Oral argument — United States v. Steven Fulton

Good morning, your honors. May it please the court. My name is Kate Englander, and I represent the United States. A jury convicted Steven Fulton. The trial court threw out that conviction based on a clear error of law and conditionally granted a new trial. This court should reinstate Mr. Fulton's conviction. Now, there are two issues here on appeal. The first is whether the judgment of acquittal was an error, and the second is whether the conditional grant of a new trial was an abuse of discretion. And I'll start with the first issue. The trial court erred when it concluded that the government had to prove to the jury the maximum penalties for Mr. Fulton's predicate conviction. This deals with the element that the government had to prove in this case that the defendant made a false statement on the ATF form in connection with his purchase of the firearm. And here the false statement was that he was not a felon. So, in other words, the government had to prove that he was, in fact, a felon. And it did so. Now, this is an element that has both a factual and a legal component to it. There's the factual component that the defendant, the person who was sitting in the courtroom, was the person convicted of that offense. That is what the government proved at trial through admission of the judgment of his prior conviction. The legal component of that question is whether that offense was a crime punishable by a term of imprisonment exceeding one year. And the government submits that that was for the court to determine as a matter of law. And that it was, therefore, error for the court to throw out the conviction based on the fact that the government did not put in evidence of the maximum penalties. Now, there are really two cases in this circuit that address this issue and sort of draw the distinction between the factual and the legal component of this element. I'm assuming you would say that the termination of a felony under 922 G1 and the statute we have here, 922 A6, would be the same. That's right, Your Honor. I don't think that there's any real distinction in a case like this where the false statement is that the defendant wasn't a felon between the way you would determine that element of a 922 G1 and this element of a 922 A6. So that would be a question of law under either statute. Correct. And that's what other courts have said about that element of 922 G1 very clearly. Counsel, did you, as I understand it, at trial the conviction, the prior conviction was introduced and the witness, there was a witness who was asked the question of whether or not it was punishable by more than one year. And that testimony was not allowed. Is that evidentiary decision before us, the district court's refusal to permit the witness to comment on that? Or is that maybe it's just bound up in this first issue you're talking about? Thank you, Your Honor. So I don't think it's before the court in the sense that what the government is really asking for is just for the court to reinstate the conviction. So we're not actually contesting at this point that the court didn't give a certain instruction or that evidentiary ruling. But I do think it is bound up in that issue. But it's interesting, though. I mean, why would you ask if you really think this is a question of law? It's a good question, Your Honor. I'm not sure exactly why it was asked. I think the court was correct not to allow that testimony. I think it was a decision for the district court to make. But the district court didn't deny it on that basis. The district court said this witness didn't have familiarity with whatever law was involved. So it was not a law versus fact denial. It was a you're not, you don't have enough information denial. Anyway, I just, it seems like at least, I mean, I understand the position that this is a question of law. But I just wonder about, I mean, I don't know what to make of that. But it seemed like the government, at least below, was proceeding in a way to try to introduce it as a factual matter. And I think what the district court said was this person is not qualified as an expert on New Jersey law. I'm not certain that the government, if it wanted to, could have put in an expert on law in a case like this. The district court is the expert on the law, and they make the rulings as a matter of law. I think that's fair. But that's not how, I mean, you say my question. I don't, it doesn't look like that was the way it was litigated below. I take the court's point that that's not how it proceeded at trial. But I also point out to the court that before the trial, the government did submit an instruction in its proposed jury instructions. And that's at J78, where it asked the court to instruct the jury as a matter of law, this conviction is punishable by, you know, this offense, which was the conviction, is punishable by more than a year in prison. So I do think that, you know, perhaps that there was an effort by the government at trial to get that in. But certainly the government viewed this. Maybe the government was just rolling with the structure that the trial judge had set up through his comments and rulings. I think that's very possible, Your Honor. And they both may have been wrong. That's neither here nor there. Point taken. And I, but I do think, you know, it's clear in this circuit that there's both a legal and a factual component to this. You know, Essek illustrates that where there is a fact that the government needs to prove to the jury in order to prove that the crime is, in fact, punishable by more than a year in prison, that it needs to do so. And so in that case, the defendant had been sentenced, I'm sorry, had, it was more than six years after his previous predicate conviction. And at the time, under North Carolina law, you could basically automatically get your civil rights reinstated after five years unless there was sort of subject to some exception. So the government had an affirmative obligation in that case, what this court said, to prove that he had not had his civil rights reinstated. But in Thomas, this court then said, you know, when it's less than five years and he couldn't have automatically had those rights reinstated, it's established as a matter of law that it was a crime punishable by more than a year in prison. And the government didn't have to make that additional factual proffer of evidence to the jury. Are you aware of any court that has held that this question of whether a crime is punishable by more than a year in prison is a factual question for the jury? I'm not, Your Honor. Every court that I'm aware of, and that includes decisions in the First, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits, has held that it's a matter of law. The Third Circuit jury instructions also instruct the district court to instruct that it is a matter of law. And there's good reason for that, too. I mean, it does prevent the government from admitting evidence that could be prejudicial to the defendant. You know, convictions that wouldn't qualify really shouldn't be in front of the defendant. And the First Circuit is actually, at least one other circuit, have treated this as a threshold evidentiary issue for that reason. So I think there's good reason to think that that's the appropriate way to handle it. I would also just point out, you know, following this court's decision in Simmons, we certainly don't ask juries to try to interpret the North Carolina structured sentencing to decide whether someone's predicate conviction is punishable by more than a year in prison, right? It's a complicated scheme that needs to be sorted out by the district court, not something for juries to decide. What do you make of the Burroughs case that your colleague cites? I know that's different. It's federal jurisdiction. It's not this specific question. And the case is kind of strange. It doesn't do a whole lot. But there's a footnote in there that suggests federal nexus might be a question for the jury, which seems maybe at odds with other cases. But I just, do you have a view on that case? Your Honor, I don't think it's applicable here for the reasons that the court cites. The fact that it deals with federal nexus, I don't have much beyond that to say on that issue. I think it's clear from the way other circuits have handled this, as well as the way that this circuit has handled this issue, that it should be decided as a matter of law. And there was an error for the court not to do so and to throw out the conviction on that basis. The only point would be, to the extent that federal jurisdiction might also be a question of law, or arguably is. And to the extent that case implies that's an issue for the jury, maybe it's not applicable in the sense of controlling. But does it give us an analogy? I think the closest analogy is certainly going to be Essex and Thomas here, because they deal so directly with this, virtually the same element. And I think that those cases lay out clearly what the court's obligation was here. And that it was really error for, I mean, the jury clearly, by convicting, made a determination that the defendant had been convicted of that offense. That's the factual element, component of the element. And so it was error for the court to throw it out based on an incorrect assumption that the government had to prove more than that. Can you move to the Rule 33 issue? Assume you're right on the first one. Assume we agree with you. How is it an abuse of discretion for the district court to order a new trial under Rule 33? Yes. So what this court said in Rafikian is that it's an abuse of discretion, it's error, if the court grants that new trial based on an erroneous factual or legal premise. And here we think that the grant of the new trial flows directly from the error of law that the court made in thinking that the government had not proved the conviction. Why is that? So what the court... Well, are you saying the error was failure to prove the conviction or failure to show that it was a felony? Yeah, I misspoke, Your Honor. Failure to prove that it was a crime punishable by more than a year in prison. So what the court said is because the government didn't prove that, necessarily the government couldn't have proved knowledge, couldn't have... I know that's what your brief says, and I just didn't see the district court tying the decision about knowledge to the absence of proof of a felony or punishable by more than one year. I think the court doesn't highlight any errors in the trial other than that one error. And so really I think that it's sort of a doubling down on the issue. If the government didn't prove that he was, in fact, convicted of a crime punishable by more than a year in prison, then it couldn't have been knowing and it couldn't have been intended to or likely to deceive. But that's not what he said. He said the judgment doesn't lift, the issue is knowledge, and the judgment doesn't specify the information about how long it's punishable. And he says it was punishable, he only stayed in prison 13 days. And then he cites the testimony of Officer Cato. And look, I get the frustration, but it seems to me like he just exercises the right that that rule gives and says, you know, I just disagree, even though the jury could have come up with that conclusion. I think in that case, Your Honor, it was a factual error about what was actually shown at trial. I think the court disregarded a lot of the evidence that the government put forward that it was, in fact, knowing. You know, first of all... Let me read you the... I'm sorry, go ahead. So, this is JA 254, and he's announcing his decision on, this is a written opinion, on a new trial. The court nonetheless determines that a new trial would be warranted in light of the absence of proof of Fulton's knowledge that the statement was false. Which is a different issue, in part, as to whether or not he knew he was a felon. And by using the term felon, it's a shorthand for more than a year. Right, but I think what the district court relied on there was the fact that the judgment didn't say felony. Which, in and of itself, you know... Well, the proof that the statement was, that the felon knew the statement was false is a separate element. And even though the Supreme Court said, well, you know, a felon usually knows they're a felon, there are cases, particularly that involve state misdemeanors, where that could be an issue. Here, I guess your argument could be that the district court was just factually wrong, because there was testimony that Judge Quattlebaum referred to about his felon status. But it seems kind of murky that it went right back to the law versus fact question that you've already covered. I think, so I think in part the court was relying on the fact that the defendant couldn't have had knowledge because his judgment didn't say felony on it. I think the jury, based on some total of the evidence offered at trial, clearly could have rejected that and determined that he did have knowledge. As the court pointed out, the fact of conviction itself, as the Supreme Court has said, is powerful evidence of knowledge. But there was other circumstantial evidence offered at trial as well. The ATF made a visit to the defendant, well, a phone call and a visit to the defendant during which they told him, you are a convicted felon, you need to stop trying to purchase firearms. And did the district court weigh that? I saw the district court said, you know, Agent Cato testified, and when talking about the weight of the evidence, he didn't seem to factor that in, that I could tell, but what's your position? That's right, that's our position, Your Honor, that he didn't, he sort of disregarded that evidence in his assessment. Because it's one thing to say, well, you got 13 days and it doesn't say felony on it, but this gentleman got two personal, you know, he got a phone call and a personal visit. They said, you are a felon, stop it. Right, and that alone is powerful evidence as well, in addition to the felony, the fact that he was denied from buying a firearm. So are we saying then that he just needs to explain it more? I mean, because I don't dispute that there was evidence from which a jury could have concluded knowledge. I mean, I think you articulated some and a jury could have done it. I guess my issue here is, what are we asking district courts to do? I mean, the rules permit that discretion. Anyway, I'm just, is the abuse of discretion in your mind not articulating more about its reasoning in the weighing process? I think the abuse of discretion is not weighing the evidence at all. I think the abuse of discretion is the trial court trying to substitute its own judgment completely for the jury's in this case. I thought you were going to argue that the abuse of discretion was the district court's statement that there was an absence of proof of his knowledge, when clearly there is knowledge in the record for the jury to weigh, but if the district court made that factual error, is that an abuse of discretion? Yes, that is an abuse of discretion here where there was, again, significant evidence in front of the jury as to both the knowingly and intended or likely to deceive elements. And moving just briefly to intended or likely to deceive, in its written ruling, the court only addressed one of those two prongs, but I would just note that the government could have proved it either way and did, in fact, prove both intended to deceive and likely to deceive. You're a little over, so you've got some time on rebuttal. Thank you, Your Honor. Ms. Tarleton, we'll be hearing from you. Good morning, Your Honors, and may it please the Court. I apologize for my cough drop. This Court will only reverse a judgment of acquittal if there is substantial evidence to support the jury verdict. I think it's important to recognize what my friend is asking for is reinstatement of a jury verdict on which there was no evidence presented at trial and, in fact, no instruction given to the jury as a matter of law. As to what issue? As to the punishments for the New Jersey conviction that Mr. Fulton had sustained. So if the government argues it's a question of law... So you're arguing that's a question of fact? No, Your Honor. I think there's a lot of ambiguity in this record. I take from the Court's questions an assumption that this is a question of law, but even if that is true, the judge would have needed to instruct the jury this is a crime punishable by more than a year under New Jersey law. He refused to do that, and the government in this appeal did not challenge the denial of that requested jury instruction. And so, as it stands, there was nothing on the basis of which this jury... Well, wasn't there a pre-decedent error, though, that if the District Judge was under the view, apparently shared only by him and no other court, that the issue under A-20 and G-1, and I would assume this statute here, that it's a question of law once the conviction has been entered into the record, and the law of determination is to be made by the judge, I mean, if he started with that error, why isn't that enough? I think there was some back and forth between the judge and the government about whether this was a legal or a factual question, but the judge reserved ruling on the Rule 29 at the close of the government's case. And at that point, the government hadn't even put in the statutory penalties in New Jersey. So they hadn't even given the judge the predicates to make a legal determination upon which to instruct the jury. Well, if you knew what the statute was, I mean, he's got law clerks. They can look that up. He can look it up. Why did they need to do that? Well, Your Honor, I think there has to be an adequate foundation for especially an out-of-state judge to be making this determination, and I think we can see that based on this Court's en banc decision in Simmons. These can be complex questions. I don't think a judge would want to, in the last few minutes before jury instructions are entered, make a complex determination about statutory penalties where, for example, in Simmons, this Court has held you can't take the statute at face value. We have cases almost every day in the criminal sentencing context, and the issue is, well, is it a crime of violence, an aggravated felony? And we're looking at prior convictions in state courts, and once you know what the statute is, the judges do that work. Sure, Your Honor, but even in that context, the government did not appeal the district court's refusal to give their requested jury instruction, and as that stands, this jury verdict is fundamentally defective. Would it have to be done that way? I mean, I grant you that's one way you could do it with a jury instruction that says what the punishment is, but once the judgment is entered, is there anything wrong with the district court determining this is a legal issue? I can tell the law that it's punishable by more than one year. Does that actually have to be carried out through a jury instruction? I think so, Your Honor, and I think this Court's decision that you pointed to a moment ago in Burroughs is instructive on that point. Footnote 7 talks about how this Court will not take judicial notice on appeal of an unproven essential element of a criminal offense. The jury was not instructed as to the necessity of finding a federal nexus, and we cannot assume that the jury would have arrived at the same verdict. That's the footnote, and I hear you. I asked the question about it. I think that's probably the best you got, quite frankly. Most of the Supreme Court and Fourth Circuit law talks about federal jurisdiction being a question of law. That goes back to the 1800s. I've just looked at that in another matter, so I don't think Burroughs really could fairly say the Fourth Circuit views federal jurisdiction issues to be the province of the jury. If Burroughs is your case, I understand that, but I'm still having trouble with the notion that it has to be done through a jury charge. That could be done, but I don't know why the Court couldn't just exercise its province as the expert on the law to do that. I think, Your Honor, this is the situation. First of all, I don't think that the penalties for the New Jersey statute are a question of federal jurisdiction. I couldn't hear what you said. Just repeat what you said. Yes, I don't believe that the statutory penalties for a New Jersey offense are a question of federal jurisdiction. I also think that the judge in this case, Your Honor, Judge Agee had brought up the question of is this the same as 922G? I think in some ways it is and in some ways it isn't. Like in 922G, that prior felony conviction is itself the element. Here it's a little more complicated because the question is whether the statement was false. The definition of the term is under 820, I think, for both statutes. That's right. And we have cases that say directly that the meaning under 820 and G1 is a question of law, period. Yes, and even so, Your Honor, there was nothing before this jury. No evidence, no jury instruction, nothing. And so if this Court were simply to remand, to reinstate the guilty verdict issued by the jury. And I don't want to belabor the point, but we often have situations where the jury is asked the questions of fact, and then the judge decides the law and marries those two things up. The jury is not always instructed on the law says X, Y, and Z if it's not pertinent to a finding they have to make. So why does it matter whether there is a jury instruction? I mean, I understood your argument to be this is a question of fact not law, but now you're saying, well, even if it's a question of law, it's somehow not preserved because the judge didn't tell the jury about the law? But if they didn't have to find it, I'm not following why that matters. So here are the element that's relevant in 922A6 is whether the statement that Mr. Fulton made on the form was false. So there is a finding that the jury has to make based on the understanding whether or not this is a felony under New Jersey law. Well, they have to say he was convicted. This is the guy. We have this judgment. That's the same man. He was convicted of this crime and he said he wasn't. And he knew all the other elements. He knew that he was. But whether that crime is punishable by more than one year is a question of law. The judge doesn't need fact findings. He doesn't need judicial notice or any of that. He can go look up the law and figure it out. Sure, but then the jury is tasked with determining whether then the mismatch between what Mr. Fulton said on the form and what the statutory penalties in New Jersey are constitutes a false statement. That's the question that's for their consideration under 922A6. And so I think given the fact that they were not properly instructed in this case and given no foundation to make that determination, I don't think that this Court could fairly say that there is, quote, substantial evidence to support the jury verdict. So they had no foundation to decide what exactly? The falsity of the statement that Mr. Fulton made, because they were not instructed nor provided any evidence about the penalties. About whether he was a felon or not? That's right. I thought somebody got on the stand and said he's a felon and I told him he was a felon twice. Agent Cato testified that he told Mr. Fulton twice that he was a felon. He never testified that he told Mr. Fulton he was convicted of a crime punishable by more than a year. And some felonies are not qualifying under federal sentencing law, as this Court is well aware. But in any event, Judge Boyle rejected the government's attempt to have Agent Cato testify about the statutory penalties. Because he was no legal scholar. Because he was not qualified to testify about New Jersey penalties. And the government confirmed today that they're not challenging that evidentiary ruling. So it would be challenging for the Court to say, well you can prove his knowledge. Again, you had a pre-decedent error. I mean, the only reason that the agent was asked those questions to testify was to get before the Court in its incorrect view that it needed some evidence of what the New Jersey penalty was. And once you had the order entered, if the judge at that point was to determine the law this is a felony. And again, I'm using felony as a shorthand. You already had that pre-existing error before the ATF agent got up there. I don't think that's supported on this record, Your Honor. There was no conversation about whether this was a factual or a legal question prior to Agent Cato's testimony. After Agent Cato's testimony was concluded... Well, I certainly saw a number of places where the government was arguing at trial. This is a question of law, Your Honor. This is for you to decide. None of that started until after the close of the government's evidence. And under Rule 29b the rule provides that when the judgment on the judgment of acquittal is made and reserved that's when the record closes for that determination. So if the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved. But is that really... Maybe it was just the same question. But yeah, I mean... The evidence in the record is the judgment of the... and the statutory basis of the conviction. The government's position is we don't need more evidence. We've got the evidence. What we need is the legal decision as to whether that crime is punishable by more than one year. That's a question of law. So anyway, I'm not sure I'm following why there's more evidence needed if it's a legal question. Well, just to clarify, Your Honor, the statute had not been provided either to the jury or to the judge at the time the government closed their case or at the time the Rule 29 was initially raised. The statute's not on the judgment? No, it's not. Well, the statutory site is on the judgment, the statute of conviction. But New Jersey actually keeps their penalties in a separate provision so it's not referenced on the New Jersey judgment itself. And a lot from the... So the judge's law court would have gone right to that? Perhaps, Your Honor. But my point was just to say as a matter of chronology, the government had no indication from the court at that point that it believed that it was a factual issue. And so there would have been no signaling from the court that would have encouraged the government to ask those questions. That was done on the government's own initiative for whatever reasons it may have had. And why does it matter? You said there was nothing presented yet on the substance of this New Jersey law. Why does that matter? Because at the time judgment was reserved on the Rule 29 motion, that's what was before the court. Just this bare conviction. And so even if that was enough, if this court believes that that was enough as a matter of law to make that determination, I believe there was still a requirement that the judge properly instruct the jury to say this is a crime punishable by more than a year. And without that instruction or any other competent evidence, there's nothing on which this court can reinstate the judgment. And so we think So that's just back to the is this a matter of evidence or is this a matter of law? Well, I think, Your Honor, even if it's a matter of law, there has to be an instruction to the jury about the question of law where it's baked into this bigger question about falsity of the statement. It's not just that that finding or that legal determination by the judge would be sufficient to check the box on that element. And Burroughs I think speaks to a wariness on the part of this court or even a district court acting after a jury verdict to supplant what they... I'm just not following your argument but it seems like to me that it reduces to well, the judge made an error because he did not make a determination of law and because of that error he didn't instruct the jury and because he didn't instruct the jury then his decision should be affirmed. I think even if not affirmed, this should at the very least be sent back for a new trial because I don't think that reinstating the judgment in this context is appropriate because there was a flaw in the jury instructions. And so there was nothing on which there's nothing in the record below that would support the substantial evidence that on the jury verdict about the false statement because that's just lacking on this record. So we would ask the court to remand for a new trial. I wanted to say briefly on the question of knowledge just that there's this inconsistency between Agent Cato not being allowed to testify on the penalties and somehow using his statements to Mr. Fulton to charge him with knowledge that he was a felon. Ordinarily in these kinds of cases the government introduces a plea colloquy from the prior conviction which addresses both of these questions and so it never has to come up. There you would establish both the statutory penalties that apply and also the defendant's awareness of those penalties. The government elected for whatever reason not to do that here and so the only evidence that they put on of knowledge was this statement by Agent Cato in his testimony and the government like I said has not challenged and confirms today that they're not challenging the court's refusal to allow him to testify because of his lack of expertise in New Jersey law. This is a task force officer based in Coltsboro. I can't remember at what point this evidence came in that the defendant and this Mr. Fulton this was his 10th or 11th venture out to a gun dealer and each time he got rejected and could the jury have inferred from that that he was rejected all those times because he was disqualified as a felon? No Your Honor Your Honor for two reasons. One is that when the NICS system reports back a result to the sales clerk at a gun store they are not told the reason for the denial and so there's no way that a sales clerk would have known to inform Mr. Fulton that he was denied because of a prior conviction. What is more I will say that as a public defender most of our cases involve guns and I can't recall a single other case where a client tried to go into a brick and mortar gun store so I think his repeated attempts to acquire a firearm lawfully are actually powerful evidence that he did not believe that he was a prohibited person under the law. That kind of strikes me as just like the argument on the other side you can argue to the jury that someone who has been convicted which the Supreme Court says is in itself powerful evidence that someone knows that they are a felon one side could argue all these repeated denials surely reminded him or reinforced to him that he is prohibited from owning a firearm for this reason and then the other side can argue oh but he tried to obtain one legally surely that suggests he didn't know right but that those are factual arguments for the jury to weigh and maybe the jury credited they convicted him so they credited one over the other I don't see why that's an argument that that's not evidence that he that the jury could find from which the jury could find knowledge I think both of those things were in the record so we had both his repeated attempts and also the fact that the report that goes to the sales clerk does not inform the reason for the denial but we let the jury draw inferences from circumstantial evidence they don't have to have written report saying he was denied because he is a felon for the jury to conclude that that's enough to convince them that he knew what he was saying was false. I would also note in the vast majority of other cases there is introduction of the plea colloquy sometimes there's evidence that the particular defendant had seen the judgment that's introduced none of that happened here and from the four corners of the judgment in any case the word felony is never used the penalty he received was only 13 days time served plus two years of probation and there was no reference to the applicable penalties for Mr. Fulton to have seen or absorbed he also when Agent Fulton said that he was a felon came back saying not I understand yes I agree with you he said I have a meeting with the government and who knows what to draw from that but it's not an admission by Mr. Fulton that he knew he was a felon so we would ask this court certainly not to reinstate the guilty verdict but at most to remand for a new trial thank you very much Ms. Englander you've got some thank you your honors and I apologize for going over last time I didn't realize it was counting up and not down so I'll try to be shorter here first I just want to respond to the point there does not have to be a jury charge on this question I would point this court to the circuit's decision United States versus Jenkins in that case the government introduced a conviction document that said that the conviction was a class 3 felony the jury came back with a question about what were the maximum penalties for that the judge then instructed because the judge said this is a matter of law so certainly it could be done that way as well it is a question of law it didn't need to go to the jury in that way certainly it was the government's preference that that instruction be given that's why we submitted it but what happened here is that the government proved the factual element the jury convicted and that is sufficient in the government's view to reinstate the conviction on that basis second I just want to address the issue about the introduction of the plea colloquy that my colleague on the other side referenced in our view if the government had introduced a plea colloquy from that prior the prior conviction that would have gone to the defendant's knowledge certainly it would have been one way to prove it it's not the only way to prove it and the government put in other evidence that the defendant knew that he was a convicted felon but that still would not absolve the district court of its obligation to make the decision as a matter of law whether that conviction was in fact punishable by more than a year in prison so the fact that the other court might have read the court in Jersey might have read statutory penalties that is itself doesn't that would be evidence of knowledge but it doesn't necessarily go to what the court still needed to decide here your colleague's argument is maybe a little different than I thought it was going to be too but as I understand it the argument is moving away from whether it's a question of fact but how could the jury decide that the statement was false if something before it didn't say the crime was punishable by more than one year so is there any basis without a jury it may be that the judge can decide as a matter of law that the statute is punishable by more than one year but the jury's got to decide it's false and it can only say it's false if it has something that says it's punishable by more than one year and what is that in this case if it wasn't a jury instruction sure so agent Cato did testify that the defendant's conviction was a felony so that was before the jury the jury had and then the jury again had the judgment which showed that he had been convicted of that crime it also so I think the jury had enough to decide the factual component of that element that it needed to decide and it did make that decision when it rendered the verdict and it would be the government's position then that as a matter of the fact that there was perhaps an error in the instruction that would that would still be just a matter of law and so for that reason this court should reinstate the jury's conviction unless there are any other questions I'll just ask that thank you very much counsel we'll come down and greet counsel and then move on to our next case