the record does not support a contrary finding with this court's permission i'd like to focus on the jury trial waiver issue mr l terms jury trial waiver was not knowing voluntary or intelligent well either he had not written fact that you're now alleging when he accepted the waiver well your honor i think that's the wrong encourage think the question is whether or not the waiver was in fact knowing voluntary and intelligent not what the district court was aware on and not that's part of our fact no one is that because that record had nothing in the record to allow any type of analysis or inference that was why the court in cochrane suggested that he be as was the proper vehicle and that's similar to all the other cases that the district court relied upon a zero cochran goodwin in the court also referenced or take a card out in a zone cochran and good when there were no additional facts in the record bearing upon whether the written waiver was knowing voluntary and intelligent setting back for one second is that at a moment at a minimum in this case there is evidence in the record and refuted evidence in the record that mr ellsworth abs jury trial waiver was not knowing voluntary and intelligent and those are the declarations and so true i'm stuck here for a moment counsel i'm really curious why none of that was objected to at the time the waiver was accepted it wasn't so many months after as i understand it that the issue was st raising to tell us how long ago how long between the time the judge accepted the waiver and the time it was challenged i don't know precisely your honor but it was a matter of this direct appeal the issue is that there is record and there's evidence in the record that mr alter ups waiver was not known voluntary and intelligent in this in the district court in this court have the ability to review this on direct appeal for performing reason essentially have to say that that doesn't meet the requirements of federal rules of criminal procedure twenty three dollars right because there are things that were submitted later i don't think that's how the court would need to get there i think the proper vehicle is was whether it was valid in that moment i think that's a separate and crew from whether the district court was on notice in that moment that there was a deeper inquiry required intelligence or the st that i don't believe there was anything in dr murray that oh i heard you just say it's based on facts that came later what are the facts that just reported had that day that required a deeper and i don't believe the district court had any facts that day that required deeper angry and was in was mr alltop was in the courtroom at the time and specifically agreed that he had waived you didn't read it correct your honor he did specifically agree that he had waived however there was no increase as to whether he over and over again for decades that a deeper anchoring would be prudent for district courts to undertake this court has never gone as far as to make that a requirement however your honor it seems as though some of the court's questions  idea that this came later and that is something that the district court would be free to evaluate in a credibility finding what we think is necessary at a minimum is that this court freemantle to the district court so that the district court can consider the record more fully can and should have undertaken and what we're asking this court to at least three man for the district court to do is to evaluate that evidence is to take testimony hold hearings make a credibility finding about those declarations and  that this came up after the fact and that is somehow negates its credibility that certainly is something that the court can consider in its credibility determination and in its findings we would disagree that there was any type of gamesmanship at play but that is something that the district court could have consider and there are no negative credibility findings in the record before this court counsel you suggested that we my to take into consideration in effect of assistance at this in this proceeding but did you raise that where there where the record below supports the district court evaluating those claims they can in fact be evaluated below that there is no you pursuing that argument or are you going up commenting no your honor i was suggesting that this is my not pursuing this  and further on this issue if the suggestion is that i believe such callahan raised earlier that it should be that we should raise these claims in a twenty dollars to fifty five dollars i would just note two additional facts which is that the government itself suggests that the appropriate remedy for the district court's decision to not consider the supplemental evidence would be remain for further potential consideration and that's what the government's brief on page forty one dollars and it's but no seven and i would also trial waiver was not knowing voluntary and intelligent at a minimum it should send back to the district courts that the district court here take evidence and can determine the validity of those declarations and make a factual finding for this court to further review if this is remanded and excuse me if this is denied and we're told to proceed behave yes that will also have presidential impact on the child's right and because the record is fully developed at this juncture and was before the district or the district court could have and should have address declarations and allowed factual findings that would no more all formal inquiry was necessary and that's right because to the written jury trial waiver complied with rule twenty three dollars defendant was represented by counsel the government consented and the court accepted to answer one of your honors questions nearly evidence was relevant and had probative value under four p as to motive intent and knowledge that absent a limiting instruction that this evidence may have some prejudice it was only after defendant way the jury trial the court issue we think that it was a profile evidence in this the testimony didn't go to the ultimate issue so we have testimony about the structure of the hell's angels this wasn't testimony and that defendant  engaged in the drug transactions and gun gun charge because he was a hells angels number and said it was because of the structure of the hell's angels and their roles likewise in the nose you would be some are so see it in a partner in a l besides that a prostitute get help from a full fledged member furthermore there's evidence that the expert testified the prospects don't always follow the rules that follows common sense not everyone in an organization always follows the rules  testify that a prospect might not tell the full member and give him this activity himself and there's a punishment for that which could involve cleaning up at a party or something to more severe and that punishment presupposes that the hells angels prospect got caught distribute didn't go to the defendant's actual knowledge and he also testified that the gun was not used for hunting was likely not used for sport and was likely not used for collection and therefore the other category was likely the possession in this instance based with the district court's order denying the new motion for know whether the hells angels patch member would know whether there were drugs the specific amount of drugs involved and that they would bring a gun in furtherance of that deal number two the mr ultra is a hells angels or patch member ergo number three that mr alter a knew whether there were drugs specific amount type of quantity of drugs and that he brought that gun in furtherance and this is just like wells and the case with overwhelming circumstantial evidence where the government used a doctor to create a profile of someone who would commit a workplace murder and then invited the fact finder to convict because wells fit that profile as the great trial was that a jury trial it was your honor i struggle with the fact that  court said quote deputy whole testified regarding the commonality for hols angels full patch members to accompany prospective members to service protection supervised total action to this evidence of defendants and henson's unequal relationship in the hells angels indicates that henson would not have acted without the defendant's knowledge the record here really does speak for itself the government acknowledged that it needed the experts to create a profile from which they could establish knowledge of the gun knowledge of the dr goes to whether your client and say oh i just happened to be in the parking lot and i just happened to have a gun yes your honor except as ever the government never purported to introduce this evidence for background or for investigative purposes i direct and direct the court to various places in the record where the government conceded that this information and that this expert testimony was used exclusively for knowledge that's an e r ninety the government's motion in limine name where they said that they intend to introduce evidence of