happy to hear from mr percy when you are read hurt where actually are you with and also only ask you let me ask you a question about that so the district court here instructed the jury i think correctly because we have to come out three days before that they had to find that the defendant knowingly possessed and knowingly you knew he was a felon and that the defendant stipulated that trial that he knew that he was a felon so given all of that i guess didn't sufficiently state the element is ambiguous when knowingly is that good i'm glad that technology is working this morning for me at least i will start with the retail argument that opposing counsel raised and i think it's a very important starting place for this court to recognize that the indictment in this case was specifically changed in anticipation of the brock's where the indictment the original indictment language had the word knowingly immediately preceding possessing the firearm version of our indictment where the word knowingly was only in their minds and it immediately preceded the possession of the firearm and they said that that was reasonable in that circumstance to believe that because knowingly came at the beginning it was going to apply to everything that came after a similar here where knowing him at the very very least with all of the language coming st what the elements were and then the comma and did so knowingly it's our position that that logically would be in the same view in the same way where knowingly would logically could then certainly logically be read to apply to all of the preceding elements well what's the rule of actual notice and interpreting and diamond because i know the that the defendant is on notice of what he's being charged with and in this case he certainly was because it was vetted in advance of trial and raised there's no question here that the defendant knew that the rules had changed and now the government was required to prove that he not only knowing we possessed the firearm but also that he was aware of his status  defendant was being charged with a felon in possession of a firearm he was clearly charged with a violation of one thousand and two dollars the question i suppose is whether the  knowing status of the knowing of his prohibited status element was clear enough our position is that it was because of its placement here at the end where it logically would be read to apply to all everything proceeding at unlike if i may go back to the other case in may is where they said look this is not going get this language cannot reasonably be read with knowing applying to not only the possession but also the knowledge of the status element and the language there was what our indictment original cover everything it needed to hear all of the elements i think it's very important to keep in mind that when we are looking at this this court has made clear that we read the indictment as a whole we give it a commonsense construction and we use practical rather than technical considerations in interpreting that and the question the task is not whether there might have been an intact an indictment that was drafted with more clarity as as mr hersey said you know how difficult would it have been to say knowingly possess the firearm afternoon knowingly being convicted of an offense and that's true that that language is deep most crystal clear but that's not the test that this court employs this court looks at whether it was whether those minimal constitutional standards of notice were met and our position is that they were here get go back to the graduate for the super sitting in the room i think i don't have the dates in front of me exactly i believe the superseding indictment may have been somewhere between a week and two weeks before the trial started  however we didn't even have any language from rehab yet that opinion only came out three days before the trial and it was the it was the indictment f right thank you for your moreover setting aside even even if this court were to determine that the language was insufficient even though it doesn't have to be the most perfect language rather just language that is considered to be meeting those minimal constitutional standards harmless error still applies and and we fully appreciate that this is not plain error review however that doesn't mean that it requires that a deficient indictment would automatically require reversal the constitutional errors that infect the entire trial process or where they necessarily read during the trial where this court has recognized six different scenarios where that involves in some examples of those or a complete denial of trial counsel having a biased trial judge racial discrimination in grand jury selection and so forth this is not one of those situations it does not qualif his prohibited status and the jury was instructed accordingly they were instructed even when they were the trial judge here being one of the st to consider doesn't even require which is that he knew he was therefore not allowed to possess a firearm and the jury in this case in return a verdict beyond a reasonable doubt finding all of those  there was discussion about the stipulation here and whether that was fairly entered into or not and it would invite the court to consider the following the the are opposing counsel mention that it would have changed his entire trial strategy had he had more time to consider and been able to undo that stipulation that you had previously entered into  i believe that that claim is not consistent with the record here the defense in this case was very clear that there big big they did not challenge anything other than fire he had entered several other stipulations this stipulation that we're referring to was only one afore he did not challenge anything about the d n a swabs nobody ever saw me that got at any point in time and that gun could have been under that mattress for years it wasn't me who touched it so given that our position is that your briefly i'd like to respond to the argument that that is the thirty day requirement that i believe that that comes from the speedy trial statu he waives that so i have to address judge grants question from earlier whether it was required for it to be thirty to thirty days for an indictment or superseding indictment in this case at least that statute would not seem to address that at all and i see that i in beyond my time so as far as all of the other arguments including the motion to suppress we would rely on although i will say i think that that i've read that colloquy to you and i think that that's a different argument they are making and that i think to my reading actually that's not in question but i think that would be a separate legal argument