the information that the government filed remembering that it was solely in control of the government because this was missed being or what the information said it became apparent that mr pryor was not actually charged with a federal crime she was charged with entering the white house complex in the treasury building and grounds which is not a federal crime as the district court properly found and as the government does not dispute on appeal they don't dispute the district court required scienter the essential facts of the criminal conduct in the next sentence they said it's further specified that she entered the white house complex and the united states department of treasury building and grounds language  informed her of the specific conduct alleged to be a federal crime so that since it turns out that was not a federal crime to think two arguments one is the district court should have just it's  case of a point because no federal crime was alleged in the information or nd of all the district court could not have found mr barak guilty of an attempt to commit what's not a federal crime because i can i ask you about the st one of those so s that as i recall there was no real twelve motion ever filed in this case right the motion that was filed after the close the evidence for the real one and motion yes so that if there is no right well motion to dismiss the so if there's an oral oral twelve motion to dismiss the there was a motion that the district courts dismissed the information because it after the proof was made because i don't think it would have been proper just follow through twelve motion in the sense of there was no proof the government would have said we have to wait good you got to remember the government didn't focus entirely almost almost entirely in the district court was that this did charge a federal crime that white house complex and department of treasury building and grounds was a federal crime was included in the statute i'm so in the papers for the for the judgment of acquittal it's specifically asked the just told that said to the district court that it should dismiss the information because it fails to state a federal offense and the government said that the timing of that was not improper they specifically told the district court that because a defendant can raise jurisdiction at any time that the timing of that was was it's not the timing they said that was the problem was so that i think that's true if it's jurisdictional so and i know that you have the argument that there's was a lack of jurisdiction here but if we don't think of it in terms of jurisdiction there's still the possibility of following the rule twelve motion to dismiss an information on the basis that a crime is not alleged based on what spelled out in the information and that i think that what what one would need to make that kind of argument is apparent on the face of the information but it wasn't made at the time that the information was issued well i don't i don't think it is apparent on the face of the information because memory in that the government said white house complex department of was breached was pennsylvania avenue that would be i think that would be a closer case for in ari i mean that might still it might still be an issue the governor let me put this waiver route troublesome if on the government would have done exactly what it said in the district court it dissolute it this white house complex and department of treasury building or grounds is a restricted area under the statute and you can't decide that judge until the facts come out at trial because this can't be a pretrial hearing the pretrial hearing would be the trial itself century about what it is so that's the reason but in the papers it said during the papers the group twenty nine is said that they didn't the information the district courts should dismiss the information for lack of jurisdiction and the government said that the timing of that was not a problem they specifically said timing is not a problem it's incorrect legally is what they said so they specifically told the district  t that it's not the timing of the argument that seemed correct but it's the it's the that some of the merits of the argument was incorrect so i think that's why they couldn't be a rule twelve in st of all our jurisdiction doesn't have to be filed it can be raised in any time and nd of all would have been premature in the sense of it required to prove the trial of the government's witnesses testifying that the white house and its grounds one of my favorite names for a defendant the government spends much of its time arguing that schmuck applies to this case it simply does not it's talking about a lesser included offense and the government even cites cases in this brief decided long before schmuck saying that attempt is a lesser included offense but even if we agree with you on that it seems that the district court relied on rule thirty one c two and said that this was an attempt to commit the offense that was charged why isn't that what happened here i do it i think that's what i do agree that that's what the district court tried to rely upon although the government disputes that in its brief but that's not because the offense charged which includes according to the government the specific conduct in the essential facts is not a federal one right yes and that is what the offense was that was charged in the information seven hundred and fifty to a one as far as it's the same statutory provision ri so let's suppose she were charged with assaulting a federal employee you know general assault federal assault provision eighteen u s c one hundred and eleven i think it was in the information said that she that she committed the assault to which she did the treasury department employee and then the evidence that comes out  d trial is that she punched a u s park official who is an interior department employee and the judge says well under thirty one dollars c two there's no problem here it's still the same offense i'm going to find her guilty you can you file the same sort of motions rule twenty nine motions and what not that  did here in in the in the court found her guilty of assaulting an interior department employee when the information said a treasury department employee would that be a problem i think it sensibly that the government must prove the crime charged in the indictment and permitting the government to convict the defendant on a material different theory or set of facts which i think it is but even if it wasn't the  think there's a major difference there because the two both of the things you've i posit sized are federal crimes in this case it was complex in treasury department is not a federal crime well it could be depending upon the facts right if if if let's suppose the president had you know gone to visit the treasury department and give a speech in was in that building at the time she jumped the fence and ran up then that would be a crime right because the way that the statutes written depending upon whether a protected individual is is is at that location in you breach it then than then it's a crime right it could be but that's under different subsection of the staff that's not or it's grounds no no she's charged with with a one which is entering any restricted building or grounds that might but then it's an and there's there's there's a there's a definition of of restricted building or grounds has different definitions but it's still the same offense right well it might still entering a restricted building or grounds it's just it's just a difference in syria of why it's a restricted building or grounds right which needs to be charged in the information you need it the what she was charged with was the term restricted buildings or grounds means any core of the white house or its grounds is what the government claimed in what the district court convicted her of but that's not what she was charged with she was charged with a totally different set of facts but but  when you saw that information what part of restricted building or grounds did you think that they were alleging well until the  the district judge was asked a question couple of questions about attempts certainly argument i don't focused on i'm not sure i reviewed it did you have an opportunity to argue against the charges against the shore yes s a tense yes when we hear arguments did you can attempt to commit what is not a federal crime she was charged with what's not a federal crime but in other words you didn't make any factual if by that point we find that point the government had presented its entire case we didn't you're correct that we didn't put on any evidence but we may well have approached the case differently the government had presented its entire case on i don't think were required to show that for two reasons st of all she's convicted of something that's not a federal crime as the charge in the information in the government never moved to  is given a much warmer much greater freedom well i don't i don't think so in this sense because the rule says unless in the talks about the court may permit any information to be amended in anytime that read that doesn't say the court can do it on its own that requires the government to move to amend the information which it specifically said was not it was unnecessary and it was not doing well i don't i don't read that  the judge is doing it on gel well i think the court the rules are written that there's many rules written in say the court that the defendant or the process government or the court on its own may this doesn't contain th is says the court may permit me somebody has to ask for the court to permit some so your basic argument then is it was improper for the district judge to that this modification absolutely well that's a nd argument the st argument is what i said about not being a federal crime but yes they did unless the government moves there's nothing the district court can do to permit something so the information without the government's participation then why wouldn't harmless error apply and if we i'm going to them that you're going to say almost there doesn't apply and i want to hear what you say about that but if we assume that almost er does apply what's harmful about the error here hans i come back to when i said the harmfulness of the error is she was convicted of something that's not a federal crime i think history basic basic right that people have to be convicted you know to be not saying close enough for government work that's not the way the criminal justice system works so i think that's that's the main prejudice she's convicted the nd thing is the government's to civically said we're not asking you there's no need to amend the information but the conduct she was just on the st one the conduct she was convicted of if you if you allow that it's an attempt the conduct that she was convicted of is a federal crime to conduct the conduct maybe although there's a whole thing about it was without lawful authority which i think it's right up putting that to one side you have the argument on that but the attempt the conduct that constituted the attempt is a federal crime and so then the question becomes what's harmful about what's not harmless error about allowing an amendment of the information in the way that it came about here i think i think an amendment as opposed to a variance in amendment of an indictment and i'm going to say information's again is per se reversible error believe as information well i think there's all the more reason to hold the two stricter standard here where the government drafted the information was totally within their control and they specifically told the court when the issue arose and although we're not amending it f fact there's much different fencing in signage and secret service officers i don't think that it's clear that she would have attempted to enter there so i'm not sure that i agree with you putting aside the without lawful authority but no weapons i'm not sure i agree with you that the conduct constituted the crime of attempt in any of it well i suppose he had just crossed  avenue and never even reached either location either the treasury department or me why the elves but she had intended to cross into the white house and she was stopped and those are really and those unequivocal evidence that she's so attempted and she can in the crime if she was charged with that crime if she was cell was she says she said she wanted to talk to trump is what she said she didn't say she was going to enter the white house without lawful authority she said she wanted to talk to  and the government presented no evidence about a hand judge so the many what may be missing from your i pathetically is that without lawful authority part of it so the government didn't prevent could have asked any of their witnesses did have the lawful authority in the chose not to for whatever reason in labor illicit evidence that it was a restricted area everything inside the fence was a restricted area they did say that but the duck doesn't mean she did they didn't say restricted to who or what in the word no you gotta remember where she went over the stepped over the fence in the gate there were no signs saying anything about restricted area or no entry those signs were to much different location than in where mr parr stepped over the fence so saying that it's restricted entry also i don't think proves the government has to prove beyond a reasonable doubt that she was without lawful authority saying that it's a restricted area doesn't prove that mr barak did not have lawful authority to enter right and let me make my colleagues don't have further questions at this time we'll give you some time for about a mr kramer a q what have from the government now mr lennox and here on our good morning america please the court downline or united states the defendant in this case is charged with the completed crime of entering a restricted area under eighteen u fundamentally the defendant has never identified any prejudice as a result and the difference between the crime with which she was convicted the good kind is that what why not ask to have the information  amended adjusted once once you're at the stage of the case where you've had your chance to argue that the white house count grout the white house complex and treasury department count and the district judge rejects that so you know that you're in a land in which what's spelled out in the information if you include the factual statement about the white house complex and us department treasury doesn't count under the statute then why not adjust the information your hon don't actually think the timing of the case paris al the conclusion that the government had that opportunity and its responsive pleading to miss jobbers rule twenty nine motion the government continue to argue that the white house complex the entire complex was covered by the statute as part of that pleading the government noted that if it believed it was necessary the court could amend the information under rule seventy page one  of the appendix there was an argument on that motion that also constitute a closing argument at which the defense was given an opportunity to present evidence and declined and then end its  written order the court both resolved the rule twenty nine motion and then went on to result the merits of the case so there wasn't this time between when the court rejected the government's statutory interpretation and when it made its final decision for the government to vent say well given your honour's understanding of the statute you should amend the information but fundamentally if the complaint by defense counsel is that the court amended the information that amendment was proper under will seven and if there was some error and will seven because the court did it to a sponsor rather than upon a an explicit motion from the government or was pharma because again there's just no prejudice here that the defendant has no factual defense to a charge of attempting to enter the white house she believes she had entered the white house when she arrived at the treasury the buildings portico entrance way pillar entrance and she intended to go there to speak with president trump such and the defense is never identified even today a how defense to attempted entry of the white house would have to for certainly they never saw the side of continuance when they just your court indicated that he believed the government had a better argument for attempt they had the opportunity to put on evidence at a time when the government had already filed a cleaning saying to the court you should find the defendant guilty of a time and so fundamentally it's harmless the court can also the courts seem to long fused together and the court bench or court here wasn't entirely clear that it was proceeding under under that ground and so if for some reason by narrowing the factual you know raised to says an issue potentially in so the government reopened its case in put on the evidence that just before  the incident at the treasury building she had gone to the vice president's residence in tried to climb the fence there the list chased off and got in their car and then that's when she went to  the vice president's residence in that's a restricted area would that be ok i think there are here are there's potentially our due process notice problem but not necessarily argue that she was guilty of attempt i believe that the government raised the prospect although i'm not one cent certain orally during after  so just so that we're clear your position as to how we are supposed to construe the language of rule thirty one  two in attempts to commit the offense to be charged is that we should consider a fenced charged to be whatever the statute is in and the so so let me ask you the same hypothetical i asked mr kramer suppose she was charged with assaulting a federal employee namely punching a treasury department employee in the evidence at trial that that convinces to the fact finder here the district judge is that she actually punched an interior department employee part park police official no problem finding her guilty of that when that's not what was alleged in the information under rules  assaulting a federal officer it's just not a treasury department officer it's an interior department officer so she's found guilty of the same statutory offense assaulting a federal officer and make sure my colleagues don't have additional questions for you thank you mr letters again esther kramer will give you two minutes for about oh thank you honors several points st of all the government's claim that the factual basis is irrelevant as again it was never made in the district court or in their brief in fact in the district court they said just the opposite as i said includes the essential facts of the conduct and informed her of the specific conduct alleged to be a federal crime  and fifty five i want to say about the amendment to the indictment at page one hundred and thirty eight of the appendix they said there is no need to amend the information in light of the authorities discussed and they said it is entirely unnecessary to amend the information because of their argument that the white house complex and treasury were restricted areas i'd also like to point out of page one hundred and ninety four dollars in the appendix they said subject  matter to be raised that this is the government subject matter can be raped in time the problem of the stub ject matter jurisdiction that they made a couple of days ago dismissed the charge is not the timing of it at this it's that there's no basis for it legally so they were not arguing that the timing of it was improper and then that perhaps the most troubling thing is the government just said a finding under either c one rule on thirty one dollars scene one or  three would also be appropriate in this case which could also uphold the district court and that's just completely incorrect because the supremes court schmuck was talking about lesser included offenses which the supreme court may clear in carter meant lesser in terms of magnitude in punishment so it can't be c want or c three contra because those it's not lesser included in terms of punishment in this particular case so in argument it's also proper under see one and see three but i think the district court i don't see too absolutely i think the district court said the government has not asked the district court specifically said i know that the government has not asked to amend the information and i think the district court was relying totally on c two but you cannot attach attempt to commit something that's not a federal crime which gets back to