honor this case is about my client's two convictions possession of a firearm by a privet a person and possession of an unregistered gun now i've argued for issues in my brief issue three and four i plan to rest on the briefs but of course if this court wants to address those issues that's fine i'd like to focus on issue one and two and here's what they are issue i want to start with issue two i think that's the most logical place to start for both of the counts of conviction one element of each count was not supported by any evidence in the grand jury count one was felony that's evidence of satisfying the standard what more does a grand jury need to hear they need to hear the one year period right because in this day and age felony cases even  in my brief but in this day and age felony does not necessarily mean a conviction last year i wrote an opinion which went back in the federal law for almost one hundred years to note that the the  equation between felony and more than one hundred years in not only common understanding but legislative understanding is obvious i don't think it's obvious it might is well well here's under a circuit  penalties i think of two years or more right but there i don't know of any state that is that has shrunk the definition of a felony to more greater than one year in prison are you aware of any state that has an active provision that reduces the definition of a felony below a year no i'm not your honor when we're talking about what a felony is and in fact the grand jury heard evidence that this was an aggravated felony so many ways that actually support your position judge but when judges are talking about what an aggravated felony is and lawyers are talking about what an aggravated felony is they can pretty they can they can make a pretty good guess that the period of imprisonment is going to be over a year that's not certain but they can make a pretty good guess what we're talking about is a lay grand jury they did not hear evidence of one essential element which was a felony with imprisonment of over one year activities committee and that case dealt with whether that indictment mentioned the subject matter that congress was exploring it didn't include the subject matter which congress was exploring everybody knew it was an anti communist witch hunt everybody knew that congress was looking at communist infiltration of the press but because that element was not included in the indictment the supreme court vacated it now did the defendants in russell know what they were being called the congress to to to be interrogated about absolutely absolutely they did but that doesn't matter the fact that it's not in the indictment and to make matters worse  this case the fact that the grand jury didn't hear any evidence of it that's the prejudice that's the lack of a fair notice but judge loken i don't even think this is a prejudiced case i think this is a jurisdiction case when you've got was capable of operating as designed that element there was no evidence in the grand jury to support it and it wasn't in the indictment the fair notice or not in les terms what you have here is a procedure that simply failed and if you have a district court and any case i read dukes and dukes is completely off point you don't have a case saying that the definition of a fire in in the the corollary statute to the criminal charges being filed as to go before has to go before the grand jury and he can be included in the indictment if the indictment give fair notice of the elements of the crime charge will do i cited duke simply for the proposition that they capable of operating to decide the government concedes it's an it's an element well that was that was that was a homemade  homemade silencers the government didn't concede that well you shouldn't duke's gives you absolutely no help whatsoever well i disagree i disagree that the government didn't concede i mean other than you you know you've you've got sort of a plausible legal argument but it doesn't line up with the fact that that this wasn't done this wasn't raised timely that it didn't prejudice the defendant in terms of notice of what he had found it doesn't fit the cases where relief has been afforded i don't think timeliness and i don't think prejudice is necessary in this case because i think this me or at least the the the banter about jurisdiction was a lot different before the supreme court you can't begin educating all of us about the misuse of the term well certainly it's an older case and certainly bain has been called into question by cotton but i cotton had to do with stating the amount of drugs ok that's not an essential element under the drug statute it's a required fact under prendre so the government had to state that but cotton also had to do with failure to state that in the indictment not cotton didn't have to do with the question whether the grand jury heard any evidence of an essential element my argument is this when the grand jury doesn't hear any evidence of an essential element and as far as count two goes when that element that the grand jury didn't hear is also not in the indictment you have no crime let me ask a different way what's what i think i don't want to get into the weeds of jurisprudence here but i think the supreme court is getting more comfortable expanding the notion of structural error but your point is taken your honor that i don't have a case clearly on point this issue one and issue  correct that's true a coerced confession is more of a factual issue certainly it's a fifth amendment problem but what you have here is lack of evidence in the grand jury and for one of the counts no element listed in the indictment you have no crime if anything is structural it's trying somebody in district court sitting in criminal session where there is literally no crime there is not none whatsoever if that's not a jurisdictional question if that's not a prejudicial question i don't know what is and the government's approach to this case seems to be vera was nineteen inches you have no crime and the barrel is nineteen inches it doesn't fit that element should the court had no business letting the government in the front door that's correct your honor if the grand jury heard no of it that's you know the fact that you prove with a fence to a crime that successfully doesn't mean there was no crime no jurisdiction to try the case well perhaps in the factual world that's true but we're dealing with courts and we're dealing with procedure the government supports to this case seems to be well we proved all of the trial so don't worry about what happened prior but the fifth amendment requires a grand jury to pass on indictments again i'm back you're talking about the definitional statute you're talking about you're taking you're taking a definitional statute and saying that because it defines an element of the crime i the definition itself as an element of the crime and therefore you superimpose that on the grand jury process i don't think you've got any authority supporting i'm not exactly sure what your honor is getting and i don't understand why the grand jury has to be instructed on the that what is in fact a sawed off shotgun therefore has to be has to be registered to be possessed the grand why the grand jury has to get into the capable of operating definition because duke says it's an essential element and the grand jury has to hear at least some of it looks does not say that well i have to disagree with your honor on that point does buy it didn't address the question that it didn't it was stated in passing what the what the elements of the offense were going to be looked at from the standpoint of sufficiency of the evidence if you use a firearm but by definition a firearm must be either capable of firing or readily made capable of firing because that's a statutory definition it's only part of the statutory definition the statutory definition deals with firearms that can fire that can be restored to firing are capable of firing are designed to fire they deal with firearms in general what the government's argument is refer specifically to the definition of that statute what the government's argue is essentially is well if it's a firearm then it's capable of operating as designed they conflate these two issues and that's something i fundamentally disagree with if the government's right then let's just get rid of the element of capable of operating design as designed if judge looking is correct and that's not an essential element then the government has won but your argument requires the government prove its case granger correct it will increase it will increase the cost dramatically of prosecuting these of this offense absolutely not your honor the government at trial was able to prove pretty that you know the case may plead out the senate made made choose to to stipulate to that particular aspect of the case you're you're accelerating dramatically the cost of proving these these cases by making the government prove it not only to the pity but to the grand jury i'm not saying the government has to prove beyond a reasonable doubt they're going to do it are they going to do the capable of operating they do it putting in an expert who's who's done what we experts testified to in the trials of the government does it the way they did it in this case with all of the other elements of witness could have said oh and by the way it was capable of firing into zein that's it enough that it truthfully fed dunnit well i at some point they did clearly and all the government wanted to all the witness would have had to do by the say look i examined the gun i haven't tested it but i think it's capable of firing as designed and if that's what the grand jury got that would have been sufficient but the grand jury got absolutely nothing i see my time is up thank you and i would ask that this court reversed both convictions vacate so that the government can seek a valid grand jury indictment thank you very very cleverly argued and argued and articulately argued mr patterson i think your honor we're pleased to court your honors counsel and my name is benjamin patterson i mean assistant united states attorney from the district of south dakota representing the united states in this case following a jury verdict  the defense was found guilty of both counts in the superseding indictment possession of a firearm by a prohibited person and possession of an unregistered firearm i will discuss the issues in the in the same order in which they were argued by national firearms act a silencer in that case not a solid shotgun and when you look at a silencer if you're just the government the government should have should have put this evidence on the silencer before the grand jury and i don't think so either have to prove is probable cause you think that everything that has to be proved as an element of a crime to hold element of the crime to the teacher asked to therefore be established before the grand jury i believe the united states has to hit the elements of the crime probable cause on the elements of a crime at the grand jury we would just it's a definitional statute is that is that establish an element of the crime yes it does  r i guess we get we should reverse that your honor is the term if you're talking about firearm when they hear definition of a firearm which they heard in this case i read them the definition of firearm before asking any questions of the witness they knew what a farm was they knew of the firemen issue in this case was additionally they heard additional evidence they saw a photograph of the fire and they knew it was a sawed off shotgun they could see that from the picture they heard evidence that twelve  that's just the definition of a firearm your honor you know you read the definition of the firearm to the grand jury so they were instructed that the definition of a firearm including that it had to be operable i believe the definition your honor that was read to the grand jury was  i did i read the statute fifty eight sixty one what the definition of shock on was and i provided that information to the grand jury before i ever act before recalling a witness and before ever  before ever presenting any evidence and so the evidence was presented they knew what they were dealing with a photograph was entered into exit entered as an exhibit at the trial or at the at the grand jury showing them a photograph of the soft shock on they knew exactly what was being dealt with as it relates to count two there was no confusion at the grand jury level as to what what was being dealt with had you read the statute that it includes the definition yes rather i thought it was not fifty eight sixty one i thought that was in the fifty eight sixty one well it's fifty eight firearm is not defining fifty eight sixty one that's the definition of shock on your honor it's fifty eight forty five d i apologize which is a weapon designed to use the energy of an explosive in effect shock and shell to fire with the pull of the trigger additional here on or if you look at the at the supreme court case law governing governing grain jury deliberations really on whether there is probable cause that the supreme court of the united states and caylee versus united states clearly existence of probable cause to believe the defendant perpetrated the offense and conclusively has many case and case out just that the court went on to say we found no authority for looking into in revising the judgment of the grand jury upon the evidence for the purpose of determining whether or not the finding was founded upon sufficient proof and the grand jury gets to say without any review oversight or second guessing whether probable cause exists to think that a person committed a crime and the same goes for the jurisdictional argument made by honor where they were looking to determine the sufficiency of the evidence and in that case a silencer actually silenced the firearm and that's where the capable of operating as designed element came from was that duke's case and here we don't have the same issue where we're dealing with a suppressor or  a silencer and determine whether or not it just ended up being a can with nothing in it to silence the firearm here we're dealing with the shock on which both by the agent's testimony a grand jury had been viewed and physically examined by an agent and determined to be a weapon made from a shotgun found what twelve gauge shotgun shells and certainly satisfy the definition of the statute for the definition of fire  in possession of a firearm count the united states ask the following questions that grand jury as it relates to that cow or that element of the indictment the question was does casey fog have any prior felony convictions that prohibit him from possessing firearms the answer was yes he has a conviction in one nine hundred ninety nine for aggravated assault it's a felony conviction that was the answer from the from the agent and if you look at you know pones council argues that felonies are punishable by all kinds of things but under the statute eighteen united states code section thirty one fifty six eighty three which defines felony it is an offense punishable by a maximum term of imprisonment of more than one year so it's clear that felony which is the definition is  defined by statute and taken by taken care of in this case and this court in another self in an in an indictment that failed to allege that a felony was punishable by more than one year found out that defining felony was simply immaterial and the united states believes the same in this case the grand jury heard that he had a felony conviction that prohibited him from possessing firearms of aggravated assault conviction so based on that you know as united states believes there is also sufficient evidence contained on count argument again was that the defendant's fifth amendment right had been violated by not permitting the grand jury to hear evidence of the enhancement on the drug enhanced when the court the united states supreme court in that case held that although there is a right at the for the fifth amendment right to permit the jury to hear the evidence of the grand jury there's also a six member right to appellate jury and when a defendant waives by failing to bring the the right forward at the grand jury level which clearly happened in this case it was never brought up pretrial that that right is waived and this case in united and this court in the united states versus axum has held  juries guilty verdict renders any error at the grand jury harmless and that was the case here where the public jury and i think it's key in this case that the appellant is not arguing that there was insufficient evidence produced at trial to support or sustain each conviction both count one and count two only of the grand jury level which again the united states disagrees with but even if that were to be the case the defendant waive that argument and his rights were upheld in t a well i think it's clear under the eighth circuit law especially under united states versus i think it's herbst i believe i'm not saying it could moral or be argument was but this i mean this is all season one and at the same moment right right it's sitting there with a gun on the passenger side of the gun i agree with you i do i just i just was curious about that going to thank you very much  we would ask the court to affirm the two convictions thank you thank you if there is something you think needs reply and that's fine and think we do understand your theories but i'll give i'll give you a minute if you'd like that i think i'll rest e i sure wish it would have been raised earlier and i always tell my students at the unity school of law that you should raise things as early as possible but i don't think that destroys my case i think because it's jurisdictional i don't have to show prejudiced i can raise it any time and indeed in cotton itself the supreme court said these questions plain error can be raised at any time in the cotton course the court itself said if you have an element that's not mentioned in the