then your whenever you're ready would be glad to hear from you notice of an element of the crime in which he was charged is a position the petitioners position that the taking of conclusive judicial notice in his trial was tantamount to the judge directing the verdict on that element of the crime  court not finding this was an error was a structural error in fact was clearly contrary to or an unreasonable application of a stablish united states supreme court law and precedent that requires therefore hey vs corpus your honor and that is if we the sullivan case if we if we look at the case in this the the facts of this case and the error in this case it's so invaded the structure of this case that it had to apply structural error analysis what turkeys where when there's no jury verdict at all on an element of the crime that's not structural error that is what we believe there's some significant differences between this case and the neither case your honor and i'll be glad to  speak to those now but specifically the needer case had some very important differences one was the need or case to not take conclusive judicial notice even though it was similar and the judge  omitting the element but it did not direct the verdict in that case to the same in the same manner because under the federal rule you could not take conclusive judicial notice the federal rules written to avoid that constitutional error but second in ne case the wrong party is determining the verdict in that particular case and neither at the time the judge made that ruling it was believed to be or was the current law the judge wasn't acting improperly but would you still have as you phrase it the wrong person making the decision about the existence of an element without it that is true there are other factors in the distinguish this case from need or maybe in more important ways than that ok and if i can speak to those secondly that in neither the issue was not contested the materiality was the issue in need or the tax income of five million dollars whether that was a material amount or not the the the defendant that case didn't contest it didn't raise that didn't put in evidence didn't make argument that that was it was not material have i go to the question of well a lot of obvious error but how does that make it structural well it makes a structural because in this case in odom's case during the middle of the trial the defense was precluded from defending on an element of the crime that is during the state's case the judge cut off all discussion all evidence that the jury can't view any of the evidence can't consider any evidence nothing like that happened in need or nothing to that extent happened and neither the defense could have put in some kind of evidence could have argued that point to the judge and didn't do it in your case the neither case did not  involve an element of surprise as well this was there's a the additional element of yours well an element of surprise yes you're on that in this case the documents that were presented to the judge were not provided pretrial these were documents and one of the objections that was made by the council was that these were not provided to them were not were violation of roof and that there was a number of other objections that they raised as to why these were authenticated there was somebody there to present him and it wasn't proper under software aloft berths in these type of d m v records and this and the judge didn't present those into evidence the court the state said well we're not asking the judge to actually admit these into evidence we just want the judge to make a conclusive judicial finding as to this element that's different to the judge anita didn't preclude didn't stop the defense from arguing and from contesting some evidence that was coming in in preclude them from making evidence but at the point in this case in odom's case where the state was still making still presenting their evidence the judge ruled on one of the elements of that crime stopping all further evidence stopping the defense if they had evidence to to contest this element from presenting it stopping the defense in closing arguments from arguing it is structural not just because of the nature of the defect but also because the when it occurred in the case but when it was any argument of evidence presented to the trial judge to contest did and i would say i would argue he did in this case that they would not agree in fact the judge asked would you will you stipulate to the d age of the defendant and they said no that is not agreeing that is contesting an element when the state has the burden of no i did not i did not enter but that is contesting the element in a criminal trial all you have to do is say i'm not guilty and the state has to put forth the evidence the state didn't have to do that in this case they different from your just the way you're describing it because the jury in this case right was instructed he's old enough you cannot consider that whereas at least in meter although they were instructed on materiality if anyone thought it wasn't very important there was nothing stopping the jury from sort of giving voice to that beating that they want that's right i think that's significant you know that the judge actually said you shall not debate this issue i am not allowing you to set to consider this element and as you said the  court has said that evidence in neither was incontrovertibly and there's so much evidence in place that the that it was incontrovertibly and that's how this case differs from a lot of the presumption cases or the need a case is the court didn't and couldn't consider other evidence that might have led them to this conclusion because the judge precluded this a very unusual case in the judge actually telling the jury do not consider the evidence do not debate it do not take into account not to mention the the effect that that would have on the the confusion that could create to the jury that that could after the judge says i have no opinion on the fact at the beginning of the case the facts of the case of the beginning tells them that he is acting only as a referee and that they are the determiners of the facts and they will be the ones to find each fact to a reasonable degree or to  a reasonable doubt and then to turn around later in the trial and say i found a fact and you must accept it had to confuse a juror that was paying attention to what the judge had earlier told them and what the judge just said again in the jury instructions in contradiction to that it's a very unusual case i think a very narrow case in when it happened and exactly what the what was done by the judge you can't say that other facts were concluded by the jury that were acquittal and to the same fact that somehow by making other determinations that we know they made they would have made this this determination as well i think it's not there's really no way to say that and that is another distinguishing factor in the interrupt you just say that the trial attorney representing the defendant was buddies with the states offering the driver's license to prove the age of the prove is proven that it was not the driver's license this was dropped this was d m v records and what those d m v records are we do not have in the record as to what they are but there was no challenge there was a challenge there were challenges inaccuracy it was challenged that yes there was a challenge it may have been a general challenge that we don't know what if these are accurate and there are case law that says that this is what the council argued that says these type of records can be inaccurate but specifically a discussion about a direct i think they wouldn't because they didn't properly provide them i think that it was a rule five violation not disclose pretrial they knew they couldn't get in and they knew that they had not proven that element and so they were trying to find a backdoor way to do it i don't know that would be a single research that's correct on the criminal procedure rule requiring disclosure is a disclosure r did that is correct yes he did question the authenticity of it he questioned the correctness of it and he suggested that there were specific regulations that he could investigate and i think those are in the motion for a new trial that was presented that would  say that these particular types of records can't be put in or can't be used for this purpose the judge never let that that argument be heard at the point in trial the judge said that he was going to take up this argument later but very shortly after that without read addressing it the judge made the ruling and then instructed the jury instructed the jury in the middle of the trial and during the state's case instructed the jury not at the end he did it again at the end but he did it during the state's case so certainly that that point the issue was was determined for the defendant the defense did immediately object to the  request as was pointed out this the state said they were not seeking to introduce the evidence and that is from the state themselves that we're not trying to introduce it but we are asking the judge to conclusive judicial notice  structural error that infected the entire process that and that is really the point that the trial process became fundamentally unfair at the point that the judge made that ruling the interference into the province of the jury  deprive the defendant the basic protections for which criminal trial is provided to the accused that the wrong party determines the guilt and while we have the killer left i'm sorry your it follows sullivan that it is in a lot of ways the outlier the boundary of where you can find harmless error and but sullivan is still the rule that it follows and if that is the case this case clearly goes beyond meter and we believe would not be subject to harmless error analysis but if the court were to do that i would address that there really is no evidence in the record of age the state instructed the jury and is therefore objectively unreliable the judge's instructions would make odom many many years younger than forty at the time of trial even by the time of trial some five years later odom would have not reached forty years of age based on the age given by the judge if the chat evident is is not accurate as to age of odom which by any standard is not accurate and how can this court now look back and speculate as how the the jury would have used this untrue information untrue evidence in its analysis you have to ask yourself if the ages was at least seven years off the person is it age given is evidence that the person is over eighteen but it is actually wrong about seven years would have still been evidence of age if on the chats the defendant said he was twenty two he could have been fifteen or twenty nine if you use the age difference  not to mention the jury would likely be suspicious of an online adult chat room and there was some testimony from experts that people lie in these chat rooms there's also a statement th defendant was from colombia which he was not which was made in the chat room so it's highly suspect if you get into a harmless error analysis that you could rely on that evidence to say that they convince the jury beyond a reasonable doubt that he was evidence of what that would be we don't have any instance where the jury was instructed to look at him where he was actually actually testified at all and then i see that i'm out of time how old was the judge indicated he was born june twenty it please the court on behalf of respondent i'm caroline scranton from the south carolina attorney general's office and today i asked them to affirm the district court order denying habeas relief in this case and if i may i will jump to the question of why this the  the judicial notice in this case is not one that has been classified a structural air are united states supreme court jurisprudence there are six structural errors that are deemed to be to exist to recognize it to be recognized today is directly on point we believe in this case as to why the air and out of trial does not fall into one of those six the six have to do with the deprivation of the right to counsel  inability to represent yourself pro se if competent to do so having an impartial or biased trial judge having a defective reasonable doubt instruction which i believe would be the structural error that might hit closest to the air determined in this case by the south carolina supreme court the denial of the right to public trial is a remainder structural air as well as an unconstitutional make up of a jury and so jumping back to neither reasonable doubt instruction and the effect be reasonable doubt structure yes your honor he would say well they say this what would you characterize as with i believe from his argument that it would it would if the score to go it would have to somehow fall under that structural error category but i think that when you look he says that the structural or what would be how would he define the air so the south carolina supreme court found that the judicial notice in this case which was of a civil proceeding i believe so i went back to the winship case which discusses of course that that a defendant must be found guilty beyond a reasonable doubt of every element but jurisprudence has sense then evolved and now there are two lines of cases that go directly to what we have here which are missing struction or omitted elements from the substantive offense the discharge to the jury but we also have in our that had been robbed was federally insured the judge directed a verdict on that element and we said that structural or i am not familiar with the content of that particular is that johnson did you say the johnson that i read from the circuit was i believe a couple years later and it again was a miss and struction to the jury and harmless error was applied yes so this one was on of not or is obviously different facts but it was directed verdict and we put it under sullivan and we said that's structural error so for me the question in this case and i guess i'm just as you to jump ahead is is it so we would have to say that meter supersedes that it's clear enough it's so on point that we have to that we can kind of go past a circular story at this point yeah sure are i would agree and this is why so the supreme court decision out of south carolina does not discuss this but neither really hits exactly what happened in this case  meter it was the element of materiality now the jury first of all in need or was not instructed on the element of materiality as an element of the mail and bank fraud charges in the jury charge but before that they were also instructed in a different portion of the jury charge that materiality was not a question for them to decide i think the exact language for meter was that it was not a question before them and that charge really lines up with what occurred in this case in this case if you look at the jury charge when you look at the the part that's included in the second supplemental record on appeal here back in the appendix jury charge took place in two distinct segments in the first person first part of that jury charge you have the trial judge going through your general introductory charges and that is the portion where he included for the second time it's on page sixty four of the joint appendix that judicial notice has been taken of the defendants a birthday and then he gets to the end of that opening part of his jury charge and he offers to take a break he offers to you know what the birth date was he did tell them what the birth date was i mean seventy three nine hundred seventy three is the year the birth date is redacted in the appendix and then he offers to take a break and he breaks up his charge and he very clearly announces with the jury at that point ok i am now about to charge you on the substantive elements of the offense in this case and the substantive elements of criminal solicitation with a minor are and then he never instructs the jury that they must determine as an element of the offense that the defendant was eighteen years of age or older so under need or you have the essential withdrawal of an element of the offense from the jury's consideration yes you have that judicial notice of his birthday just like a yes you have the instruction that they need not consider materiality as a question of fact that that is not a question before them that we think is a kin to the judicial notice in this case and then as the second juncture there you have the withdrawal of that element of the fact finding of the of being over the age of eighteen again remember the state didn't have to prove exactly how old he was just that he was over the age of eighteen and so that is why we think that meter when it did find the sara harmless that nowhere in this appendix did the defendant or a trial at no point did he contest that he was not at least eighteen years of age and a big clue that i think that answers that question judge troxler is at e c f twenty two seven page fifteen which is part of the appendix in this case where trial counsel argued his directed verdict motion and when he argued that directed verdict motion he essentially entirely announce what his theory of the defense was at trial and his theory of what the defense was at trial was that when odom went into that chat room that oh how was odom to believe that because all the other people in that chat had to say that they were eighteen why was odom believe that the persona with which he was chatting was not actually also over the age of eighteen so he plays this fantasy defense but he plays it in the opposite way a trial as it is now kind of being applied in this particular appeal and so nowhere else in the trial record again to see the contest that he was at least eighteen years of age he refuses to stipulate to it right i mean this just seems like such a mess up if i'm understanding right the state it's violate some procedural rules so it can't get the records in a plan to prove it through these records and can't get them in and so the judge is like well can you just stipulate to his stipulating i mean why isn't that enough while they refuse to simulate to it but there was no way to get around the establishment of the educated fact of of the birth date there was no finding by the trial court i don't think the the brady or the discovery rule violation was suppressed a trial there was no finding that there was any type of misconduct in the way that the d m v records were being presented he did review refused to stipulate to the birthday but again his the way that he contested the judicial notice was on one the discovery violation to that you cannot judicially notice the birth date again because it would be tantamount shaking directed verdict and there was a third way that he contested it and for some reason that escapes me right at this moment but if you didn't have time to jump start say that he wanted to raise questions about the reliability of the yes your honor thank you the authenticity of the actual i understood the right reliability argument that kind of dovetail into the lack of authenticity the foundation was not laid for the authenticity of those d m v records the records keeper wasn't there they were just driv that's the extent to which i read that particular objection from the record and so again there's still no no presence in the record of of contesting that he was not at least eighteen years of age and so we believe that that lends to the reasonableness of the finding of harmless air by the state supreme court and again that would be under twenty to fifty for each one on hay vs review the harmless error application as a finding of fact which would be presumed correct unless rebutted by clear convincing evidence and so not only in state court did not present any evidence that he wasn't at least eighteen years of age but in this habeas proceeding we don't have anything in the state court record and we don't have anything additional by clear and convincing evidence that  application of harmless error or the fact finding that this error was harmless by the state supreme court under twenty two fifty four one and so i believe that if you want to i'm going i mean what makes it clear that this is a harmless so under twenty two fifty four d we're looking at the reasonableness of the state court decision and i totally understand ok standards of review but i'm just asking you how do we know it's harmless so the state's report applied meter they did not go in depth in their application of  and so we know on hey b s that even if the state court is wrong that doesn't mean that i'm just asking as a matter of common sense i assure you i understand i understand the standard or review what makes this harmless because it falls under the classes world what makes this less i mean i guess i'm just i don't i don't understand what's in the record about his age that would allow us to say this is a harmless error well let me say he was forty he did say he was forty in the chats and we do have the determination it is a factual determination that they listed out he was present in the courtroom he was actually present in front of the supreme court you do want to rely on what he must have looked like in the works in so far as that is what the south carolina supreme court already relied on and under twenty four not to be repetitive but we believe that's an adjudicated in adjudicated fact and that is a title to deference what the supreme court factually are a lot on which again was the chats and was present the supreme court didn't make any finding about what it looked like they did not do what this guy they did not describe a finding they merely mentioned but again we believe that under the reasonableness standard that there's nothing present in the record right now they would harm to right  conclusively of the fact that he must have looked kind of like this to courts well at least one court mentioned that that had been are a lot upon and that's that's what we i mean we don't have anything else in the record right so so we have to we have to look to for that  fact and again i would go back to in the harmless error term nation by this court we're looking at twenty four we're looking at the results of the state court decision and this court has not decided  case gives us some guidance on when the brecht and frys substantial injurious or actual prejudiced standard should be applied by the hague be a score it and davis gives us guidance and and kind of goes back to mitchell via spars of from two thousand and three that that says once you make that reasonableness determination you don't need to go any further and do that additional tests and of course fry tells us you don't have to apply both both terminations but i believe that  supplies if you have a reasonable mr terminations here and you don't need to take that extra step and do that injurious do you think that the question of whether assuming harmless error review applies is the question of whether it was properly applied in this case within our  certificate of ability i thought the only thing we certificate was limited to the question of whether a harmless review applies in the first place yes your honor that is how the certificate is  worded and we read it to be that limited question but of course address the entirety of the district court terminations would you say the harm the seal way is badly framed no your honor i said that it's limited to whether or not well that doesn't seem to be right we did read the certificate of a pill bill of the you're saying that we have to decide whether the harmless determination made by the south go out of supreme court was not reasonable under twenty two fifty four the certificate is in correctly framed as what my point is we did read it to be very broad but whether we have a that's the question we agreed to hear correct and we interpreted that in preparation as kind of a broad grant and so again we know that we're not here i'm certain i'm not faulting you prefer i'm just asking this question that just occurred to me which is i'm not sure this whole very interesting discussion about how well did he look in the the outcome of the district court order in this case which denies habeas relief we do think this clearly falls under meter in the structure of the air that occurred not that it was structural err but just in the way that it was a withdrawn element from the jury's consider and they said again that there is a very limited amount of structural errors and that this falls into the category of one of many errors that can be quantified against the remainder of the evidence and that's another reason that this error is not structural you can quantify  the conclusive age or at least meeting that threshold age of the defendant by the evidence that was presented at trial again it wasn't contested we have chats and it's ok under number of state jurisdictions to rely or to give credence to the jury's ability to view the defendant in the courtroom so long as that view is corroborated by other evidence and in this case we submit that the chats are what corroborate that evidence specifically and again i would point you to the directed verdict motion that was argued on page fifteen of e c f twenty two seven from the district court in this case as going to wards a clear description of what the defense was and the defense was not that the defendant was under eighteen the defense was that he didn't have a reason to believe that the person that he was talking to was not lying and so on that we ask that you affirm we don't believe that you need to appellee that he was not contesting this element is just not accurate the defendant contested every element in this case whether or not that was set forth in a particular argument it was his trial strategy to contest every element and they did that and i think for the court to suggest or for that to be suggested that he was not is to shift the burden to him that he has to put forth evidence to disprove a certain element all he has to do to contest the element is say i'm not guilty and the state has to then go through every single element and prove it he didn't have to offer any evidence of this all they had to do was be able to refute or shoot down or contest the evidence that was put in by the state if he could do that he would win the case he would be not guilty even if it was just this one element so to suggest that he was not contesting it i think is inaccurate the also the argument that that mr defense counsel made that the people lie in the chat room is somehow now being flipped because the argument made a trial was he didn't believe that the person who said they were under age was under age because everybody laws that's still consistent with the argument we're making today that everybody law is an adult chat rooms and that was the argument that was made you certainly don't take people at their word in adult chat room whether they're saying they're thirteen or whether they're saying they're forty and so i don't believe that that is a an argument that is contradictory at all and  we do believe and i just would reiterate with my last couple minutes that neither is very distinct from this case this was a contested element this was a error that  precluded argument precluded evidence it goes farther than eater did if this court were to say it was still subject to harmless error analysis which we believe it is not that this is a constitutional error that was structural nod the defend it mr odum a right to a jury trial on every element there are no unimportant elements of the trial or the of the crime charged and the state has the burden to prove them all there is a surprise element to this information being allowed in as well as in the neater case and in the other cases the element that was ultimately omitted was in did prove by incontrovertible evidence in the