good morning learning steward for mr health i wanted to initially point out that at ph thirty four the government's brief they set out the facts regarding their request for the jewel instruction in this case and they say that they  suggested the jewel instruction in order to give the jury an alternative theory to convict my suggestion is that under the heredia case and also the baron case they flatly can't do that and really i'm going to because the issue here was not a question of factual knowledge anyway it's a question of how he understood the question i suppose so why isn't this just kind of apples and oranges i mean it doesn't seem to have anything to do with the case before that very reason is in hama and i and i agree with part of that the part that i don't agree with is the orange is part of it i would suggest that this was an acquittal case this is a case where he would have been acquitted by the jury if it weren't for that instruction if because the instruction came back and said that if you find he knew he was a felon ok basically you must convict that's the way the instruction came out because it was an altered jule instruction yes i'm i'm sorry i'm making myself clear the instruction to the jury was that if you find he knew he was a felon and that's that's the way the instruction is then basically it goes on to say that you must convict didn't deny that conviction or the gun george or any red leader in the prior charge but it was a question of he thought that somehow i guess like i r s records and other things that after seven years they evaporate i'm sorry i don't have the instruction in front of me but the instruction says that you need to concentrate on whether or not he knew he was a felon and if you find he was a felon then and i'm paraphrasing you must convict him and i euro or that would have put him on neutral footing you know there was a vociferously i think exactly that word objection to it but that was it was no alternative presented and to that extent i'd add that to my list of i c claims at the end of the third issue once one is looking at the actual requirements under heredia to get the jewel instruction there of course the three factors that have been set out first that the individual actually suspected second that they deliberately interested to hear what government council has to say about that because i challenge them in my brief to put out what what are the facts here that suggest jewel is appropriate what are the facts that say he suspected of anything and as far as i can tell their answer back was he was a felon therefore he should have known i think that's what they're trying to argue here and if that's true he wasn't unclear about anything right was perfectly clear yes his how case was i was perfectly shouldn't have been given but it's the modification of the district court made of the instruction which talks about not his knowledge absolutely not astrology but at least as to whether or not he was a felon not whether he knew he had to check the correct from a legal standpoint but the question was not our us alan the question was have you ever being convicted in any court of a crime for which the judge could imprison you through more than a year even if the judge actually gave you a shorter sentence so that's actually a fairly precise question to which you have to answer yes or no i'm having trouble understanding how the you'll instruction which i think was an error however collided with this precise question and again my position is that the emphasis was changed by the drew jewel instruction from the defense which the court just mentioned to the issue of whether or not he was a felon which was an issue and the the district court really changed what was going on in this trial by allowing the jewel instruction of of the jewel process whether he took whether he investigated his suspicion that would be the governor's through he didn't even ask a question if he did what's strange about this case is that his defense comes from nowhere i mean this is a clear to be out of the album doesn't say it was right it says it was harmful that's why i don't understand why arguing that was right but we certainly want to harm i'm sorry we certainly agree it was harmless because all the evidence supported his guilt here and i don't the court this court upheld the joule instruction on the basis of the defendant's defense which was even though the government had good evidence of actual knowledge in its case this court held them in the defendant said i never open the envelope i didn't know what was there's any evidence that he consciously did that so as to not find out the truth well yes your honor because there's in this case there's another form defendant filled out of the same time in which it's the state form in which he was asked have you ever been convicted of  what this question so i'm just not going to find out because i'm afraid i'm going to find out is to be against my interest but that's not what he's saying he's saying this is what i thought it meant and he could be lying he technicality and the strange thing here is the technicality isn't even based on the text it comes from nowhere and the defendant says that he sort of but by testifying as to what's going on his own head he's created and i think the other thing is if this was a true instruction it disqualified i think that i think that's right your honor that's quite different would have to be aware of the fact that his conviction fits into the form and if if one can't count that as the sort of thing to separate that after the question was going on in my head is that i didn't know what was in the suitcase we then based on his testimony would get a jewel instruction if the facts overall warranted your arrest let's just assume for talking purposes that this modify jewel was inappropriate what is your position on whether it's harmless or not it certainly is not it's certainly is harmless because the evidence that deliberated for two days then the jury asked the question how much almost i mean i answered all right of the jury deliberated for two days comes back and asked for clarification on knowledge the court gives a jewel instruction jury comes back in a bothered by that but formally legally of course that should be a question for sensing which it seems to have been here in this you get we have things that just result in this circumstance which is a conviction but i think you know more lenient sentence if the facts warrant it for that reason mike said it's a very unique defense and it's an actual knowledge case right down the line until the government brought up the jewel instruction only injury deliberations they did not ask for the instruction in the instruction conference it was not