i think there are a number of convoluted little twists and turns but essentially what it what it comes down to or where it begins is the notion that the testimony of its pression hearing was not on the key point or what turned out to be the key point which was the consent of a tiffany granderson to enter her home to look for mr fry was not particularly factual in nature the district court relied on her verbal consent is authorizing the entrance of these officers to look for my client and they get not one of these officers when questioned closely was actually able to give an accounting of your argument seems suggest that the officers have to remember the specific words that that somebody used in granting consent in order for a court to make a finding the consent was given here you have three separate officers this is on page five of the opposition brief who testified explicitly you know she said yes you know you can come in here she said yes she gave consent and the district court the magistrate judge may have an explicit finding that consent was given out how can we overturn that decision as clear error given that testimony so i think i want to if i went that far i would want to pull back just a little bit to say that i don't think that it's an absolute prerequisite that somebody has to be able to recite every word with precision that the person said but here what you have is a series of people and certainly your honor is correct that ultimately they all say she consented but when their question closely each of them says things to the effect of well i can't really remember what she said i don't remember the exchange and you also have countervailing considerations you have you know i think most  because they were under the impression that she had simply disengage from the situation and then of course you have officer mark who says you know i wanted to ask her again before we actually got into the apartment because i've been around the block which implies that he had some doubts about what was going on here and then of course on top of that you have the reason this court reviews for clear are is that the district court is in a better position to reconcile all of those ambiguities and make a factual finding here the district court ma finding you're asking us to overturn that is clearly erroneous when three separate witnesses explicitly says she gave consent she said yes i just don't see how you overcome that i understand that it's a difficult hill but i guess what i'm getting at is i think that we don't actually have a wealth of facts about the verbal consent really any any consistent facts except for the claim that generally speaking she's on the show who gave consent without anybody being able to really even paraphrase it but and moving on from that just to some of that is she views i do want to try and get to the other ones and we additionally have this other this other question of if that st entry is difficult we're to find that problematic we then have this nd entry where matt who expresses some reservations about the process says you know i wanted to double up in and check again and of course by this point you also have two thousand and twelve and was on parole in two thousand and fifteen and sued one thousand and sixteen couldn't the jury infer from that evidence alone that he knew that he had been convicted of a felony i actually don't think so judge and in i think that the average person and  frankly i was thinking about this even in terms of myself before i went to law school i didn't know i certainly had no idea really about what the range of punishments for various offenses was and you know the difference between parole and probation or  supervisor release i didn't know the difference between going to jail and going to prison that varies from state to state in massachusetts where i used to practice for example there are misdemeanors that are punished all by up to two and a half years in county jail  infer from that and had previously been convicted and emitted that as of the day of trial they knew they had been convicted of being punished by a crime and what i'm what i'm positing is a chronology where they're convicted in two thousand twelve that's what the stipulation said and they're on supervision of the probation officer testified from two thousand and fifteen to two thousand and sixteen and inference could therefore be drawn that the person was in jail for three years between two thousand and twelve and two thousand and fifteen an  go he knew that he was convicted of a crime punishable by more than one year because he served more than one year but of course you're also the jury was told that the it's not just a question is sufficient they also were told that they needn't even consider that facts and we would really be speculating about whether that inference was was was borne dealing in plain or review right so we do have to consider whether your client was prejudiced and also whether it would affect the integrity and you know so forth of the system may just been the impression that that was the form of the restraint that had been imposed the moving on and since i've got twenty seconds left here to the final couple of points we also  opinion testimony which was very damaging to mr fry here you have a case in which there are seven people who have access to the area in which this gun was ultimately discovered you have a number of different kinds of items in there it's basically a depository for everybody's detritus this room in which this gun is discovered and there is no obviously mr fry deny that the gun was his and nobody reputedly saw him with a gun previously in fact the testimony was to the contrary and so what you have is this phone call which means granderson doesn't remember doesn't have a personal recollection doesn't have a personal perception of what is allowed to become essentially a th pair of ears for the jury to tell them not the meaning of what was side not an explanation of the significance of the words but in fact what the words were and that essentially puts a confession that wasn't ma know that's that's true it's not completely identical but it's still it's not the case that it's up to the probation officer to convey it what the condition says is that the probation officer may which gives the probation officer the discretion whether or not to require actual notification and it seems to me that if the district court concludes that i'm a risk that's fine that's that's one thing but the actual decision that impacts me do i have to tell my employer do i to tell my social relations do i have to tell people what an educational institution whatever the case me may be is the one that's made by the probation officer so if the if the word may had been swapped out for must would you have a problem with the provision officer must i don't you have a delegation problem the other thing i wanted to flag for the court is that there are a number of other cases with this cannot mean that every supervised release condition that says you shall do something as directed by the permeation officer is off delegation problem i don't i don't think i don't think that this comes down to i think that one can see the difference between administering the details for example of i mean if you have to attend counseling twice weekly or whenever there is some impact on you know scheduling the liberty there but if you are talking about things that are really significant restrictions of liberty potentially including employee ability who can assist which is you have to report to probation a directed permission officer conceivably could say i want you to report to me every single day at nine am i mean obviously a person could challenge that before the court but the point is that it's consistent i mean i don't think i don't think those conditions are necessarily not oner well i think that i think and this is what i wanted to follow of the court and i know i'm i'm way over here but in some of these other cases and i haven't raised it here and so obviously i wouldn't anticipate that the court would consider it but i did want to flag for the court in terms of its consideration of this case there are previous cases in which is pending where an argument for example is made that for that very reason this is not the sort of condition that ought to be or can be a standard condition that if the court determines that you pose a risk of committing further crimes against another person that's this is not just me it requires the court to find something particular st or an organisation but it doesn't one of the other issues is raised in some of the other cases more explicitly is that it doesn't define upfront doesn't require the district court up front or the notify the defendant up front but what the nature of the risk is or to give him  an opportunity to contest that word to define the scope of the risk which in these other cases it's been argued is a violation of peterson and also doesn't necessarily precisely because it is a standard condition doesn't identify whether or not a particular individual is really need for all of this kind of particular restriction just as in any particular case you might not have a situation where somebody needed to report every day at nine richard's place a court monica richardson we have the united states of america with regard to a motion to suppress you i think the court focused properly on that to tell you the circumstances and the standard of review here which is for clear air we did have a situation where the person initially declined to permit entry but considering that the taliban circumstances new fence that followed the district court in its order adopting a magistrate judges reporting recommendation found that in fact there was verbal up again the following day said the battery problems not fixed yet what you know but let's make it happen and then show up again and when they showed up the rd time the bracelet was in the street so at that point i think that it was a little less than perfectly clear given the circumstances it was less than proving that he was actually still that it was a valid address i think i think that they properly didn't just walk right in and say hey we've got we've got a parole orange for this case i think in other cases that might be the judge was pretty clear that you couldn't if you could ask questions about what you recall but not to just have her go through the you go through that transcript to decipher it i think that's correct that's correct but the questions they developed at the judge left open the as the questions as they developed indicated with the transcript audibility i'm sorry the unability hearing i already have having being conducted the words already having been clear regardless of the court's determination as to the specifics it would be harmless error in any event given the clarity that i want my stuff stuff back i want my gun i mean let me back at the harmless error question for a moment as in your brief you make the argument that she testified based on her firsthand knowledge because she was a participant in the call but the record at trial undermines that argument doesn't not did she not testify clearly that she doesn't didn't have an independent recollection of the call and that she was basically just you know reciting what she heard sitting there in the courtroom i think the specific words your honor and agree with the specific words she didn't have specific recollection but in terms of the concept of what was discussed we're talking about the gun  asked do you remember that part of the call and she says a little bit no and then question you heard it today do you remember anything mr fry saying anything about a gun way back in two thousand and sixteen answer no so you're just  ying this morning about what you're hearing on the call now answer yes does that not establish beyond peradventure that her testimony was based solely on what she heard in the courtroom and then at that point did the district court having already ruled that she wasn't permitted to do that in the district have an obligation to say you should disregard her testimony about the i don't think so i again i rely on the fact that the specific words the specific language we were talking about the gun but also there was no objection there nothing on which to rule at that moment so your argument is that it was mr fry's obligation at that point to move to strike her testimony concerning  i understand the court's point that it could have been the court could have also done that so the spontaneous when limited could be not just to mr fry's obligation no the court could if yes on that also and on the harmlessness point it seems to rely on the instructions to basically to the jury to consider its own interpretation but did not those instructions also say they should interpret the tape in light of the testimony and the evidence in the trial and in that regard and it does compound gun so that's the st starting point in terms of harmless error and wasn't clear and obvious from the other testimony that it was a claim of ownership yes indeed it was with regard if there's another question to the issue with regard to the rai fishy that's been raised this court is reviewing for plane air we did have a stipulation here with regard to the prior where that stipulation need not have been entered where there any question or dispute that conviction i mean to us all and spoke to this in his district court decisions the fact that the defendant concedes as a matter of fact at the time of trial that he had been convicted of felony doesn't answer the question i mean otherwise is meaningless and that means that any time there is proof of a felony the knowledge falls therefrom i suggest is in fact meaningless with regard to these sorts of convictions with the support with regard to the felony convictions  flies the immigration status and there it was arguable that the immigration status is something that might not have been known here we had a stipulation explicitly entered on the record with regard to the felony conviction if he didn't know about the prior conviction he didn't have to enter the state no whether it's a misdemeanor or felony they know they didn't serve much time but technically it was a sentence that could have been more under the statute so it is a felony but they didn't know that you hear about that certainly at sentenc this case would be the classic law school case than an opposition what if they were and what if they just abstained and from supervision and cut off their bracelet let me let me give you a hypothetical in a pretty relief world where there a defendant is charged with possession of a an illegal alien right same crime as in rave and there's pretrial litigation concerning whether the person actually is here illegally and it's resolved against the defendant and so come trial stipulates based on  ruling that he is in fact an illegal alien so as to prevent any proof on that issue so that issue is taken off the table by rituals depletion is it your argument that even though that might have been arguable because it was because of the stipulation we understand the bind but my question is on earth the rd and th prongs do we not have to look solely at the evidence presented to the jury but that's where the concession comes in that it was plain and that it was a certainly not a concession that the outcome of the proceeding would have been different which is the rd and th steps of the plane or review there's no basis on this record under which the circumstances would have been different given the facts of this case i see them i'm out of time unless there's any questions with regard to the sentencing issues just briefly your honour's starting from the rd from the beginning of the questioning regarding the audibility of a v of the conversation there's really not it means the government's contention that when i understand the government's contention to be is that he becomes the district court itself ultimately found the tape sufficiently audible than necessarily every juror understood it to mean or to say exactly what the district court judge did or the same thing or you know  claim of ownership i believe was the phrase that was used but of course there's no way that we can really know that all these arguments were made to the jury right it's inaudible and she has no independent recollection of anything and you decide jury right and it was then that the argument but only after only after of course we have this money exchange where ms granderson does in fact i think say unequivocally i have no you know personally that's what she said on  that could have drawn motion to strike but it didn't but instead on cross i think very fact to fully the defense counsel was it you remember it was not no i didn't think but i thought it a good job of pointing out that she's just remember any of this and that was pretty effective well i think there actually i may be mistaken but i think there actually was there was an objection sort of in the middle of the line over or at least a similar line of he said i would that be objectionable question what's objectionable is that she didn't answer the question with an independent recollection she answered the question with what she thinks she just heard on the tape understood and then of course that's what was said on the tape as opposed to simply telling the jury you decide you know i think if we're going to speculate and draw inferences when we have ordinarily would preserve your germs follow instructions so the instruction here is you know listen to the testimony about this tape you know when you're considering it and making a decision about you know what its significance is in any money and questions highlight is that she had no independent recollection and she was just hearing as well so at that point doesn't the jury the jury's not going to necessarily defer to her assessment of it because and to do something they do it because she was a st hand purchaser so in other words all these things are aaron for the jury why isn't it fair for up to the jury to make a decision about what weight because i think that i think the supreme court is recognizing courts generally recognize that what sounds like a that a that a purported confession is a particularly powerful piece of evidence particularly i think you in a case where like here you have the district court judge sort of you know i'm sure not intending and harm but you know sort of highlighting it for the jury you know you should listen to what has been said about this tape and when you're deciding it's in if it ends but there are a lies i mean it's depressing and it's also the but it's major significance it's overriding significance lies in the fact that it does purport to be the only piece of evidence sort of out of mr fry's mouth concerning this weapon and it purports to be a claim of ownership and as the government i'm not i'm not suggesting that it's not an important piece of evidence i'm suggesting if the instruction is not a misleading one or an erroneous one it urging the jury to consider the testimony about this tape which is really important piece of evidence is a proper instruction right i think in the in the context of this i think in the context of this case the language of that  instruction is is problematic precisely because there was i think this definitive ruling that ms granderson was not simply to parrot what was on the tape or to interpret was on the tape for the jury but to testify from or own recollection about it and then this instruction is given that necessarily i mean the barriers on the main salience of the piece of the evidence the only other two things i wanted to say  were regarding the this stipulation you know i think i believe it's the johnson case from the supreme court that says in a situation like this where the law is abundantly clear amongst all the circuits of the time you're not required to you know make pile pointless objections on pointless objections i think is what the johnson case says you know which is the rationale for the stipulation in in the st place and finally regarding just the alternative proven rationale for the series to ask you on that is it your position if if a defendant were convicted of seven prior felonies and had served you know four years on each of them and you know in reality there is no conceivable argument to be made that the finite was not aware at the time of the offense that he had been is yes somebody has spent his entire adult life in prison on your hypothetical yes and i think that's i think the government is right about one thing is that that's going to be a relatively small universe of cases probably so sure but i think there's another he's on the run in so would it be relevant to go into his residence to figure out maybe if there is evidence there that shows we went well so i was primarily pursuing back on the idea of suspicion listeners but in terms of that the huntley standard also includes this requirement of under the particular circumstances right and it seems to me that your honor got to some very salient points which is that you know they've looked for this guy three times here at this address already and it's almost i think two months since the point where they find the kind of ankle pricey they've never found there they've never apparently found any indication that he was still there so at some point i do think that the repeated dissipation of suspicion in that way does take it outside of the realm of this is submission in the relationship to supervision that is that's required under the the standard ok we'll reserve decision thanks very much to both of you