things in cases where the evidence is close it is essential that the jury is probably instructed as the each required l of the offense is there to consider in this case the knowledge of being a the case some more decided this year by the th circuit there is a reasonable probability that a different verdict would have been returned if the jury instructions had comported with the decision of christ how do you say helen how do you say that with there being a separate conviction under nine the jury was not able to have an ample understand the pursuit it's in circuit jurisprudence or that decision by the court that the jury was not able to consider properly the jury instructions so there is a knowledge aspect to count one we do have to confess that however under ten circuit precedent it is the defense position that the court did not provide the jury the opportunity to properly considered the necessary knowledge element it was dictated by writing and on that point i'm not sure how you get there instructions as the novo and all the defense counsel at the trial level of jetted the right decision and not been decided it was a for appeal and that decision is a legal decision by the court it is our position that the courts to make  sharper but out again urged that it was prior to the decision of rafe and with that the law was not before the court to consider what the proper law was at the trough ex i mean as far as that goes on trial counsel should should have been able to access right and know that those those arguments were being made on these possession cases and so the argument was bailable ye however is the fence position that the trial court was burdened with providing the proper launch struction and this court has the opportunity under plane air review to determine what the proper instructions would be the nd point i was attempting to raise in response to  question is in the government's brief there's a reference to an invited after air however as stated in that footnote by by miss anderson in her brief because they said that does not apply was settled law that subsequently changes the law and the decision of rape was decided after the trial court and it is our position that that subsequent action warrants reconsideration of the proper jury instructions i like to turn the court's attention next to leslie let me stop you dollars then what you're talking about would the error be clear and obvious in that case does create the chance for a different outcome again turn of the simpson precedent and their position of the jury were able to view that and consider that complying with them or tina preston as a reference a minute ago about that ample understanding as a whole that there is a great potential a different outcome well there's a lot of evidence there from the ex wives and the defendant's own conduct that he knew that he was that he there was a protection order so i don't know about but he makes the other than your client's testimony you know a substantial evidence of the jury was able to consider out or to not put it through the lens of proper jury instructions for there now i want to know what did i do i know you think it substantial but i want to know what it because this is a point of confusion and i think you're blurring two things i understand that you have an argument the evidence is insufficient that he knew about the protection order or that but and that's one thing you can argue the ex wives more believe whatever else and we can decide but the nd point is you're saying there's and sufficient evidence that in fact there was a valid protection order prohibiting from having a that one it seems to me you're doing something unusual that i haven't seen which is you're saying there's insufficient evidence of the fact that he agreed to a trial you never contested the protection order was valid at trial and so i don't ask for your dorothy to say that you can make an insufficient evidence argument based on a fact that he had agreed to the law there is a position testified that they had a conversation not too long before that about him a number that protected border because it impacted her relationship with her children ok got that but if you say that there was no not that he didn't have knowledge that the protection order itself was no longer legally in fact not something entirely different another act that is a it please the court i am mackenzie anderson and i'm here on behalf of the united states i think there are two important point that are dispositive as to be efficiency of the evidence of the rule twenty nine challenge the court has essentially already spoken to both of us but the st is that mister kast right testified at trial that he purchased the two firearms in december two thousand and seventeen and he continued to possess them from january of two thousand  th two thousand and eighteen even when he knew at that point and admits that he knew that he was subject to the mccormick protective order because he reached out to his attorney and filed a motion to dismiss it and it was pending during that time his testimony alone is sufficient evidence for count two and covers all of the elements and not to be found in volume three of the appendix at pages one hundred and twenty one two thousand one hundred and twenty three a didn't know about the protective order when he bought the guns in the summer and rejected it and they found that he was subject to the protective order and nevertheless lied on the a t f form that he completed at academy the jury did so based on overwhelming evidence that he knew about the protective order on december th of two thousand and seventeen there was testimony from his mccormick who had gotten the protective order that they were frequently discussing dismissal of that protective order he was asking her to agree to it and she was refusing there was testimony from ms carson his girlfriend at the time that because of issues with her ex husband who cast threats protective order was an issue and she remembers talking to him about it from when she met him in february of two thousand and sixteen and especially from the august to october two thousand and seventeen time period right before he bought these guns and in fact when he bought the guns and told her he bought the guns  the st words out of her mouth were how could you do that with a protective order and he didn't deny that the protective order was still in place he said he completed the forms they ran a background check and they let him buy the gun nothing here and i should also mention mister cassatt right own attorney said that he never told mister casper right that the protective order was not in place until it actually was not in place in february of two thousand and eighteen so the only evidence that supports mister casper wright story that he did not know about the protective order is from mister kasparov himself who is not a reliable narrator and admitted several times in this testimony that he lied about various different things and the court ultimately even obstruction of justice enhanced meant for lies that mister castro had made while he was trial those two points that he admitted to knowing about the protective order in january and february of two thousand and eighteen  and that the jury found he had knowledge of the protective order because he lied about it resolve both the sufficiency of the evidence and the rule twenty nine dollars issues that mister kast right raises because he admitted to his knowledge that us for the purpose of count two and that is buttressed by the jury's well supported conviction on count one which required a finding that cast bright knew he was subject to protective order when he bought the guns and lied even if ready for the law the jury's verdict shows the result would not have changed the court my genitalia of credibility finding with respect to the defendant prior to sentencing the other comment on the record that he didn't find him credible or i don't believe that he made that finding and a credibility determination about mister casper right and till the sentencing when we had brief the issue of obstruction of justice as a  court to make a determination occurred and was concerned that ricky foote go the way that it would and so we're the ones who asked for the special in iraq a tory with the reiki construction as to knowledge of his status and the defendant actively opposed the court issuing that does the united states charge the crime exactly the same way anyway and then seek a special in a rugged tory is the pattern instruction the same as are you aware of a court that has changed the instruction from the way that it was instructed in this case i believe that the instruction post where he would be the defendant knowingly possess a firearm that's the st element and the nd element would be the defendant knew he was subject to a protective order at the time of the possession and i may have misspoken of what i was talking about was the end of language with the indictment language be the same post written i believe the indictment would have specifically charged him with knowledge of the protective order in the language of the indictment then what's wrong with his argument he says why should i agree to have anything on a verdict form the wasn't charged well your honor i got the plane error analysis we can see that there was an error and we can see that that error was plain however mister casper i cannot satisfy the rd and th prong of the plane our standard so the rd prong obviously is that it would have a likelihood of changing the result and we know that it wouldn't change the result here because the jury already found that he had knowledge of the protective order as part of its conviction on count one and their cases that we cited on our in our brief on page forty nine in which courts have made exactly that finding that the defendant is not does not get a new trial because the jury's verdict of guilty for making a false statement on an a t f form was sufficient to establish the right he knowledge element and that's i was speaking to be invited to your argument that you're making yeah and i'm with you all the way until you tell me the next time you and by the same offense it's not going to be in the same statutory  or i understand your honor so i think our argument is that really the invited error or waiver argument go to the th prong of the plain error standard in that he affirmatively opposed a special interactive tory that would resolve this issue and would get the jury's specific finding as to the right he for knowledge requirement for c two and so because of that then the failure to have that instruction doesn't impugn the fairness or integrity or the public reputation of the proceeding because he chose not to have the special interactive tory and  our standard argument is that he doesn't need the rd prong anyway because the jury made the required findings and mister kast bright admitted in his own testimony that he knew about the protective order from january to february of two thousand and eighteen when he continued to possess the firearms if there are no further questions on where he filed be happy to speak to some of the other issues that are up on appeal the other remaining public the nature of the offense mister kast writes history in characteristics and deterrence as reflected in both the district court statement of reasons and the sentencing transcript and i just want to highlight for the court but i think it's important that the district court here had closely evaluated mister kast brights history and characteristics the nature of the offense and the seriousness of the danger he posed to the community not just at sentencing he had done that the district court had made all of those findings in relation to a motion to revoke the pretrial release of the defendant and docket number fifty one dollars which is included in the united states supplemental appendix is the district court's denial or the district court revoking mister kasparov's bond and making findings under the clear and convincing standard that mister katz cast bright was dangerous and examining in detail the history of violence that included very extreme dream incidents and mister cast right then filed another but a motion to reopen the detention hearing that was fully briefed by the parties at the court's request and the court and i do also want to point out one last thing is that mister kast right doesn't even address the three thousand five hundred and fifty three a factors so we've also raised the argument that he may have waived his substantive reasonableness argument because decision in that case the court found there was plain error however a new trial was not granted and the important distinction back there is untrue rio the defendant six the only convictions was more than aware of a circumstance which we believe is disting doesn't twenty just from another circular reference then yeah please letter to the court subsequent to briefing where they found it overwhelming santer status alan at all the overwhelming was uncontested and the jury would have no probability of reaching a different verdict because there is no possible d basis for concluding there exists that it is our contention there's a substantial difference in evidence here and a jury looking at the matters a whole may have considered something other than what they decided also