parties had an expert witness who testified about that it's kind of unusual but if that acceptable if there were no objection no your honor it is not this court has rejected the notion that an expert can testify and instruct the jury on the law even where the expert has been subjected to cross examination by the other side as to the theory of the regulations that's the zip can case cited in our briefing even though an expert can testify to an ultimate issue of fact to be decided by the jury it cannot testify to the law and that error is compounded here where the court did not issue any instruction as to the content of the underlying regulation cou i think there's a lot of force of that argument but it seems to be a classic example of where plain error would apply if there was no objection was there no objection there was no objection here you know if you all if all of this is true all you have to do is tell the district court the district court can then do it intentional relinquishment of that right so we are what we are anyway i mean this is not some huge right this is just how you present those kinds of violations to the jury and if you say this is an illegal way to present those violations to the jury then the judge could fix it that's the plain error that's the core of plain error to me is when you're not objecting to something that the judge could easily fix if you just told him you didn't like it i agree or i think we're just sort of sandbagging district courts when we do stuff like that so you know you did it wrong even though no one asked you to do it well i think plainer is here to provide an opportunity for where substantial rights have been affected and there is plain the district court is why is it so important that it's that the laws instructed from the judge as opposed to the counsel who are interviewing the witnesses who say this is what it is and the other side can object i mean that maybe that isn't the way it's supposed to be done but it's not some kind of gross violation of i was and fairness i would submit it violates both due process and the right to a jury trial because the governed the government is not truly put to its proof of convincing a jury by reasonable doubt if the jury is not instructed on the law to be applied to the facts but your best case in support of your position that the constitutional violation here were no objection is right where there is a constitutional violation that's what you are saying it's a const inherently not contested in the district court but in this case whether the storage regulations were complied with was contested and there's record evidence on that and so the harmless error test asks whether this court can determine beyond a reasonable doubt that the jury's verdict would have been the same but for the omission of an instruction and that test cannot be met here i would also submit that under this court's nelsen case that an omission of an element of an instruction is error as a structural matter in the government cites the need or a case as just turning that emission of an element can be subject to harmless error review but where the  structural that is not the case in this particular instance the court provided no instruction on the law with respect to the regulations so there's no way to determine what the jury actually applied to the facts and that's different from simply omitting a single element of an offe i'd like to now turn to mr electors conviction under count gore for possession of explosives were under indictment and i'd like to focus on the injury instruction there as well first as we highlighted in our priests the supreme testifying i knew i was indicted of the time and his testimony indicates confusion about what was going on in the state court proceedings at one point he refers to being in prison for contempt at the same time that this was going on and so he maintains that he does not not know that he was under indictment and the government reason of you know that this claim that doesn't carry any war if he did know then there is a harmless error problem on the jury instruction issue i would agree i think that that would then raise the possibility claim that it is an inherent to process problem for i also would go away you know if it would not if he knew because that would because from the moment the indictment issues which can be silent which you cannot know about if it if you didn't know about it then that's not a problem but for you you qualify you say well this might be unconstitutional in a different situation even though in this situation that's not a problem and so therefore in this situation he doesn't get convicted that doesn't really follow i would disagree i think that that is picking up on a reason why a felon in possession of a firearm or someone who is barred from possessing explosives due to a conviction would not be able to argue walk of compliance because there is a notice period during which you can conform your conduct the law but where  new constitutional allegedly unconstitutional aspect is disappearing in the indictment context i would submit because there is wholly passive conduct on the part of the person being indicted that it's clearly out of their hands but that is a different scenario  and violates the cord out of their hands of they know they were indicted when the possession of gervase if they know that they're indicted when the possession occurs that in is not out of their hands at that time earlier that's the case we have here if you assume that he knew which is what i asked who's he earlier in the period during which the government charged him with being under indictment he may not have known at some point earlier then  assuming that he knew then the issue goes away if he had an opportunity in that period to cure then he would have been the issue could go away what was he didn't it come into court and there w some reference in here that he was bound over what is that or is that some other bands that we're not talking about that is the set of facts here record page number fifteen sixty eight mr lechner testif disagreed that he was bound over and that page eighty six hundred thirty four he testified about these proceedings being about contempt so i think that he would have to he would disagree on this record that he understood that he was under you knew he was under indictment and when that happened and what he knew he was bound for is it isn't that your problem is that he under indictment and that he is in fact banned and he said well he disagreed that he was bound over but then he conceded i guess i was and if you attend a state hearing under indictment and you are beyond over then the indictment continues i'm struggling with how i guess i was doesn't concede your say i didn't understand that i was under indictment don't we need an objective standard i agree that it's a difficult task to meet i would say to a recent case from this court united states versus houston two thousand and fifteen s apple lexis one one eight one zero just for the principle that if an issue is contested then the instruction is not harmless but whether there is enough evidence here to contest the issue i submit that there is but i appreciate that it's a difficult standard to meet and if i may i'd like to move on to mr electors convictions for transportation of explosive materials without a license has convictions on or counts one in six and i'd like to begin with the entrapment by a stock whole argument this argument should be reviewed by this court in no row because mr lightener repeatedly argued before the court that he did not break the law and that what he did complied with the regulations but those regulations were never read to the jury and nor was any instruction on the defense given the supreme court decision and us the pennsylvania industrial corporation were just cited in our briefs explains that when  stopped i was the government to stop him he was affirmatively misled by the regulations that permit someone who had lawfully possesses explosives to move them in order to clean up the magazine we don't it's in title movement but the first sentences explosive materials must be kept in locked magazines unless unless they are of the movement is the last for where they must be kept so if you read this regulation it's a limited limitation on where materials must be kept and which materials must be kept so it says so see these materials must be kept locked up but we don't include this so it's only these materials that must be kept locked up that's all it doesn't say and for any other regulation purposes you can do this thing that's in the last clause i just don't see how you can read it that way i have two responses your honor if i may the first is that the pennsylvania industrial precision case that i cited addresses whether conflicting regulations clear up the confusion if there's some other regulation on the subject if that satisfies my asking that's doesn't would lay person who's looking for information about the law and moving their explosives were to read that regulation and it says it might be able to read a regulation in a way that it doesn't really require because it isn't beautifully drafted isn't enough to stop very clear implication of that is that that person can move the explosives and that a layperson reading them would interpret that we give you the hypothetical i came up with what if you have a regulation which says for this but specified vehicle you may not use this particular emergency brake unless you are driving over fifty miles an hour and then there's another provision which says never drive this vehicle over fifty miles an hour you would say someone who agreed that as i can drive it over fifty miles an hour because there's a brake that can't be used unless you're over fifty it just doesn't make sense your honor i would point to that is the problem of conflict not of the one regulation not necessarily being permissive cannot be interpreted as the way that another one can so i think that's the how that's in comp in my example that's not in conflict one of them is a limitation of one and when to use the brake and the other is a limitation on how fast you can go if and then if the if the if the allegation is you're going too fast you don't look at the at the at the other regulation that talks about when you're using the brake or to speak about this case if you're talking about storage as opposed to transportation you would look in the transportation  about when you can transport and look in the storage provision to see how you store my response that your honor is the criminal principle that you have lent any that you construe statutes in criminal defendants favor and that you would maybe look at those regulations differently than criminal regulations that we do criminal liability don't you have a factual problem with that tell you why your client that he didn't know what you couldn't you couldn't you couldn't  comply with the new the regulations or i don't know what they say in a mixed with some profanity i mean hasn't doesn't the factual record high to your honor is there strictly facts that are the government could use but the harm standard is not whether the defendant has proved its case on the record it's whether there's a question for the jury and mr lychner testified then those remarks that he was just joking in his trial testimony and he's been working with  lying stories regulations and as to its tranches pointed out there is record evidence to show that he was not in fact relying on that story to regulation or in any other and the possession while under indictment count i wanted to just point clarify the chronology on that case the court has any concerns about that charges were brought in july two thousand and eleven there was a preliminary examination in august of two thousand and eleven which there was testimony from mr locker himself and from the prosecuting attorney that mr lychner attended and he was in fact found over for trial the interview that took place with the federal agents took place on september eighth two thousand and eleven and that did take place at the chip  county jail because mr lechner was in jail at that time for a contempt contempt charge that was unrelated to these other charges so that arose out of a proceeding in front of a probate court judge and so that's why he was in yes there is actually it's in the definitions of indictment in the statute in the regulations and it is the same thing and he was arraigned on that charge in august of two thousand and eleven and that's when he was found over so ok when you say bound over that usually reverse to something before adama does return but that's what got me confused big bound over when you come before my district judge or something and they'll say  plain error and mr mckenna satisfy that claim error standard because not only did not only did the jury hear the objected to testimony of the expert as to what the requirements were not just the ultimate conclusion that they were and locks on your magazines that set forth and storage instruction five five five that to zero six the expert testified there must be locks the jury was shown photos where there were no locks sometimes there were no doors we submitted to the court a cd that has some of those pictures even a cursory examination of those pictures would demonstrate that there is no reasonable probability of a different outcome even if the jury had had the text of the regulations in front of it in the context of the instructions and i would suggest that there may have been good reasons why defense counsel did not request that here if the text of the regulations were put before the jury not only would it be a very long set of instructions but it would be abundantly clear that mr like it was in violation of numerous of those sorts of stories regulations i would be happy to take any other questions from the court there are a lot of issues raised here no thank you thank you your honor to address the point that was just made about the storage regulations there were errors in the way that the expert instructed the jury on the law so in spite of simply violating the this court's precedent on the proper role of the expert expert in fact gave an accurate instructions for example the expert commented that a storage unit for explosives has to be completely free of anything but explosives but the regulations provide that cleaning supplies in the like may be kept with or anything like that or is it just this discussion the defense counsel did cross examine the expert and listen that there are housekeeping regulations it wasn't the jury was not instructed on that but mr lector did contest that he failed to comply with that regulation on those grounds and i would like to also address the materiality conviction or the material false statement conviction  if there are no further questions and i'll see my time you were appointed under the criminal justice act and we appreciate your efforts see under that accurate number of interesting issues and provide a great service