felony murder and when the court later instructed the jury this is what the court said in relation to that second element of on a deck where the cabin years thirty two inches above the ground level between that location and the look each of the shell casing there is a very large tree and the tree was a twenty two caliber rifle semiautomatic when he jacked the cartridge after was fired somewhere between twelve and five feet t inadvertently put there but there's no denying where the shell casing was found the government witnesses were asked to testify about various things and at least several of them put mr that's not the position the government took your honor they didn't take that position at trial and they haven't taken it in this appeal their position has been consistently mr colorado's non participant in the robbery burglary he was there and that was their position of the spec to their other so i think that to say in the context of this appeal now if they say it which i doubt they'll say that that somehow collar ruta was a participant in the virgin robbery so it didn't matter if the government characterized it in its answering brief statement which was never introduced into evidence that somehow i was precluded from making an argument other than that my own client shot mr lakshman because i knew of the statement my client in may which the government didn't choose to put into evidence in which he said that among other things the district court then didn't respond to that argument or that objection on that ground i didn't say that's true of his troubles then and why would the which was cited again yesterday on the man from the supreme court and what we have there's structural error of judgment closed the argument from being made instruct the jury in a fashion that is t an instruction on one of the elements and so we have a verdict that is not the verdict of the jury because the court has rendered part of the verdict by its instruction so we submit that even though we we will prevail a harmless error analysis is not i see the yellow light is gone so let me give well just one one on one reassurance here not only is the statement of your client not in the record of this trial and certainly was not before the jury the the assertion that you made in connection with the remainder waiver or whatever you call it from the juvenile court that is not part of this record either is  be viewed as being part of this record because i think when going to trial it occurred to me that we had a friendly issue on the juvenile transfer if you shall right and brought before judge gilmore in this trial that i proceeding dealing with the juvenile but your question is you know the government argued in its brief that nobody had telegraphed the fact that the defense of non showed colorado i believe to be a fairly specific worst lawyer in many material respects so a jury should have been given the opportunity to say wait a minute i don't buy she testified that he was part of the game i understand but then he testified that he was not part of the conspiracy no he never said that he never said he never said he never disassociated himself from the enterprise of either committing the virgin mary or the robbery she testified that he was not one of the people who went up on the porch but he never said that he was not part of the group nor did yeah i want to be specific all right you've now i want to hold you know if it was his testimony of that he was not part of any conspiracy or plan to rob or commit burglary i don't believe all right and i want to point out to the court that there was substantial evidence in the record undisputed that he was he participated in the burglary and robbery all the things that mr wolf tries to argue that says he was the he in fact he may have fired the shot and that therefore based upon your assertion here that the jury may have found that he was a pro conspirator in the plan live in the family and therefore this conviction can stand in the spite of your objection it is the government's objection and the court's instructions growth so in spite of their instruction and in spite of that objection we could reconcile ourselves to the fact that the jury found that in spite of that instruction the jury found that this particular individual witness for the long as a participant committed the shooting the defendants are guilty now have mr walk been able to make the argument one of three things would have happened under any scenario the result would have the same one they would have disregarded the argument and still believe that miguel was the shooter and convicted secondly they would have believed the argument and believe that tell the router was the shooter and convicted and third they may not have been able to decide either and one of them both of them a participant the same result would apply i think and i don't have the benefits of the actual reply brief but it seems to me from the argument made up be conclusive but there's an argument that he had withdrawn from the effort and therefore the shooter was not part of a group i think the fallacy with that argument is this obviously the evidence we put on was in the gal was in fact the shooter but if the jury believed the child really was the shooter they necessarily would have found that he was a participant because the jury was instructed that fleeing from an attempted robbery or connection with this group leaving the scene of the crime and the jury was instructed that leaving the scene of the crime a shooting in connection with that is part of the attempted robbery and burglary so if the jury had accepted mr wells argument and believed that caliber that indeed was the shooter our position would be that certainly the jury also all must have or necessarily would have concluded that he was a participant even though you could have to say that it has to be conclusive right but the defense was saying here they were deprived of the of the ability to make these aren't you and so everything else the speculative from that point i think that the question is is that what a reasonable jury faced with the evidence that they had had to just not need in the state without affected the outcome of the case and our position is that as the does not preclude a closing argument the way the jury would have had the case is ok maybe it was tell the root of who was the shooter now based upon the evidence the trial will that affected the outcome again i think the government's parsing out what the difference here is the is the same if they believe tell of what it was the shooter is certainly wouldn't believe given the context of the honor is beating and abetting the offense in other words she is a participant by virtue of his aiding and abetting the attempted burglary in the robbery in the sense that he's part of the gang he knows what they're going to go over to do  he gives them the instrument that they're going to use for the robbery in that context even with after shooting evidence i believe the jury would clearly have concluded that he was in for to something in the attempted burglary and robbery and that he had not withdrawn he fact went with them to the camp he stayed in close proximity to where they were and then after the victims came on the porch he fled with the gang and stayed with them after work  even the way let me address that there are the supreme court cases on this point are very clear that only a very limited class of errors that totally affect the fundamental nature of the trial are considered structur everything else errors which i would argue are analogous to the situation exclusion of evidence in a wrong yes conclusive presumption all of those errors are subject to the harmless error review and i think in this case  our argument is that this is no different than the exclusion of evidence say the defense wanted to put on evidence that trial who was the shooter and for some reason the court didn't let them put that evidence on the supreme court precedent that would be subject to harmless error review even though the result would be the same the dream would have that evidence before them they would not be able to consider the implications of that militants and yet the court would look at ok did the deprival did that er from this fact you must conclude and i think that the supreme court case was if somebody doesn't return their rental car within fourteen days you have to conclude conclusively presume they intended to steal  evade the court process and the defendant testified that he didn't show up because he was scared of being killed in jail and the judge instructed the jury one that's not a defense to intent to even the former hostages and true that the defendant had  the charge was kidnapping with intent to rob and the judge did three things in that case one it told the defense lawyers he could not argue that the defendant didn't have the intent to rob secondly he had a have made that finding in the face of what the judge said to them members of the jury there is no evidence that this man fired the shot right now you're saying that well if he fired the shot it still makes these two defense guilty if he was a member of the conspiracy participating in the families and therefore we have a guilty verdict which the jury could have found a say to found that this man fired the shot in spite of what this court told us right because i think the folks now were where is the jury verdict of guilty if that turns out to be or by chance is the fact that he fired the shot th miguel the shooter the only issue is what if fact what effect did the course bear in precluding argument have on the result and we state that the effect would not have affected the verdict because even if they would have found me was the shooter just the probabilities or possibilities of on somebody else and the only person on the scene if they had to exclude according to the court's instructions was paul really now if it is the truth that he fired the shot this verdict it's should be the jury and not the court and it's a little bit i think hard on the trial judge for the government to concede the trial court's error when it's the government itself that inflicted this error into the record they made the objection they requested the court to intervene at this point and now they say well it would have mattered anyway the argument was cut off and the judge gave the instruction and so the rest of the argument never could have here did not purports not framed as i'm not telling you ladies and gentlemen the jury what the elements are as a factual instruction as to what the evidence was it amounted to an instruction a second government's argument about the fact that the jury could have found that color who was the shooter anyway and reach this guilty verdict because the jury was instructed that there was no such evidence and why so