two of the playing air reviews gender have been met in a situation like this when the element is missing from the indictment that's an error on and it's clear and obvious and so today we're looking at prongs three dollars and four dollars under a law now playing error tast and the st question obviously is whether the omission of the element had an effect on the proceedings and in this case the proceedings were a trial and because there was no allegation of the element the drew was not instructed to find the element it obviously had been a fact and the question is whether the evidence was so overwhelming that this court can say that there was no a fact on the outcome of the case and although in this case there was some evidence from which a jury could theoretically make an there was a slightly unusual stipulation on that during a probably two year period of time mr johnson was in custody on that as the court knows you could be in custody for many reason this court follows the proposition laid out in johnson by this court on that on playing air review the court is free to go outside the record to look at  evidence that the government could have interviews at trial and then yes obviously my client has an extensive criminal history and the government would have had more than sufficient evidence if they had introduced evidence stipulation was to avoid that very problem of the defendant's prior felony convictions coming into evidence and we will have to see how that all plays out obviously defense counsel will not want an overwhelming show of prior violent and troubling activity to come before the jury when it's a single issue and the government will want sufficient evidence to demonstrate that yes precisely who's going to use i don't know if it's precisely this case but i think it does call into question this court's prior decision in johnston and as have other circuits and so now we the outside evidence no your honor because at the time i don't think any of us thought that the court would go to outside evidence that happened later johnson him out later in the briefing no i mean the this case stands in a somewhat different situation than some of the other cases where courts have ruled that and how the fact that the element was not charged by the grand jury is not a problem because somehow that can be waived or it can be simulated to this was a trial it wasn't a guilty plea and so mr valentino did nothing to say that he was waiving his right to be charged by a grand jury all the elements of the offense and in that situation we do have a serious question about the integrity of the proceedings and the integrity of the just will process if we allow people to stand convicted based on elements that we are finding with evidence not presented to a jury of an element not returned by the grand jury and if we allow that to happen we really are just convicting people based on judicial fact finding and not based on a grand jury and  on the other piece was a trial stipulation that was rather d d l and had one ease on this that he was deeply leading to the fact that he had been on in custody that was the phrase in the stipulation that he had been in custody for period of approximately two years but it did not save for what purpose he'd been in custody as the dr friends that he has been in has to be from a felony conviction and use that might be a bridge too far based on that problem for the government thank you your honor and good morning daniel khalifa about the united states may please the court we asked the court to affirm this conviction the supreme court's decision in united states vs cotton is squarely on point with the two primary issues that are raised in this appeal the st is the subject matter of this court subject matters jurisdiction and the nd is the application of plain error review for the claim as an alleged to a defect in the indictment the two factual stipulations that were entered into the record established mr johnson's knowledge of the missing element from the indictment his knowledge of the felony status  was characterized as the old chief stipulation or the stipulation as to his felony status was found in this court's decision united states versus bennett more to be sufficient to establish that missing element additionally possessed it which is evidence that he's aware of it's not the possession of the firearm that was criminal but it turned on one status but if i could take a step back as well on the question of plain error review as the court  suggested the question is is there really any reasonable probability if the court were to correct the error that the outcome of this proceeding would be any different and and there's just no possible way the defense doesn't even offer a plausible explanation of how the retrial would be any different turning to mr johnson's criminal record it's not just three felony convictions he has six felony convictions he's been under felony supervision  probation or parole or entire adult life is had sentences of imprisonment of eight years seven years six years and four years many of these crimes were serious many of them were violent i can at my age and under any circumstances on a retrial where the fans would want this evidence put before a jury what is the import of this for the supreme court about looking outside the record because the trial record we believe this court can affirm the conviction by looking at the stipulations in the conversations that were cited in our brief between mr johnson and a rd party as evidence in support of the conviction but the law of the circuit as present on his question that looking outside is that is that mike doesn't that will ever come up in this case because it's in a way or something i want to know what that has to do with what we're talking about today yes your honor it it may have an effect on the scope of review although the law of the circuit under johnson and even behnam or is in these types of claims it is permissible it is permissible but yes your honor it may have an effect honor the stipulation that was entered into was is different from what a stipulation would look like today on this question right where it will clearly and plainly establish knowledge the knowledge component balance looking at the trial record alone under pursued cotton this court this court could affirm the conviction i would like addressed the question about subject matter jurisdiction and the issue of grand jury proceeding the integrity of that and again i would point this court to the decision of united states versus cotton which was a virtually identical type of claim which is a legal error rates to an indictment due to a change of law there the decision that was decided during the pendency of the cotton appeal and the supreme court said we're not going to go back and look at what happened in the grand jury we're not going to go back and see what kind of fact finding was present and even said that type of th amendment due process claim is forfeited once the case where it's not raised and where the case has been submitted to a pet a jury for finding a fact and where the pet a jury returns a verdict instead you and the question is was there a miscarriage of justice due to the underlying proceed and we don't believe that that mr johnson carries a burden to show either prejudice gun and it clearly there is and friend that was about him being a felon but there's also an in friends that was about him being on parole and it would have been a violation of parole on and so although i as i said before there is evidence for which a jury could theoretically draw an inference it is neither uncontested nor overwhelming and that is the standard and if we're going to look outside the record then that probably is the end for mr valentino but i do think that the state of the law now is that the court should either reconsider johnson based on greer having certain granted or hold the case for trial case and i guess i would have come up with an argument to distinguish it but once agree or had certain granted i think that really changes the ballgame in the crack direction because i think in a trial case that peculiar years we're going to have something to replace old chief on it that is going to start to address that problem now that we have the just three heads are other questions by my colleagues thank