and twenty eight western missouri united states versus thompson was found guilty after a trial after a suppression hearing that multiple motions for judgment of acquittal and independency of their case we also got instruction from the supreme court in a relief st united states by default is nine hundred and twenty four it i don't say i am not so i'm saying that i'm saying that's the way i read it ok and the penalty provision doesn't have to be charged in the indictment that's right and maybe also not in twenty four eat so you're here you're either or argument is to me squelched if you will by that by that st sentence and i'm twenty wiped out and you can include the service engine and indictment the government explains it gives notice of our our sensing intention at the earliest possible time that's a pretty was is it doesn't i don't think in six cities and i will i will base this this is not based on supreme court precedent that's out there right now i believe there is another case out of opening the front door you've got some as i would call curtains or so moving around you get a confusing answer about whether someone else is in there i mean it's more than just counsel it's agreed just a suspicion that someone else is in the house  i would agree that there are other the other factors that i mean there was that issue of the dog and the other person in the in the entry but it also goes back to what's the officers intent and purpose in their reason for being there was he's under arrest there are investigations included but because in the manner that they did approach this situation they were going to search the house regardless because they're using a tactical team and there wasn't evidence prior prior to this that mr in conducting the search from the very beginning they did there was no intent to knock on the door announce their arrival at arrest or what their operation was to do is we're going to set up on this house we're going to call a taxi myth and the tactics response is always to enter the house and search and they approach this situation if sue meaning presuming it's all there are and i think that the those those tactics you know they implicate the  th amendment because as we were going forth with these exceptions officers are trained on these exclusions and these exclusions are based on good faith and i think it goes to whether they have good faith if they're going to set up to push something to an exception so they can utilize an exception the th amendment rule when there are other good faith options available and it becomes procedurally the officers are conducting these operation was found at one location and the drugs were found in another location spread out through a car they were separated by distance whether someone possessed drugs and one time in at one location is and that lee the court david wagner of the united states i want to start by talking about this armed career criminal aspect of the indictment in that trial and i'd like to begin by clarifying what's actually a two in fact if you look at age eleven a very silly says mr thompson disputes that the indictment was defective and it serves only that additional elements necessary to prove his guilt were never presented at trial so this is not a challenge to the indictment rather this is a challenge to assuming the indictment is sufficient which he doesn't to you what did the government need to have a trial and the st point in his brief is that the government needed to prove to the jury at trial that mr thompson had three criminal answer is emphatically no and we've cited cases from this court that all of that beyond any heard venture and one thing i would like to note just because i don't want to mislead the court in any way is that the government's  a case called united states versus strong on page thirty that was a case where the opinion indicated that the indictment cited nine hundred and forty as mr thompson said actually in preparing for argument went back and told the actual indictment from that case and it did not cite nine hundred and forty so i apologize for not doing that earlier i just wanted to clarify that for the court arbor we also cite united states versus daniel all the indictment from that case did cite nine hundred and forty in this court held as it should be or that the statute i completely agree with your analysis judge logan i there's no case holding that the government needs to cite that and all the provision in the indictment and in fact i would direct the court to the recent decision in the united states versus caudle we cited that case in the government cited a case in our twenty eight day letter to the court last week in that case the indictment only cited nine hundred and twenty two g want that's the that's the that's the conduct the prohibited conduct part of the statute in this court found following rate that was deficient there's no reason to take any other position here i'd also point out that this notion that the jury should find ready to defend is you know at the time you presented the guns that he had been convicted of a crime that was punishable by imprisonment for term greater than one year it was unclear to me how this issue was being presented whether it was being presented as a challenge to efficiency of the evidence to the suspicions you the indictment or to the jury instructions on appeal but at bottom it doesn't matter because it was not preserved below so regardless of how it's presented to the court it's review and there's no conceivable plane error in that case because there is no reasonable probability that mr thompson's trial would have ended any differently if the indictment had charged him with knowledge if the jury had been instructed to find his knowledge  r the evidence was deficient to show knowledge this court held a win recently that if a defendant enters into an old key stipulation stipulating d that he's been convicted of a crime citing a prior case i didn't go and read the ones you cited but what we have repeatedly said we don't have to decide that it's a legitimate question but it's old well i would encourage you to read united states versus owen because i do some decisions from this court that is that it's not necessary to reach that question in iowa and i believe the court did reach that question in again gilmore so i would point the court to those cases but in any event the court doesn't have to deal with that issue in this case either because the evidence at trial showed unequivocally that mr thompson knew he was a felon in this case you don't even have to look beyond the trial record to see that he knew he was a felon the trial record shows that after he was involved in the shoot out interview on march th he admitted helping richards high guns in the attic but he incredibly complained that he possessed only one of those guns so even if his court doesn't want to grapple with the issue of whether distinction between deciding that the court doesn't need to decide an issue in a case and then deciding it another there's no conflict between those two cases in this case this would not be the appropriate case to take on because there d is so much evidence at the trial if if there were an opportunity to take that issue on bank i would just suggest that this is not the case to do that it shouldn't bear on the outcome of this case unless of course has questions about the rate i would like to turn to th is that consent to after the fact consent truly an alternative ground or don't you have to win that sweet point we certainly have not argued that it's an alternate ground and the reason is that the record doesn't it doesn't bargain to like an alternative grounds present it's presented like an alternative grounds well the reason we haven't argued it directly that alternate ground is because we don't have proof from the record as it and that the officers would have gone back in to search the house with consent if they hadn't st found the gun during that week and i think that is that is the element that  prevented us or at least in my view prevented made it more difficult to make an inevitable discovery type argument because there minutes and there was there's nothing to suggest that it was longer than necessary as far as removing thompson from the property no none of the courts opinions of how that officer asked to immediately rush away from the property and in fact in the case in the ol atory case which is discussed at length in the briefs this court noted that the officers could do the search because they were dealing both with the defendant in that case and his girlfriend outside the house and that's very similar to this case because the officers were were processing thompson after after his arrest and they were also dealing with richardson talking to richard and there's no need for officers in that sort of situation with all the fact that they had heightening their suspicion of what could have been going on in that house that there's a had been banging on the door and the thing to sound for a firearm in the attic could easily assault the officers as they were doing their carrying out their responsibilities in the front yard now be happy to provide that exhibit is a court  after the argument but even even aside from what the officers encountered at the house remember they were going to arrest them for the crime of robbery that is a violent crime that ager's crime and they could reasonably expect that that there could be some danger to their safety they also knew that he was suspected in a burglary involving the burgling of multiple firearms so they had reason to believe there could be firearms in the case so the precautions that they thought were entirely reasonable as they approached out and just going back to your question something triggered the judge for us as as they were as they were leaving out one other reason that is it off there should not be required to we away from this situation before taking precautions to make sure there was no threat in the house  i don't know that is the clear air question your honor so much as to what evidence the court should have considered so i think it's more it's almost more of an abuse of discretion in that sense whether the court should have relied on hearsay once one if once the hearsay is credited if it's credited i would not dispute that it was not clearly erroneous for the court to find a reasonable expectation of privacy it's that st step it's crediting that unreliable hearsay evidence that the government maintains was was a mistake that the were tuned to the fact that mr thompson was possibly a suspect in a burglary that means that they believe that there might be evidence of another crime in there and that put them on notice chance we there but i don't know that it's a heightened concern if they believe a burglary that occurred six months prior there would be evidence of doing that in this crime and that was reasonable that's something you bring to a judge to get a warrant specially in a  burglary and that was always in their mind from the very beginning and i think that goes back to the good faith if the officers believe there's evidence and then they think it's reasonable so why not bring that to a judge rather than utilize expectation of privacy the fact was the tip that the officers were acting on was that mr thompson was no overnight guests it's undisputed because the tip got called in that he spend the night there  in all the hearsay evidence about mr richards or the hearsay evidence is if the officers are basing their action on the tip that goes to show that mr thompson did have a reasonable expectation of privacy in the area that he was  a protective sweep is a protective suite and obviously the officers are going to enter in every place but the testimony is they had to bring a ladder out they had to climb up into the attic and that under underlines this was not  protective suit this was a search they were searching for extra evidence of a burglary they weren't searching for evidence of people attic access that they're speaking of the officers never pointed to a that they heard or saw evident that someone was in the attic what they point to was there was a delay and the other testimony is there was a dog a large dog and that actually that dog played a specific role that the officers thompson's opinion if they're doing a protective sweep and they're going through all of these machinations and climbing ladders and getting into the mix and crazies they're not looking for a person they're looking for a search and i see that my time is up and i thank you guys for the