consequences of the failure to object or raise an issue at trial on the question of whether jury instructions not objected to by the government become the baseline for measuring the sufficiency of the evidence at later stages in the case the critical point here that only the jury can determine that a defendant is guilty and if a jury does so under a particular framework it should be evaluated under that framework and if it cannot sustain that verdict on the reasons used in its own deliberations that verdict is not rational well the art there's no doubt in this case is there that the jury found beyond a reasonable doubt that the defendant had committed a crime set forth in the indictment your honor i think that is not entirely correct there is no doubt there was sufficient evidence that they could have done that whether they did that i think they had to find that plus something else isn't wasn't that so that the issue it was the a show if they came in and said both are true the first has to be has to have been true in the fifth circuit we pointed out that there was the potential for confusion in the w and could have been misread by them as or and they would not have necessarily had unanimity on each on which elements of the and added i didn't read that as being a part of your case here it is only so indirectly so we raise this as plain error and we lost that because we couldn't demonstrate prejudice because there was someone certainty our point in this court is that if the government wants to ignore or have a court disregard the instructions it would then be its burden to prove harmless and that same uncertainty about unanimity would then read down to our benefit of the order would have been accurate while the or would have been accurate but would have required them to unanimity instruction to be clear which of the oars they agreed on if  six thought it was exceeding and six thought it was an authorized that is it not a valid verdict and basis of the argument in this case i didn't think there was any argument that the government tried this case solely on the he encouraged others to exceed their authority i think that's how they argued the case that's how it was indicted so why isn't it harmless error because well because the evidence is not sufficient to actually support that conclusion the government certainly argued it's not sufficient to support the conclusion that he exceeded authority yes but it is more than sufficient i not the only theory they could have convicted on was that they that he had encouraged others to exceed their already no i disagree your honor we argue that what he encouraged others to do if one accepts all those factors true still would not constitute exceeding authority but i just mean i guess are you want to finish that i think the government's theory about what is and is not exceeding authority is somewhat confused in this case as it was confusing the presentation at the trial level and therefore it would have been clear that that evidence would have been sufficient to show the third conspiracy to exceed it doesn't seem clear to me that these two theories are actually separate cetera they're not necessarily all distinct and i don't really see a difference between making unauthorised access and exceeding authorized access let's take the first making an authorized access let's say somebody has access to some employee here in the building has access to lawful access proper access to some records at that employee at night sneaks into some other place in the building and starts looking through files that person is making an authorized access and in the other situation exceeding authorized access lets say a person doesn't have any any access to any files in the court but sneaks in and looks at those files that person had zero authorized access and therefore exceeded authorized access i just think these are it seems to me reading them there are two ways of saying the same thing so the issue that's presented here may not the issue that you've asked us to decide may not actually be presented by the facts of this case your art that question is actually not before this court the government does not dispute that exceeding an authorized are discreet and independent means of accomplishing a crime the ninth circuit has held that they are discrete even the fifth circuit agrees that there discrete it just disagrees as to what the content of those two separate elements are but for this court's purposes you need not ever go there we've invited that in a footnote in our brief you declined the invitation which is entirely your private of but that is an issue that will have to be brief i agree with you it is not the clearest of statutes but suffice it to say the way this case has been brought to this court it has assumed by the fifth circuit assumed by the government and i believe assume by the ninth circuit that they are discrete and independent elements that would be separately indistinctly proven if i could go back to your main argument you seem to be suggesting that the inquiry that we should be undertaking really focuses on this jury and this jury made its decision that i had thought that some of our prior cases in particular jackson suggests that that's not the correct and corey that the correct inquiry really is is as to a hypothetical gerry and the jury and so your focus on the way that these instructions might have affected this particular jury just really isn't the right one and along i partially agree with you it is not that we are asking what the individuals on the jury thought or what their literal thought process wasn't in the jury room but it is indeed could any jury in the position of this juror with the facts this jury receive with the instructions this jury received could possibly have come to this conclusion and i point is no rational jury facing the facts and instructions this jury faced could have convicted on the exceeding portion of the charge but they convicted on the first to be unanimous as to both no that is what our objection to the government's harmlessness argument comes down to which is the government cannot resolve the uncertainty in the jury room it isn't a harmlessness argument it's an argument that the jury was told you can convict if a plus b they came back and said beyond a reasonable doubt a plus b he's guilty and now you come and say well you know he really wasn't guilty on be there wasn't enough evidence that's ok he's still guilty on a lie i just don't see how you get around that i'll give you an example that may help clarify it in murder charges it is typically charged that one knowingly and intentionally killed a person if the government fails to prove intentionally but had sufficient evidence for knowingly you cannot support a murder conviction because they prove manslaughter unless it was specifically charged as a separate instruction to the jury you to find what was necessary there's no failure to find what was necessary here so your hypo doesn't work well the what was necessary sort of begs the question a bit on necessary to whom to the jury it was necessary to find both and they only  could have found one we do not concede that they did find one accurately because there was i don't know i could see that your argument right work in some cases of the jury was confused if this meant that it took their attention away from a critical e meet its burden of showing that didn't happen either that's the situation we're right in the middle where there is confusion neither side can sounds like what you're saying i don't understand  it's charge you have to find a and b therefore they must have found a way the indictment superseding indictment charged way the statute says a ok so we know they found now what's the problem or the problem seems to have been that they were also charged that they had to find be fine they made a mistake did you object no was it harmless it doesn't seem to me how how could it be harmful i mean i think your problem is the problem with the extra be in the jury instruction and so i would look to see what your objection to be did you object know that it must arguing that it is binding we are defending the jury instruction not rejecting it is the government seeking to reject a jury instruction and therefore we think it is incumbent upon the government if they want to analyze the verdict on grounds different than the instruction to prove that doing so is there anything but what but i don't see the theory of it the jury is instructed you he is guilty of murder if he killed someone and had and he was looking at the ceiling ok it doesn't make any sense look that was  so now you're saying if the judge makes a mistake there nobody objects he says the wrong thing and he was looking at the ceiling you have to let the guy go because although it didn't hurt anybody you know but no harm you still have to let him go and i'll just need to watch shirts over why i think comes from jackson versus virginia so let's say they said and he was it was not a case involving a journey instruction it was a case involving sufficiency of the evidence to show that the charge met the charge the evidence proved the crime and either the statute or the indictment but the reasons behind jackson explained that we are looking to whether or not the jury could have rationally reached that conclusion and the reason we do so is to enforce the presumption of innocence and to enforce the reasonable doubt instruction so if a jury instructed asli that the person needed to be wearing a green hat had zero evidence that that person was wearing a green hat yet found that they were wearing a green hat anyway there is a problem in that verdict and we know there's a problem in that verdict no rational jury could find that a fellow with a red hat was wearing a green hat my problem is that i don't know that it's rational to say that a jury and that sufficiency of the evidence has to do with what  charged as supposed what was charged to the jury as opposed to what was laid out in the statute and or in the indictment if it's sufficient under both what you're trying to say now is it may be sufficient under both your conceding it is your conceding it's a possibility that yuri found what was charged in the indictment but the government now has added an element to the crime absolutely so the fact that that you have any case where we think there's anything close to this court no have you have any case discussing sufficiency of the evidence where we look to the jury instruction as opposed to the statute and the indictment i'm not aware of one where that has come up however in the circuits every circuit to consider the issue as a general rule except this so called law of the case dr suppose that there's a there's a two count indictment and there's plenty of evidence to convict on count one and zero evidence not one scintilla of evidence on count two and the jury convicts on both counts so the defendant is intitled to a judgment of acquittal on count two but you seem to be saying in that situation the court would say this is a crazy jury this is an irrational jury because their verdict on count two is totally ridiculous and therefore the defendant is entitled to a judgment of acquittal on count one as well despite the fact that there's plenty of evidence on count one is that what you're saying not entirely it is certainly a reasonable conclusion from the implications of jackson versus virginia however what's different what's the difference between that and the argument you just made this court has treated separate counts as significant and distinct smiff case for example that the government sites and given that i'm not sure that's the right answer in an abstract term but given that i believe the same thing would be true where the jury made a terrible decision on one count except it will decision on another count that you wouldn't cross in fact from one count of the other i could see the argument perfectly well if this court were to go there that yes a jury that went that off the rails on one is questionable in everything it did and one might well question under the jackson rationale whether or not they properly applied the presumption of innocence and the reasonable doubt then that that's not that would be a revolutionary holding it would alter not asking this court to make i don't see a difference other than the purely formal difference between this that situation and what you're what you're arguing at some level there is a certain formality to it but that is smith and smith made that formal distinction i believe to the cabin of the implications of jackson and if at the end of the day jackson makes a good point but one doesn't want to extend it to its furthest logical reaches that's reasonable but within the count of course and what yes this case is even is even worse than the hypothetical that just alito posits in that in his hypothetical count two was a real count in this case the equivalent of count two in the hypothetical was not real it all it was they corrected the formal portion of the charge but all of the allegations the means the mechanisms of the conspiracy the particular facts charged as being the supporting acts all of that included continued to include exceeding just at the prior indictment had and so understandably or not there was some confusion both on the part of counsel i believe on the part of the court potentially on the part of the government that continue to argue exceeding even through its closing counsel i'd like to hear your argument on the statue limitations question at this point yes your honor on the statue of limitations both parties agree that it is inevitable that a court will review a forfeited limitations bar whether it comes of habeas or sooner is really the the point counsel cases is the better and more efficient way of doing that that that's that's that's a rule that will have application in the lot of other situations you're saying whenever an error can be raised not where we will lie why wouldn't i mean several reasons why doesn't it follow because that's your argument since it can be raised in a b s why not do it now because statutes of limitations can be distinguished from those other types of arguments the heaviest organ is really reason not to w but it can be cabined our point to the cabin to limitations issues for several reasons if you look at the heaviest cases we cited the tail end of our blue brief one it is taken for granted that the failure to raise the meritorious types of limitations argument is indeed ineffect assistance so you are mistaken saying in every statute of limitations case whatever statute of limitations in every defendant can raise it for the first time on appeal every yes though the theory under which that would happen might be different so in some instances it would be as a plain error question in other instances it might be on a stronger theory but yes that is basically our point with one exception actually on the defendant and not the burden of proof compliance with such a limitation on the government the shifting and burdens of proof in that case might be an exception to the general statement i gave just as complete and i'd like to get to the substance of your argument but as i understand your argument this wasn't a waiver which the court found below you're arguing it's a forfeiture correct forfeiture because it was unintentionally done correctly and so you are going under plane air plane or i saying when there's plane error when there isn't an intentional you don't disagree with the government that there are intentional waivers that you can't raise on appeal of the statute of limitations we've them here for purposes of our case we would be perfectly content to accept that some of our theories in fact would be broader this court need not reach those broader theories are active so let's assume this is underplaying era now let's go to what  made this plane ok we have a bunch of cases that say that this is a statute of limitations as opposed to a jurisdictional bar why would it be plain that this if you're under plan or one need not conclude it is jurisdictional one simply need conclude that the government has failed to bring the suit within the time required by a statute on its face the date of the indictment compared to the date of the alleged crime it's a very simple very plain it's more than five years the government may well have a defense relation back whatever their defenses and they can raise that but i'm sorry and i think i'm having a very hard time accepting that argument if we say that it wasn't plain that this was a claim processing i believe there are two separate lines of cases that are getting conflated plain error could involve any is simply the statute says you must bring it in five years they brought it in seven that's error we fail to raise it but that's the very purpose of the plan a rule is to make up for mistakes of counsel who fail to raise things they should otherwise have raised and so one gets to raise it as plain error that you're argument really does and this is true of all jurisdictional defenses but i think it's particularly problematic here which is encourages gamesmanship i mean if you have what you think is an arguable statute of limitations argument you know take your chance at trial and if you win fine but if you lose then raise this statute of limitations argument i guess what i would say is that no sane lawyer would do that because they subject themselves to claims of malpractise they subject themselves to the higher standards of playing a review i think of the day malpractise it sounds like a good practice to me for his client well being subject on appeal to the higher standards of plane air review was still a negative if they end up losing and there was some and i would think suggests that you really have to have language saying it is jurisdictional to overcome that presumption another way it's just a strong sounding statute of limitations wouldn't cut it according to  way i would read that i would read those cases as dealing with civil situations as opposed to criminal situations where the limitations period is generally thought of as a period of repose not as a substantive limit on the government's power and that's the to see case as well as bennett's which followed that  i would also point out that the clarity of congress is language goes to are you limiting the court as opposed to merely requiring bringing the claim within certain period of time but without specifying the consequence of failure here the language is so express directed to the court power and it does indeed specify the consequences of failure you may not try or punish any person but are you saying that leaving the job to different interpretive rule in the criminal context is that what i understood you to say i'm saying that you already that this court views criminal statutes of limitations more strictly if you use them as different from civil statutes of limitations that is viewed as a limit on the government's power rather than merely a limit on a litigant remedies and that's all right that's to say and i mr martinez mr chief justice and may it please the court petitioner is wrong that the sufficiency of the evidence must be measured against an extra element in an obviously erroneous jury instruction that rule is not consistent with the purpose of sufficiency review it challenge and it was obviously wrong to include the the exceeding authorized access component to the case at the jury instruction stage after the superseding indictment had already made clear that the case was about a conspiracy to commit unauthorized access and i think my friend on the other side pointed out that that petitioners counsel was confused as to what the case was about at that stage but if you look at what petitioner said the case was about when he was briefing this case in the fifth circuit he made very very clear that in petitioners view the government had abandoned the conspiracy to commit exceeding authorized access it abandoned that within superseding indictment it abandoned that by the fact that when we propose three different sets of jury instructions as to the conspiracy count the instructions that we proposed were limited to a conspiracy to commit an authorized access up to other counsel mr kendall during his oral argument in the fifth circuit  over and over again at the beginning of his argument in the middle of his argument at the end of his argument emphasized that the government had tried this case as a quote unauthorized access case from start to finish what  change was made at the last minute the parties had had a charging conference the day before when the erroneous language was not at issue petitioner had never asked for the exceeding authorized access language to be included in the instruction we had proposed three different sets of jury instructions that didn't include that language it was a mistake on our part and we suffer the consequences of the mistake in the sense that at that point the jury was charged incorrectly but if the jury had acquitted mr mustachioed based on its view that there was insufficient evidence with statute are discrete or not just different ways of describing the same thing we do think that they are discrete and we think that's consistent with our our sort of general reading of the statute and with the way the courts have have addressed it i think they're very closely related i think what we agree with what she said in his petition at page four which was that these are essentially two different ways of committing the same crime or suppose you had an indictment charging someone with exceeding authorized access and there was a factual dispute about let's say the date on which the employees employment and so therefore the date on which any authorized access that the employee had to records of the employer and you would say that if you did not succeed in proving beyond a reasonable doubt that as of the date when the access was obtained the employee had ceased to be employed at that employee would be entitled to a judgment of acquittal it seems rather odd  out i don't want to resist a broader reading of the statute but i would only say that that this statute defines the term exceeding authorized access in a way this is that page eleven a of our statutory appendix so the term that says the term exceeds  authorized access means to access a computer with authorisation and then to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain so if there were a circumstance in which there was no authorization in the first place to  access the computer i think we would be in trouble but we would of course have the other the other way of of proving that statute have been violated which was the unauthorized access charge and that's why in this case i think there was no dispute there was no confusion whatsoever that an author of a conspiracy to commit off an authorized access was alleged it was overwhelming evidence that petition has been challenged on that point and there were of course two substantive convictions the counts two and three of the indictment which had to do with with an authorized access couldn't or not be i understand your argument about in effect that this was a harmless error but something to page twenty of your brief you would like us to ride in an opinion on the very first line of the twenty even if a court should generally look to jury instructions when assessing the sufficiently of the evidence which they should not you want to write down and opinions seem to me that would surprise many many jackson case if you look at the footnote sixteen of jackson the court said that when conducting the sufficiency analysis that the analysis should be conducted with quote explicit reference to the substantive elements of the criminal offense as defined by state law that suggests that you wouldn't even look to the indictment that you would just look to the statute i think you would have to look to the statute but the indictment would tell you which statute is being is being charged well it's i'm frankly a style point rather than a substantive point but it does seem to me that we should not put that in the well i think that you shouldn't put that in the opinion i would i would agree on that with you on that because i think that i think that on our first argument what you should clarify and if you can apply the same rule centrally that the court is applied in the civil context when you've recognized that jury instructions and sufficiency review are centrally and on two different tracks and when the issue in the case is an instructional error then i think it's fair to look to what the parties said about the instructional boil just going back to this question of whether it's the statute or the indictment you think you just look to the indictment to tell you which statute to look to but if the indictment would let's say add an extra element that doesn't matter you should you should look to the statute and that's in the same way that you're suggesting here we shouldn't look to the instruction i think with the purpose of the indictment is to give the defendant notice of the crime with which he's charged but a lot of times as the court well knows the indictment is going to be a lengthy document that contains a lot of allegations a lot of different facts what this court has made clear is that just because the indictment says something happened at a certain time or in the narrative of description of the offense includes some information that doesn't mean that the government is required to prove everything that's identified there but i guess it is that's does seem a little bit troubling to me just because of the function of an indictment as providing notice that if the indictment gets the statute wrong that th e government should be stuck with that because that's what you know that's what the defendant now thinks is the charge i think that in a case like this it may be that in a different case where i would have to see the indictment that you're hypothesizing i just escaping but in a case like this where the indictment says this is the statutory offense and said and it and it identifies the statutory code provision and it says unauthorized access that makes clear that the conspiracy being alleged here is the think i think that's that's fairly well established that the government can charge in the conjunctive in that sense but i think what's important for this case is that the indictment in this case was very specific it changed from the original indictment which had the alleged the broader conspiracy to  both commit unauthorized access and to exceed authorized access and it went to a narrower conspiracy that just charge unauthorized access and that's why petitioners counsel said repeatedly in his briefs and at oral argument on appeal this was an unauthorized access case from start to finish you can you can imagine cases can't you where the instruction on an additional element could cause prejudice to the defendant i think one could imagine such a case and i think that the properly tried just for an example if the additional element would cause the reasonable jury to focus on particular evidence which include damning evidence that there are ones not highlighted in their discussion of this or chief justice i think in a case like that i think that the proper way to analyze that case would be the way you would analyze any case where the error is in instructional air and you would look to that and if you thought it was prejudicial you might remain the case or vacate the conviction but allow for a new trial but that's not what petitioner is asking for what he's asking for is an acquittal despite the fact that the jury found with respect to all of the actual evidence of the crime there was sufficient evidence as to those actual means and i think the other point to add is that this is not a case this particular case does not involve the kind of if you know the the only error here was the iranians jury instruction and if that jury instruction had any effect in this case it worked only to the benefit of the defendant i mean petitioner here really got a trial that was that was biased in his favor which is very unusual for  defendant and what he's trying to do is piggyback off of a trial that was biased in this favor and nonetheless you know sort of pivot piggyback on that error and get it get a an appeal that's ever been trying to break this down the exceeding authorized how would we look at the case that it's not a speedy and we know they had to have a and and b and if they were wrong be they still found think there's overwhelming evidence of both a and b but if you were to assume that there were not evidence of the extra of the extra element i think then the question would be whether there was some sort of unanimity instruction that would have been required to specify which particular theory  at's not this case and you know that the i didn't understand because i thought sure that that's true well i think and i think in this case because of the fact that a and b are two different ways of committing the same crime you would not need an unanimity instruction but i well in that case i think that that that would pose a harder questions for the government because there are think there would be some can there could potentially be confusion it is possible that the jury might have been convicted on a theory that's not legally viable  make clear that forfeiture in the context of jury instructions doesn't carry over into this efficiency context and i think the practical point is very significant here which is that his rule is only going to have an effect in cases where a jury has found the defend guilty as to all the actual elements of the crime where there's sufficient evidence as to all the actual it's of the crime and where there is no confusion and so we think this this is a rule that's designed to produce designed to produce  case where the instructions favored the government and the defendant didn't object is convicted then brings in sufficiency claim deal again say it really is measured as against the statute it has nothing to do with the instructions yes we think that if the if there had been an obvious clerical error in the defendant's favor and he had made all the right arguments at trial about sufficiency and we don't think that the the error in the on the instructional point would carry over into into this fish and see the evidence review so we have a neutral rule that really applies equally to both sides if there are no more questions as to the first question presented perhaps i can turn to the statute of limitations issue a sort of a threshold question and that your your friend sue says that he really doesn't have to demonstrate that the statute here is jurisdictional because even if it's not jurisdictional he wins anyway court my understanding of how i understand the arguments that he's making i think he's got basically three distinct arguments the first it's that is that it's jurisdictional which would mean that it's not wave a ball that the court always has a duty to to raise it at any time the second hour in which case respect to the jurisdictional point this court has said for over one hundred forty years that the statute of limitations as a matter of defense that the defendant has the burden of introducing into the case that's completely contradictory to the idea that the statue of limitations is jurisdictional which would mean that the government has that the the party invoking the jurisdiction of the court would have the burden of establishing compliance with the statue imitation deal with his argument that we should in the civil case we make a presumption  government i don't think i don't think you should have that presumption i think that that this court at the ship has already sailed to some extent because this court again for one hundred forty years from cook through bit injure to this court's decision and smith i just a few terms ago has special limitations is a matter of defense that has to be introduced into the case by the defended and i think if petitioners primary argument is jurisdictional argument work cept it that rule would go out the window and what would be required is that the government and the court would have to establish and raise the jurisdictional which would have to establish the statute of limitations was not violated in every case why shouldn't the rule in this context be the same as the rule for timely filing a federal habeas petition well i think that for for a couple reasons the most important of which is that rule fifty to be governed this case where it will fifty two b does not directly govern the filing of a petition and so rule fifty to be makes clear that the the exclusive means by which a criminal defendant can obtain appellate review of a claim to error where they didn't object below is by satisfying the four pronk a lot of standard and in the context that will doesn't apply if you look at the court's analysis in one of the heaviest cases which was drawn on by the other day versus mcdonough case the court emphasized that it's holding was valid there at because in part there was no rule to the contrary here you have it a rule to the contr i think the second point that can be made on those on that on this front is that the heaviest context is special and i think the court's decisions in both day and in would versus miliard really emphasize that which driving those cases is a desire to have a rule that takes account of behavior as context the desire to have fun and finality with respect to criminal convictions and the desire to harmonize the rule that applies to statute of limitations with the rules that apply to other threshold barriers to if you think that the state's interest maybe its context informality and comedy is stronger than the defendant's interest in a direct criminal appeal in requiring that the charge be filed on time or what's at stake is a criminal conviction i think that i think that criminal defendants are obviously going to have an interest in raising arguments that they think are meritorious when they didn't raise it below i do think that there's a very significant legal difference in that those types of policy concerns don't really are not really applicable in when you're talking about a direct appeal because rule fifty two b sort of blocks that and i also think that the reasoning of cases like day and wo really does turn on the fact that you had a statute of limitations rule and you had a bunch of other rules governing sort of threshold barriers to hay vs relief rules about procedural default was about exhaustion was about retroactivity and what the court said in both those cases is that it's trying to harmonize those rules and the court of just take a situation where under the hay be a school it would be proper for the district court to raise the statute of limitations defense on its own motion why would that not fit within the plain arrow wall i think that that for it to fit within the playing a role and so we would be shifting i think to rule fifty two b you would defend it would need to show that there is both an error and that the error is obvious as justice scalia was hinting at perhaps with this question earlier we don't think there's an error here the statue limitations is an affirmative defense and therefore the burden is on the defendant to raise that issue in the cook case the court made clear that if there's an indictment that alleges a quote a crime that's outside the statute of limitations that indictment is nonetheless not necessarily or inherently flawed unless the statute of limitations defense is raised and subsequently litigat it's still in all doesn't make any sense to say we're going to let him off on the because of inadequate assistance of counsel who failed to raise the statute of limitations and yet he cannot raise that point on appeal i direct appeal make them go through why why make a society incur more expense make him probably languish in jail when he's going to going to get out on  not decide that statute of limitations thing in the direct appeal well i think i think bear in mind i dissented in both day so as i recall your honor i think i think there's a there's a couple of reasons the strongest is that the difference in the hay vs context is that the record can be developed when you're looking at a case on rule fifty two b this court has always treated review under fifty two b as being limited to the existing record whereas in a b s case the record can be developed and it's very important in two fundamental ways first it's important to know why the defense was not raised by the defendant at the appropriate time there the defendant's going to have including in this case could have a very strategic reason for not raising the defense during the trial and i get into that in this particular case with the court's interested in the second  so that's one reason why it's important have a record and the second reason is the government has to have the ability to introduce evidence if it wants to to rebut or stablish compliance with the statute of limitations defense that's what this court said in cook in cook the whole point the case was that it's unfair to to allow for a indictment to be dismissed on a demur because that would deprive the government of its right to reply and give evidence to establish compliance with the statute of limitations went to the defense is raised so on  you the record would be frozen and you wouldn't be able to look outside the record whereas on hay b s you would be able to look outside the record and edition i think it's very important to to sort of look at the theoretical basis for the error and recognize that it doesn't satisfy rule fifty two b in the way that that rule has is traditionally been thought about first of all will fifty two b is generally about things that the trial judge is supposed to notice on his own and what this court has said about stature limitations including in the day case is that the trial court doesn't have an obligation to serve as the co counsel or the paralegal for the defendant doesn't have an obligation to go searching through the record and finding potential  defenses for the defendant rather that's something that the defendant himself has an obligation to do the court of appeals in in a direct appeal sees that the statue of limitations for a particular offense is six look at this it looks like it's too late do you have any explanation for this and the government says well well those who can't think of anything you have to wait until he has to correct them i think that the the better way is to wait until h to correct that and the reason for that is that route fifty two b is limited to the existing record and as your honor you made clear in your hypothetical the only way you can figure out that there's an error in that case is by looking outside of the existing record and asking the government well what's your explanation what evidence do you have what would you have done differently if this had been raised before well that might be true sometimes but it doesn't seem as though that's the ordinary case i mean why would you have you could you can make an exception for cases in which that really the government has is able to come in and say we really need to develop the record but where that's not true why wouldn't you decide this is quickly as you could i think i appreciate the sort of practical concern embedded in that question i think as a formal matter you would still need to be looking outside the record high formal i mean we've been through this many times it comes up in all kinds of instances people are always alleging not always but often allege that their counsel was inadequate sometimes it would be possible to know that on direct appeal but in the mine run of case you want to find out from the counsel why he did it and therefore i think every circuit i don't know what this court has said has said that you c claims in collateral proceedings and if we start making exceptions from that you're going to get a jurisprudence of when the exception comes up i think when it does and how clear does it have to be and then we'll just add further because i guess of our record of appeals judge and i saw some obvious mistake i would say go file it tomorrow right and i think that's the better way to handle this because the alternative is to to because we see some cases that look like they'd be pretty easy to decide is to say well let's let's a road what would otherwise be pretty hard and fast rules about how to fifty to be supposed to operate again we don't think there's an error under rule fifty two b because this isn't something the trial judge is supposed to figure out on its own we don't think that an error is plain on the record because the record itself is not sufficient in and of itself to show that there is an error and so we think that if you have a rule that says sometimes you should bring it in play in error sometimes you should bring it in hey b s it's going to create a lot of confusion both for courts and for litigants you're going to be litigat i think that's very very likely that the trial court might do that we would think that because there are sometimes strategic reasons for not raising the defense you know that the trial judge should do it in a way that it does and interfere with those strategic concerns we don't think that there's a problem if the judge does it that way but we certainly don't think there's an obligation and we don't think it's an error if the judge doesn't do that what type of strategic reason are you talking about well i think there could be a couple of them in this case for example the original indictment was undoubtedly filed within the limitations period now that indictment was superseded but if the defendant had raised in a pretrial motion a motion saying you know that the superseded indictments out of time because it doesn't relate back and he had won the effect of that would have been just to resurrect the original indictment which never been dismissed and so if he had actually raised this before trial and he had succeeded on the statue limitations challenge to the superseding indictment we would've just been back in  world where the original indictment applied and as the court has noted your original indictment was somewhat broader than than the superseding indictment and so that might have been a good reason in another case there may be certain circumstances in which a defendant statute of limitations defense will be in contradiction to his defense of innocence you know it's one thing to say i was in hawaii when the crime was committed and it's another thing to say i committed the crime on january first and not on you know march fifteenth and so they're made you know the defendant might look at those arguments and decide he's going to pick the stronger horse and he might side he doesn't want to raise the stature limitations defense so that really is for me your position on the three argument see me sure i know the cases because those are really about the context he makes another argument about when we don't think when is a kind of all season pass for ignoring rule fifty two b and then finally with respect to in error we think there are two overriding arguments the first one is that we don't think there's an error here for there to be an error we think the statue limitations would need to be something that the trial court is supposed to have an obligation to sort out we don't think the trial court has that obligation because this court's cases say that that the statue limitations is an affirmative defense that has to be raised by the defendant even if you disagree with us on that we think that cook makes clear that whenever a statute of limitations defense is raised in a case the government has to have the opportunity to reply and give evidence and what that means is that if the defense is not raised that government has not even had the opportunity to explain what evidence it would have brought in with that means is that the record as it stands the existing record is not sufficient to diagnose an error because you would have to essentially figure out well could the government responded you know would they have argued that there was tolling of the statue limitations would they have introduced a different set of evidence he would have to essentially reimagine how the trial would have gone if the defense had been raised at the appropriate time and if you're trying to reimagine that that's another way of saying the error is not playing on the so what would you argue if this was brought up on this and he's assume counsel comes in and says i just didn't know this in this particular case  very clear in the evidence was super clear that this was past the statute of limitations so i don't want to get into the i think i think in some cases i think it would be fair for the parties to litigate why the defense wasn't raised so if there it looked like there may have been a strategic reason such as there may have been in this case then the parties can litigate that i think as well if there were if there were no dispute about the merits then i think that would be a case in which relief may well be appropriate if the party if the defendant could establish on the issue of whether or not the jury instructions are binding several points first of all the confusion persists to this day just as justice alito is pointing out that it's very difficult to see the difference between an authorized and exceedingly for his access that too would have infected the jury we could not prove it sufficiently to show prejudice but they cannot prove it's officially to show harmlessness or inevitability of a conviction had you not so instructed them second of all i believe that jackson vs virginia talks from a jury perspective the issue is not the statute the issue is whether a rational jury could have done what they did and that only works if you look at the instructions it does not work if you look at some hypothetical statute that they didn't think they were applying they thought they were doing something different serve their objection that we acknowledged that this was only about an authorized access is curious because he cite the appellate stuff where there was new counsel yet his own side's briefs at the trial level recognize that trial counsel was confused yes after that confusion was resolved both verdict we argued ok the government abandon it that's fine we have truly argued that but at trial the harm was already done they're confused themselves they confuse the jury and apparently confuse the judge third seems to me that the phrase an authorized access is not actually even in the statute which just goes to my point that there would be confusion as to access without authorization and access exceeding authorization both could have theoretically been part of the  that neither would be authorized there that's moving on well i guess the last thing i'd say is every court to consider the question if this had been in the original indictment where it also said and and in the jury instructions every court to consider this issue including the fifth circuit below including the first circuit would have held the government to it i don't think the government denies that they just say if it's in the indictment alone they can do either or but if it's in the indictment and in the instructions they can see that the so called law of case is binding unfortunately didn't come up with that the government we both agree that it's not an accurate descriptor it's just a phrase it's been used in all the cases at the end of the day of issue as are the instructions binding sufficiency stage whatever court you're in that's really the issue the law of the case cases don't really apply because there are misnamed statue limitations what i say is this there is error when something is contrary to law whether or not it was the judge's obligation to raise that the a pretty the post appointee cases are the best examples of this the judges applying preprinted law did not make a mistake were not expected to anticipate a pretty good on appeal those cases were considered erroneous because this court adopted a pretty again it's not about whether you made an objection or whether the courts of thought of it themselves it is not an affirmative defense one has to plead one but the government has to actually prove that they satisfy it it is a hybrid kind of creature and cook in those cases deal with pleading because they want to the government have the opportunity to respond we do not disagree the government should have the opportunity to respond and in the first circuit the seventh circuit in the sixth circuit if there is some need for evidence sharee submissions they just we may end it get it done more quickly with the court that actually heard the case which makes a lot more sense than waiting f havior thank you counsel the case is submitted