreme court strictly with regard to her and her fiction the government would have to prove is not only his status as being a convicted felon but that mr owens was aware that what he was convicted of was a felony and carry with it a sentence of greater than a year well he had a home aside conviction significant period of time and so i'm sure the courts questions related to this fact is how could how could mr owens have not realized that he had not been convicted of a felony and that that felony conviction carried question going back to the sense of you know judge case at the sentencing hearing was taken aback by the fact that mr owens had only served twenty two years because i think it's important to keep in mind that his is ultimately know that goes to the current sentence but the question is how could he not know that he was convicted of a felony if he's convicted of murder and served twenty two years when he was misdemeanor murder are what's your theory well my i think that the record would suggest this is that when the district court was imposing sentence and reflecting upon the underlying state conviction and sentence the court was taken aback by the fact that conviction he would have been thinking this is a life sentence i'm never getting out of prison again for the question that the court had and i think the big question that mr owens would have is what was his understanding as to why he only served twenty two years of an eighty year sentence was it was there in his mind could there have been the possibility that he thought that he was there was somehow a change in the law in his mind could there be some misunderstanding that he had successfully appealed an issue or if there had been some potential post conviction relief that somehow a racist that underlying conviction was all the real answer to to get out on parole i believe i believe the real answer is that he was paroled and i think and i think that in wouldn't even had a parole receiving then where he was told you're out on parole i don't i don't know the answer to that what i what i do know is this is that the the sentencing judge as well as the a u s a and this is in the sentencing transcript they they went back and forth and you would say offered some of his understanding based on his experience of the state system as well as some of the changes in the sentencing laws and jury and speculated that well you know this is early as the early ninety's there was a change in missouri state law that said that you had to serve eight of the underlines how how does your argument square with the hollowing shut case from from last year and thank you for bringing that to my attention and the counsel for government provided notice of those subsequent cases knowledge that he was a broken person and in particular in holland shit there was the jail recorded oh where the defendant was having conversations and those conversations supported the fact that he diff on the government here and were and play an error of you and i think you have the burden of showing that the air was well you probably shone the air was plain just by rehabs existence but that it affected your client we look at what is going to be the universe of evidence in the record before the court on how the government would be able to present his knowledge is that i think it's what evidence would you have been able to present that he didn't know he was a felon i mean is there something is or something that that evidence that you just work didn't present at the st trial or presented the st trial that would go to that evidence would be circumstantial in nature saying here's the facts here's the conviction here's the time you spend in jail and you can and you can assume then that you know there's no reason not to i think just interjecting the about how about in relation to one year which is all that's required to get someone in prison for a felony and it's significantly more than that i think that i think the point the point that i'm trying to make is creates similar reasonable misunderstanding about his status similar to the defendant a and that's and that's what the argument would be with regards to the presentation that would be made to this jury with regard to that additional element that could create a different outcome of the trial and  the at least the court yes i have copious notes on all seven points but unless the court has questions on anything other than the i pronounce it rue heath because justice roberts in the oral arguments and i assumed he did a little research i may be a cold one but when i heard him announce the case he said ruhi for so that's the way i've been bouncing and i'm the only one but our confine my remarks to those issues unless the court evidence and in this case he's arguing in two separate places our instructions are bad and we didn't have sufficient evid obviously the instruction did not include that element the case law in this circuit and virtually every circuit i think every circuit was that you didn't have to prove that the fed had knowledge of his status therefore there was no need to put that in and as point out in our brief we basically were precluded from doing that by the old chief stipulation in the old chief case the government ended up getting reversed because the child judge allowed it even though there was in the supreme court an old chief says no the defendant can enter that stipulation you don't have any power to stop him and once he or she does that you are limited in your evidence so in this case we have little ch stipulation where he stipulated merely that he had previously been convicted of a felony punishable by more crime punishable by more than one year our hands were tied at that point we could not have presented any additional evidence unless it came in in some other way like rule for all for be evidence or maybe some admissions the defendant might have made that a i know i'm not supposed to have a weapon and we don't have that in this case but the reason of course we didn't have that is because a the the time was we did need to put it in and two if we'd wanted to go ahead and said well maybe relief is going to require this we couldn't have done that now earlier this week i sent a twenty eight j letter to the shed the defendant raised it in the issue in two ways he raised it as sufficiency and he raised it as an instructional air and the court without going into great detail just funneled it into an instructional error and said looking at the whole record there's no plane precludes us from presenting the evidence you now say we needed it well if the government had conceded that we have to prove knowledge would you have been precluded from proving it your position was we don't have to prove it right but if the law had been if the law had been different right the point is he's saying we didn't we didn't prove something that his stipulation prevented us from proving i mean that i don't understand how it prevented you from proving that because the supreme court at all chief says if we had gone ahead i'm not saying you would of because but if we could have we would have i mean they tried to do that obviously it helps our case to point out what  s the defendant was convicted of and how much time he served due from putting on more if there was no knowledge element well even if there wasn't i mean in the old chief they didn't put it on to you know change the government in put it on to prove dollies i mean they were right put it on because they wanted my point though you're saying he's waived the knowledge element i'm saying it's and i'm saying it's invited air yeah i'm saying that if you enter into a stipulation that we can't stop you from entering and that keeps us from putting on the evidence that you say we needed to put on i'm saying that i don't how you want to call it invited error or whatever it's going to say is there have been no circuit courts to decide that i did see that there had been two and i'm know this may not be likely persuasive to you but there were the nd part though is all right so we don't have evidence of knowledge because it wasn't considered a element of knowledge at the time and the question then becomes what do we limit we limited to the evidence that's presented when it's plain air or can we look outside the record the courts cases have and these are in the cases that are cited have cited that in terms of determining plane air you can look at the entire record so i mean there's no question no the jury would know this but there's no question that he had served twenty two years of an eighty year sentence and i think mr is missing the point here it's not how much time he served it how long the sentence was because it's sentenced to a term of more than a year he knew when he was in court he was sentenced to eighty years it doesn't matter how many years he actually served now he did serve twenty two years and he did know that he was paroled and i don't know of anyone in the history of this state and i probably maybe it happened who has been paroled without a parole hearing but be that as it may that the point here is that he knew he was in prison for more than a year he knew he had been sentenced for more than a year and that's all that the law requires that he that he know so again in terms of pla we are not limited and i think that's only fair we're not limited to the evidence that the jury heard because they keep saying the jury we couldn't presented that evidence absent some other reason for it so consequently says the sentence alone is enough to defeat a plain their argument he says hoeing said it's different because there was jail call any of these cases i have a look at those i think i think there are i won't don't in generally there are and i know there have there are cases out there where that's where that's all you know the defender was in court he heard the judge say ten years ago that's it you don't need any more and i i wish i could be more specific it is true that in hollingshead there were there were something else and in some of the cases there always is but i think evidence that you were satins to do more than one year is going to is going to suffice i don't think you need any more and i know you could speculate all day about inference but sufficiency of the evidence and and substantial rights analysis once you've identified an error two different things and so the question for us really is is the evidence overwhelming is the evidence really strong such that the failure to instruct the jury the failure to allow the proof would have affected the verdict at all and that seems to me to be a little higher question it is and the way you get there in a case like this is the rule that allows you to go mentioned if the davies case and the davies case is a case where they didn't reverse the insufficiency of the evidence because they found plain air and the reason was it was clear that it it was he was uncertain as to whether this was a felony any reasonable person in his situation might have some doubts because of the timing or i forget exactly what the facts were but there was nothing there that would have caused the individual to know necessarily that he was a prohibited person there do you think a late in the sentence here makes a difference i mean with the government can see it if if it's a year and a half then maybe there would be a question as to knowledge that the mere fact standing alone that somebody has served more than one year in prison may not get you there but that you know and we can talk about whether twenty one years is different but that there are going to be situations where you serve more than one year that might not be sufficient if that's all you have well i think there's your question judge i think evidence that the defendant knew mean court knew that he was sentenced to a term of more than one year is all you need i don't think you need any more than that i think the longer the sentence the stronger the argument is i mean like in this case when you hear eighty years and you hear eight felonies and you've done twenty two years it's a little hard to argue that you didn't know i mean you're left to come up with all these hypotheses that well maybe he forgot maybe he thought it had been set aside who knows what he was thinking again he had amnesia and he didn't remember but i don't think that gets him over the plain air hurdle i think that any time you have evidence that the defendant has been satins to more than a year i think that's all or requires  as i said i'm prepared to answer any questions on any of the other issues but i don't think there's any reason for me to try to use the remaining eight minutes of my time unless there are additional questions thank you sentence i certainly don't know of any it appears that the cases that have been decided by the th circuit so far have always required the lengthy sentence the sentence over a year plus something else whether it be the telephone calls or for instance in green there was an admission during the sentencing hearing where the defendant said that he had while serving his sentence that disqualified him from possessing a firearm that i believe there is maybe some out of circuit cases that have dealt with circumstances where the underlying offense of this quality fans looted a previous felony and that firearm and certainly the nature of  the extent of the government's evidence would be simply the underlying visions of well as the sentence and the arguments that have been presented here on behalf of mr owens are simply that based on based on the fact that he served such a small portion of that overall sentence would create some reasonable argument with jury that would call into question his knowledge and understanding of the status of that of