in this case the grand jury indicted mr alcott for the offense of being illegally found in the united states at the close of his trial however the district court judge instructed the jury both orally and in writing to clearly everybody was asleep that means that we review from playing here and the bottom line question then is worse substantial right really affected such that the  should be noticed ok there is an argument that they don't need the error doesn't need to be noticed because the crime in effect as well the crime is confirmed that questions of venue are not simply matters of formal public or legal formality but actually affect public policy because it is a fundamental constitutional right to be tried in the district in which  and the answer is no for a number of reasons not only the reason that the court itself raised which is that these are but three different means of committing the same offense but also for several other reasons t first of which is the trial focused on a cracked offense and that is a big distinction from the cases that the defense relies on such as you know where the court reversed for constructive amendment and what i mean by that is the indictment was read to be jury and that's set found on the evidence the trial focused on when he was found and focused on an interview on march twelfth the government only argued the found in theory and never argued that the defendant should be convicted simply because he reacts hard you know what i agree with you still is all get out because he had an interview in this country so he was here especially right down here and that well followed a reentry but the problem is that the jury was instructed all we had to do was find that he reentered and nobody questioned that because just wasn't an issue i mean so therefore found here well i have two responses to that and one is i'm going to talk about what the court did and how it i think corrected that erroneous instruction i think that is the next  also want to get back to you know why it doesn't matter and i think the fact is that because of the focus of the trial on the founding and in the argument by the government that he needed to be found and the government went through the elements of the offense with the jury and discuss as found and said several times you need to find that he was found here that there really was no confusion on the juries part of what it needed to do and the reason that is so different from the case that other construct of the many cases where the court did reverse is of those cases ships the in chino the government put on evidence of the alternate theory or the impermissible theory the court instructed that they could find him guilty of the infamous theory and the government in those cases on found and that that confusion is not present in this case in fact we know that because when the defendant when the defense counsel argued that it could be real that they should look at whether the date in indictment matched up to the reality or the founding date the government got up and he jacked it objected in clarified that and said no he's not charged with reentry it doesn't matter when he was reentered it only matters when he was found and the court then said you need to find said to the jury you need to find the defendant was found on or about november twentieth two thousand so i agree that maybe to say it  instructions a little strong in the sense that i don't think the court said that cognizant that the earlier instruction only said reenter but it did clarify the jury what they needed to do and it did tell them specifically that they needed look at the found and so that's one reason why i think that there's no prejudice also let me just add before i move on to the next point it's also the defense i said in a reply brief the monday case for a different proposition but looking at instructional error the court must look at the entire trial in context and not just at the instructions the second reason i think there's no prejudice is something out of the court hit on which is  overwhelming whether the evidence is overwhelming is considered and is the test even in constructive amendment cases if you look at the troy case against the defendant in the reply brief although that case found that revers the court noted that there is no prejudice where the proof is overwhelming now didn't find the evidence overwhelming that case but that suggests that that is the right standard here and because the proof of him being found was overwhelming i don't think we should be concerned that the defendant was prejudice the reality is in non border cases there really is no distinction between reentry and being found you have to find the defendant reentered in order to find them both difference it may not be a pertinent difference if you're actually found here if you've got all the official restraint stuff right whatever which isn't really a shoe in this case because he was here presumably for a year right so in both of his and his found the evidence was overwhelming the issues of the defense that would go to rearm free because he wasn't found at the border was not really issue undergo dinos were bad and the court said there that the elements  real air then why should you say people are sound asleep and well because i think it's not really are i mean for one thing i think the court and making that specific instructions for the juror but it wasn't see that's the problem it was in colloquy the counsel and it was almost as if it was an aside and instead of doing what should have had which is one of the other but particularly the u s attorney who should be trying to protect disagree with your characterization of the exchange and that is that the defense attorney said if any of you have a reasonable doubt about whether the defendant really entered or was found in the united states on november twent thousand then you must return and then the court jumps in and kind of corrects that onto what needs to be on are about and then the government counsel says and further if i may state my objection more clearly the indictment charges then found in the united states it doesn't think you know the defense counsel referred to the instructions the court then addresses the jury when all of this is being said you know obviously not at sidebar but in front of them so i think it was very clear that the government was saying no only found and needs to be an issue and the court then turned the jury and told them that was the case so that you know i think that helps reduce any chance of confusion on the jur you know it's it's fairly simple or so it's difficult to say that on or about when you're talking about you know a drug deal or whatever slightly ambiguous and that the government shouldn't be so i mean that's another instance of kind of confusion so many of these links which well i think there's an argument that it was maybe a little sloppy or lazy by the government not to call the arresting officer and i don't know what the circumstances were that may have caused that but i think the question is again you know does that require reversal is that a variance that matters and the answer is no for several reasons  w there was no defense regarding the date as there could not have been he was in custody that entire time they were on notice that that's what they got that the government was not going to put on evidence regarding the november twelfth because in the witness list in the  there is a chance that they could have found that he was guilty of being found here on the day he was arrested well there was no evidence about him being found on that date so when he was arrested  interviewed in the jail by a government agent cracked on a time at a time certain rights and then the jury was free to find that he was guilty of some crime that he had committed on or about november twenty s which was well in advance of when he was interviewed correct and to that date november twentieth is more dearly no more nearly the date thirty re energy legally if that's the time when being found was not a crime and it's only in the i don't know recent what fifteen years or less that it's been changed and in my experience this is the second occasion when we have been quibbling over what is the date because somebody isn't paying attention either somebody who is drafting the indictment or somebody who is was responsible purposely for presenting the evidence is and i think that in these cases we're going to get about what the court permits and if we say this is the ok we're going to get it because we get it when say other forms of law enforcement if this is ok that's what we get now if somebody isn't going to take charge and say let's do it right let's play a teachin let's at least have one person in the courtroom who is a pretty even cares of sending a message that somebody has got to pay attention we should reverse this country well if i may respond to that yes i certainly understand the court's concerns and i'm not going to say that that you know that those concerns are implicated in this case i would reasonably me i don't think four months is such a long time but that is we should say as a matter of law they can't determine if that's reasonable in the air as to the instructional error you know i think it's a little bit difficult in these non border cases because as even this court has pointed out i think it would in particular oh it's now you know it's that court talked equating the two in her closing argument i mean in some sense she was helping to invite that error and i think because in the non border cases when the defendant sitting in front of us it's just you know there's really little practical or pragmatic difference because the reaction is invested in it and because of just the nature of the crime that it makes that confusion you know even for his own counsel the confusion can be there and so i think that mitigates against the prejudice in this case and against the sense of you know what could be potential you know feeling of just the sloppiness of the case or that somehow the government and the court is itself to blame for maybe a reversal is that you know the confusion is somewhat understandable and i'm on board are cases where the distinction is minimal and what the defense counsel is whether defendant is in itself he was found in jail no i don't believe i don't believe that there are that that agent testified that that is where the interview took place i think that was cut from the chair it was no evidence that he was in jail on the occasion when he was there i don't believe so then the date of the indictment isn't such a problem although it's four months difference because maybe it's the date for the offense that they're supposed to find the second thing i think compounds the situation here is the verdict form reviewing for today i've reviewed it and