all right our nd case this morning is number nineteen dash winds for seven and seventy one and the foster versus the united states and the scold or before you begin i want to recognize on behalf of the good morning your honor as judgment jordan just said i'm randy gold or on behalf of anthony foster the case basically deals with an issue that's coming before the court i think in several cases there's another case being argued before two out of the three of you later this week on thursday and get deals with the relationship between beam and stronger what we have in this case is a classic stronger issue on the issue is what happens when an indictment charges three predicate crimes to nine hundred and twenty four c and one of those credits no not one of those predicate crimes no longer qualifies because it's unconstitutionally vague and you have a general jury verdict that doesn't specify what the jury conclusion but i might not bound by garcia our position is you're not and the reason is because it doesn't address drawbar your balland to follow a supreme court precedent that's your st and foremost obligation you can't take a panel opinion and say we're going to disregard the whole law and of the valley binding supreme court precedent because the panel didn't address it in a case  i would say if the courts really concerned about garcia would probably need supplemental briefing on it but there are serious serious problems with applying garcia that really raises real due process issues and the supreme court has already indicated it's concerned about getting presidential value where there hasn't been a fair opportunity for briefing and there hasn't been proper representation by counsel and garcia raises both of those issues and therefore we would say it's troublesome in addition you have mean i think the error in this case is not harmless and we're prepared to argue that my have my cat my only concern about waiving your argument that it's structural as i look at this and the problem arises not from what happened in trial court the problem arises from the charging document itself and i see that as a fundamental problem does this charging document actually convey jurisdiction on the court if one of the possible grounds is not a crime and so we have a jurisdictional problem that based in the churching document not in evidence presented at trial and the reason i'm concerned about it is when you  in jury instruction cases which had kept on a lot of them are you look at what what instructions did the court give and can it be remedied are there other things here you can't say there was a problem in the presentation of the evidence jury instructions rationally accurate at the time they were given so you can't look at it and say there is other evidence and so really this little bit of everything evidence that was present charges a potential not crime but if there was but if there was a verdict was special in iraq it's worries that alleged terror and the lightning would make a difference because you know exactly which conviction was tied to eat to which predicate offense rate for estimating the jury verdict didn't list the one qualifying predi because each one of the good talents an issue would have relied part on a qualifying predicate am i mistaken that overlooks a line of chases including simpson out of this circuit that says if they've alleged three predicates you can have three crimes it only is the least of the serious the least serious conduct you have to look at the crime with the least serious conduct because he can't be convicted on that the verdict based on all three it has to be based on one and since we don't know the mind of cases say you have to look at the least serious it's conspiracy or substantive drug crimes is there any way a jury could find one enough the other yes because the question is in what context was the firearm possess the case and the fact that my client was not involved in any of the pre planning or anything else and really made no statements on his own he basically shows up at a final meeting if he has a firearm on him and there are there is no proof as to what what that firearm if anything was going to be used for this isn't a situation with a pile of firearms in the car and they're going to go use those firearms to commit the crime and nobody really knows that my client even has this firearm on him and argu there for his own protection and safety in meeting with these people that you know some of whom he does not know so the question needs to focus on in what context was the firearm used not whether the conspiracies are based on the same conduct potential conduct and of course here we have no actual doing of the crime we only have the discussions and my clients role and all that is very limited your honors at the outset the garcia case precludes relief for mr foster he cannot meet his burden of proof under the men as his predicate offenses of conspiracy hobbs act robbery and the drug trafficking offenses were in extra quickly intertwined and moreover the jury found him guilty beyond a reasonable doubt of those predicate offenses to address the stronger of line of argument although we don't need to get there because garcia meet it plain that demon is the standard of  general beeman is what controls and you don't ever need to get to the harmless error analysis because there has been no error shown he can't show entitlement to relief claims and so because because mr foster can't show entailment really high on his claims under demon we don't even need to get to be harmed here and now but how let me is and again i understand that we are bound by garcia so you could take that as a new a new rule beeman was relying on a long line of precedent that petitioners need to prove entitle it's relief on their claims and they have the burden of proving that so the fact that demon was in the context of a sentencing enhancement whereas here we're talking about a conviction there is no issue with that distinction because again the man was not a new rule it was based on this long line of purposes it's just easier or it's a similar analysis but no matter what there's still have to be an error that shows and once it's only once that area is shown which that error the burden of showing that error therefore the jury might have convicted for something that is simply could not convict them without the predicate if they relied upon the conspiracies of violate the harms the the charge under even that the art of the rights of the that the question would be to what extent does the petitioner in that instance where we take the man out of that to what extent does petition move show that there is an error is it simply that they show the possibility that they could have been convicted of a nonevent or is it that they have to show that something more that there was actual prejudice there assuming assuming in favor of mr foster at that point that we ju transcript if you didn't express lee under the words proceed you will the only reference was we rely on our argument in the other three which contain the procedural the false argument is that a fair statement of what happened at the oral argument i believe that correct am i to school you've got your time left for records yes judge let me st address where you left off which is that the government never responded to the hideous petition the court ordered them to respond and they still didn't respond so they did waive the procedural default argument it was never ever raised in foster's case and i was the one that handled this in the district court and i walked into that oral argument before the district judge and all of a sudden on being told to reference something things that were never thought i yelled in my head because kate's things that are not part of mr foster's record and that's  the government contended that they were procedurally defaulted that is the st time in this whole proceeding that ever came up was that reference by the district court just record also goes on to say the government contends foster barred from those arguments and sure the government so i will nothing to testing the petition that's not to say the court didn't have an obligation to consider the issue to the top but it can't do so by looking at nobody maybe you know where that there was a document filed in another state that the government was seeking to have applied to mr foster  is really really troublesome because what the government is seeking to do is wipe out stronger strickland's and every other supreme court case that sets specific standards for different types of ha and they're looking to place an impossible burden not just because to say we have the burden of showing what was in the mind of a jury is something that could never ever be shown because of the nature of jury proceedings so the burden