of the agent the officer indicated that he was in fact here in violation because he was a convicted felon when as a court knows from our opening brief he of course had his rights restored the second instance the one  you point out judge noone has the key had a domestic violence or domestic abuse of violation that would have also prohibited him but in that particular instance it was the agent's act of omission he left something out of the how widely it's known that in montana that under the constitution apparently so rights are automatically with stuart i mean it's something that every reason lost or should know about so we can almost presumed that  disregarding that it's an intentional act and we go to the to question that a lot of record in this case and you know on the record doesn't tell us anything about those two matters to me but let me try to address the serious autumn and also address judge noonan's question as well  with regard to the this demeanor domestic abuse violation which under federal law would have prohibited from owning and and possessing a firearm or ammunition frankly i don't think that was known to any except the pre sentence investigator until such time she made that available to all the parties the day know that he had a misdemeanor violation so when i say it's in the record it's in the presents investigation report and no it is not in the record as far as officer golf knowledge of it or the agent who actually wrote the application and war i don't think it was but i'm conjecturing there but there is no indication whatsoever that either of those officers knew anything about mr mis demeanor domestic violence violation now i think judge noonan to go back to your question and to follow up on judge judy to she must question it's not there it's an act of omission they left  out if they left it out it can't be considered and it should not be considered in the frank sense either for the same reasons that the judge that she mentions without that information we have a felony that is mentioned in the warrant that doesn't count and it doesn't count because mr don't he's right through stuart automatically under the united under the montana cost of tuition when he had completed the service  all the information that they derived from the illegal search of the structure so that's gone yesterday well we have left in the warrant that supports the warrant is what will we have a felony conviction and he wasn't really from going here is that the end of the matter or now this is where i get to my question the law or you have to show that he was reckless or will fall in misrepresenting the information that it was not a felony violation he was allowed to own and possess a firearm and ammunition and that reckless assumption on behalf of all in the agent who wrote the application is reckless hands for a few seconds being in an area of your toes when you're in your understanding is you're now arguing to me the legal standard is george false if a never stops or if it's not truly we have to disregard it irrespective of his state of mind as you put it in the absolutely ok if i understand your question yes but you're what you're saying is that if it's not true i eat he's not under a felony conviction vision right which we are which actually turns out it was not true he was not enough was true whether he did it deliberately whether he could have reckoned sleep doesn't matter i understand that part but what about if you did and negligent you to say clearly and i think i agree with you on this point that if he were either intentional investor representing or reckless and misrepresenting the state of the facts the warrant falls but what if he is merely negligent and not knowing the truth i'm asking you for the moment to assume that he was merely negligent in not knowing the truth but then you are i think i'm in a position where i must say that the law at least at this point indicates that he must have been was so and so the question in front of us is what was his mental state was he reckless in which case you when you negligent and wish case  well that is also a fact that i would like to sli no one knew that this particular issue may have been out there until the p s r was closed for be that as of may i think that clearly law on this circuit is that i have i have a bird i have to show first of all there was air and if the court says that it was merely negligent and not reckless then i haven't shown that they were there but i believe that i've shown that there was there and as such i must show that it affected me that this was not raised below because it was not raised a lot i do have to group the government that the that the standard at this point player plane air i did not raise it below i wasn't there that's probably why i didn't raise it but it was not raised below and because  require since the vast majority of the evidence that was presented by the government during the course of this case and cheap came from the search we have to reverse the convictions well when that depend on the i have two other issues of that apparently don't interest the court as much but i just wanted to point out to you that we believe that those issues are extremely critical if the court rules against some the search i think that there are constitutional issues with regard to the life sentence we have it made it that jensen precludes two of those arguments that we've raised that we were three we don't believe that the third of the middle are good is precluded and that a magistrate who knew anything about montana law would you know immediately upon peanuts and like that you no wonder well i wonder if you know the civil rights have been restored so you could just as much for not asking you officer about that that issue right you could in your honor and i think we're going into speculation here but there is part of the record that will support this this certainly w warrant that was obtained by little officers from a local judge the fact is that mr downey was well known by all of the law enforcement officers and all of the judges and quite frankly they all believe that his felony convictions were still in information and that's the point that i would like to say way to your honor in this case you have to understand even if they did run a criminal history check which was a point made by the defense if you had put  that conviction that was way in the past that they easily should've known about this it's only two months ago that it was last year it's not even i assured that if they had run a test that it would have even shown up ask the court to do is to decide whether if you did william whether this would make any difference at all and in the government's view it just would with respect to the other two issues i know the court displayed the government believe and the officer and the agent had time to check it out ok thank you thank you very much good argument interesting case u  more helpful argument for us even though