it please the court i am sure a law and all i represent bernard moore would come before you today with an indictment that is jurisdictionally defective with regard to count for the possession of a firearm by a convicted felon under the recent decision in june by the supreme court in the hafe that is now the our indictment does not state a criminal offense the reason is indicated repeatedly throughout the opinion justice briar's opinion that is necessary to make possession of a felony of a firearm by a convicted felon a criminal offense  and a is merely a prohibition it is analogous to this court's case of israel in that case it involved importation of food product the government has submitted some supplemental authorities of recent cases it's a it's a rep of lee evolving area of the law or excites the reed case that's this court's decision recently and that may be distinguishable because in this court's decision in brown also may be distinguished because brown tracks the language of the statute it may not cite it but it does track the language and as long as an indictment either tracks the language or cites the statute that it may confer jurisdiction our indictment in this case and we have attached as exhibits in our response filed on the one thousand dollars of november we have attached copies of the clear that the knowledge of status requirement derives from nine hundred and twenty four dollars a two and not and i'm twenty two dollars g and that is repeated many several times during the opinion i would call the court's attention to the rehab the the opinion states that the two statutes together are a criminal offense and if you look at nine hundred and twenty two dollars a it is merely a prohibition it does not provide a penalty and it does  the conduct that says it is unlawful but it does not make it a criminal offense that may be confirmed that they confer jurisdiction on the courts of the united states and i understand that there is a recent case from your honour's home circuit and that would be the case which also has been cited recently by the government and we would submit most respectfully in that case at the indictment and we have attached a copy of that indictment and that does also cite to notify your client of the charges against him because omission of an element may be corrected by placing language tracking language from the statute in the indictment which ours does not do or by citing the statute which again our indictment does not have the statute cited in it and compounding the error in in the nd circuit's decision it also reasoned that the indictment defect was no injuries dictionary because in re after the supreme court did not order dismissal of the indictment but unlike the indictment in the nd circuit case paul de the indictment in rehab and also in this court's decision in read more than omit a mens rea a element and that is a non jurisdictional defect and that may be subject to plainer review a jurisdictional defect is not subject to planar review it cannot be harmless error it fails to state a crime against the united states and end the that portion of the indictment must be dismissed hafe applies only to count four mr miller has some other problems because he was convicted on other counts and there are really three issues which i would respectfully suggest taken together cumulatively  would require a new trial for mr miller and specifically i'm referring to the jury note problem the manner in which the district court handled the jury know where the jury expressed fear if they were  convict that by the way standing alone should require a new trial but you add on to that the fact that mr miller was shackled during the entirety of the trial i'm not suggesting that the jury may have seen him as as as i pointed out in my brief we have just the bare us indications that there was shackling the issue here is a very good case whether he got up from from the counsel table well well certainly that may have contributed to why the jury was afraid that that he that he leave the counsel table and walk around no he did not know actually what happened was was in which is which is the rd issue and that being the the question of him being able to question a witness during the rebuttal case counsel his trial counsel agreed that he could conduct that examination from his seated position at counsel table which had a  it so that the jurors could not see the shackling but the fact that he that he had to conduct that examination from the seated position rather that from up in the podium as i am before you today was certainly would certainly be a clue to the jury my understanding is that he only asked a few questions on cross no yeah he didn't do the whole cross did he well he did he did what was effectively an exe a direct examination of it is and he did a good portion of it so much so that that the trial judge to a spontaneous called a side bar and said you know this guy is rambling along what's what's going on here essentially convince trial counsel to take over so but the issue there the issue your honor says is that the defendant was shackled without there being any hearing whatsoever before the correct to be playing that would be playing error on the shackling however if we're taking the cumulative vera situation i think maybe plainer would not come into play why didn't either defendant raise an objection to the shack i wish i knew judge pauley i really do i it seems and again i don't want to go outside the record but it appears certainly from from this case that as a matter of course individuals who do not make bond or who are charged with certain types of crimes are routinely shackled but i'm only i'm only drawing an inference based upon what we do know from this baron record but you're right they did not raise it and the and the problem only reared itself when the district court actually pointed out in connection with mister with mr miller's application to be able to to question the witness but that the jury no  problem i would like to say we have a minute or so to go is something that i really like to draw the court's attention to the problem here is not that the trial judge conducted  parte of the of the individual two jurors who came forward it is that the trial judge st of all kind of cut off the two jurors who who came out to speak with him and remember these are these are civilians who are who are addressing a federal judge i mean i know lawyers who sometimes shrink in front of federal judges but more importantly it was the summary of what of how the judge  not advise the lawyers number one that all of the jurors were where were felt like they were threatened and number two that their names would not appear anywhere in fact of the matter is their names and their identities would be all over the transcript of jury selection and so it was the fact that that the trial judge most respectfully really misled the trial counsel that that clause not two in the case of my individual who had already made a motion for mistrial based upon the initial jury notes saying that we were afraid that that he was he was not able to pursue and did not pursue was lulled into not pursuing a renewal of his motion for mistrial but more importantly as i think any trial lawyer would do under those circumstances request that the court with coun conduct individual voir dire each of the jurors to determine not only what is the source of this fear because there was nothing that occurred during the trial and the trial just certainly covered in his questions with the jurors he did speak all of them they're needed under those circumstances to be a hearing involving each one of these jurors with townsell present able to ask questions so that they could get to the bottom of really what this fear was and that  is that is it is a critical element and that is reason why you don't have a fair and impartial jury i thank you very much this memory  good morning in may please the court call mary any appearing on behalf of the united states joining me at counsel table is assisting united states attorney shannon shah who tried this case before the district court opponents raise a multitude of challenges to their conviction nearly all of which are subject to plain error abuse of discretion review and none of which are meritorious particularly in light of the overwhelming evidence against appellants for thirty eight days of pounds video recorded themselves committing armed drug trafficking at the trap which is a freestanding two hundred dollars square foot building over which they had dominion and control and inside of which law enforcement found tens of thousands of dollars worth six different kinds of drugs hiles of drug distribution paraphernalia multiple drug ledgers over one thousand five hundred dollars in cash fifty five dollars rounds of ammunition and three loaded firearms one of which had moore's d n a on it and one of which had miller's fingerprints on it and i took your attention to the indictment issue with respect to rehang absolutely to avoid the plane our standard had notice and they knew what it was and there's no question that they knew that even though nine hundred and twenty four a wasn't named specifically that they were i mean that is the actual charge that makes it a crime i guess so with interstate commerce rd that indictment would have been sufficient before hafe and if the supreme court's as stated in her hey if that the language of the twenty two dollars g and karen lee includes a requirement that the defendant knew he possessed the fight and start anew his prohibited can dismiss it only if it finds that there is fatally deficient under the plain error standard of review and read for clues that finding in this case while the government tains there is no error in the opponent's indictment this issue as well as appellant challenge their jury instructions which the government turning to the other arguments that mr miller raised there's no plain error in shackling mr miller because i mean it seems like there was error at the question is whether it's correct it cannot be a player well or whether question the argument i mean i think it's probably a plain error but it seems like the question is whether defect is substantial rights just i'm sorry that's right that even if and the government does think there's an argument perhaps instrument or wa engage the hearing correct yes the cases in this circuit they deal with shackling a particular baker the defendant not had always raised an objection which is why the government does believe that under the supreme court's case in a style which dealt with now the shackling is the presumption of innocence and here there's nothing on this record to show that mr miller's presumption of into of innocence was impacted i mean just to be clear there's nothing in the record that indicates that the jury saw the shover act correct and in fact i think the record indicates to the contrary the only time the shackling comes up is when the district court after mr miller asked to go partially pro se asked mr miller in his counsel what do you want to do about the shackles and instead of asking for them to be his counsel suggests in addition to court agrees that he would just stay at defense counsel and question the witness from there i think that certainly indicates the jury could not see the shackles i also think this jury issued a split verdict as to mr miller acquitting him on a drug charge and a fire charge which shows they were not prejudiced by seeing any shackling i think the sort of nd reason why there is no effect in substantial rights another sort of thing that death and the other cases look to is whether or not the restraint impeded his access to representation arrangement where he question a witness while his counsel helped him and in addition as i noted at the outset of my argument mr miller's convictions were supported by just overwhelming evidence that he engaged in armed drug trafficking and that he possess firearms and he possessed them in furtheran had he objected he has a violent criminal history he was seated next to a codefendant who also had a violent criminal history and they were facing charges of armed drug trafficking another issue mr miller raised was the jury note  certainly did not abuse its considerable discretion in dealing with a note that came from the jury the juror sent a note saying that some of them had a safety concern with the agreement of the appellant's the district court called them and it agreed that specifically it was to question them on whether they had there were any outside influences to jurors self identified and came forward and said that they had these safety concerns both of them said they were not affected by outside influences both of them raised general safety concerns about whether one whether the defendants would own her name in the jury verdict and the other whether he would run into the defendants walking out of court house to court room door that nd defendant did say in response the district court sort of ameliorating his feelings of saying no no you won't walk out with them that's what everybody else said that doesn't indicate that the rest of the jury had safety concerns and were coming forward that indicates that the rest of the jury did not share those concerns and was seeking to alleviate it from that point or i think your colleagues argument though goes to  the district judges failure to inform the attorneys about the concern about having their names appear in the transcripts i did but i think that is perhaps going a little bit for them what that asked i took reading sort of the ex parte is that juror was asking if her name would appear in the verdict or if anyone would know about the verdict in which point the district court said no which is the correct is not the foreperson you're not in sort of and gave them the general all the parties agreed on that there was nothing for them to be concerned about there were no safety concerns here everything was fine and i also think the nd part of this is even if perhaps it would have been better practice for the district to have had this hearing there was certainly no prejudice here the jury as you case as well and so i think it's certainly within the district or it's broad discretion to handle these two juror concerns in this way sort of speaking to the jurors ensuring that they could fairly fairly deliberate and issuing an instruction to the entire jury to make sure that they knew representation first of all a defendant does not have a right to engage in hybrid representation meaning that he retains counsel but then also can go partially pro se to conduct some of the trial itself because the district court has discretion to allow that syringe and further there's no requirement that the district do a forever hearing when it allows a defendant to engage in hybrid representation for a friday hearing is only required when a defendant asks for invokes his right for self to sell for a presentation and this clearly didn't happen here miller never asked to go pro se he specifically asked to proceed as quote co counsel to partially question one defense witness with the close assistance of his counsel and in addition even though a friday hearing was not required at the government's request the district court certainly conducted an adequate counsel's competent that he had no experience it would be at a disadvantage questioning the witness and self his counsel is there to advise him to be held to the same standard as a lawyer and he had to follow the court's rules and instructions when there is certainly no abuse of discretion there the court did everything to give mr miller precisely what he wanted and ensured that he made that choice knowingly intelligently and voluntarily if the court has no part of the position and the government for the reason stated today and the reason stated thank you do our limited time i would adopt all of the issues in our in our initial brief and i would say that the decision here on this on this jurisdictional issue must be consistent with eleven circuit precedent and twenty two dollars g is merely a pro it merely describes prohibited conduct what categories of individuals are prohibited from possessing firearms if you want to respond to the government's suggestion that read a few has sort of an in some cases it it might be it it might be just a missing element in an indictment in this case it is just missing entirely it is not there's there's no language trick tracking the statute on twenty four dollars a and there is no citation to nine hundred and twenty four dollars a and without those two statutes in tandem it does not cite criminal conduct and as a result we submit that israel is binding precedent as well as the the peter case t can i ask you a question about that though and if if we were to conclude that nine hundred and twenty two ga has an inherent mens rea requirement or that not it seems like the issue for your client would be whether your client had noticed right notice you cannot correct a jurisdictional defect by what right  that there is and i don't know that that that's what we're going to hold but i'm just asking you if it's correct that there is an alternative holding somewhere in re hafe that nine  implicitly has a mens rea requirement to act then the issue it seems to me would be whether there is notice to your client by this indictment about knowledge and maybe you disagree with that and if you do that's fine i'm just asking you what the basis would be would you disagree and we submit that that the correct reading a review is that these two statutes operate in tandem and that we have a jurisdictional defect that cannot be cured by whether or not these defendants may have known that they served four years in prison previously that jurisdictional defect may not be corrected by adding facts but by look going behind the indictment the indictment has to it has to charge even if the government is correct that if can be read for an alternative holding the twenty two dollars g has an inherent knowledge requirement to submit that that is a misreading of i understand but at the question asked you assume that i and i don't know that we're going to reach that conclusion but it's helpful to me to have all the different alternatives out i just want to make sure i give you an opportunity to address it that it would not that were not it is not a complete criminal statute thank you your honors with respect to the jury no question the in all of the other cases that deal with this issue the district court provided the transcript of his  with the individual jurors to the lawyers immediately thereafter giving the lawyers the opportunity to then make objections or for further applications that is what was not done here but more not only was it not done here but but the district court materially materially withheld certain critical items like for example i don't think it was done intentionally well i'm not i'm not saying that i'm just saying that that unfortunately this is the effect of it ok and the effect of it is and specifically the nd juror who claim to be acting on behalf were speaking on behalf of all of the other jurors specifically asked are our names documented on the transcripts where someone could obtain them and i know that the district judge was concerned initially before even conducting these these situ of these interviews that the jurors were going to ask if they could not put their finger on a specific reason why they were afraid that maybe they were concerned about having protection afterwards which the district judge rightfully said i can't provide them with that this was not intentional on the part of the district judge i'm not suggesting it all i'm saying is that that counsel needed to have that opportunity to be able to to articulate on behalf of their clients and so that we could get to the bottom of why was it that these jurors were upset what was causing because there was nothing that happened during the trial how they knew nothing about either of the defendants pasts your colleague suggests that whatever error there may have been is harmless because the instruction that was later given to the jury which was you're not in any danger everything safe whatever would have addressed all of those concerns i don't know if you want to respond to that i would love to respond to that and the and the problem is that it was a self fulfilling prophecy because the district judge in candidly did not answer when he had the individual interviews with the individual jurors did not address their questions for example never told one or the other jurors about whether their names would be appear on the transcript of the trial because that wouldn't jury selection and so they will candidly lulled into believing that the only thing they had to worry about was whether getting out of the courthouse and going to the parking lot and that was really all there was to it or that they had that whether they would have to sign their names and let me say this it i mean regardless of whether that may or may not have been trail right if the jury believed back then doesn't that resolve any concern about any prejudice to your client no not at all the why not well because we never understood the reason why the  jurors were were feeling threatened that was the reason for the hearing if there had been an individual voir dire with each of the jurors which would have been required under under the case law for the judge to do that then then the questioning of each of these jurors would have gotten to the bottom of it and if it was just some some wistful thought on behalf of all twelve which i candidly i would find difficult to believe  and also by the way the trial judge who's now a senior judge who's an excellent judge and who has been on the bench for a long time with a lot of experience as did the process where the prosecutor and defense nobody in their collective careers had ever seen a jury send out a note during deliberations saying that they were what's going to happen to us if we vote this guy guilty and just to be clear after the district judge instructed the