debate here that there were a clearly erroneous set of instructions given to mr plans trial what's in dispute however is the effect that those erroneous instructions had on the jury's decision to convict mr p knowledge of phones that has jury been given a proper instruction including after each use that knowledge of films that element they would have been told that the government needed to prove this element beyond a reasonable doubt moreover it would have then turned as all juries d to the evidence presented to them in trial and would have seen nothing speaking to the question of knowledge and from that under those circumstances your honors there's a reasonable probability that is your would have rendered a different verdict a verdict of not guilty importantly this is distinguishable from  mitzi is there was that something more specifically a trial the government offered and showed to the jury for example court paperwork with instruments uses name on it they showed docs and such as a pleading charge relating to the crime of trust as there was testimony at mr mann just as trial about that documentation the government argued to this court on appeal that had mr mansi as a jury been given that proper use and sure they still could have found knowledge of science that is because they could have looked at the evidence at trial and found that knowledge mr point's case is wholly different had this jury been given instruction there's nothing that they could have looked to the find that knowledge of films that its own and this is why your honors the government relies so intensely on the pre sent investigation forward in this case which i believe brings the fundamental question to bear here and the p s r we submit is not within the proper scope of this court's review today for this reason we look closely at cases from this court d in the supreme court case like jones and holmes involving erroneous jury instructions and the effect of those instructions on the trial we see that the question presented is to what extent that the iranian instruction infects the jury's decision to convict and in those cases your honor this court has taken a retrospective look at what actually occurred at trial what evidence did the jury consider at trial and how would that jury on the basis of that evidence that they saw have convey or have made a decision on the basis of a proper jury instruction now there's an important reason in your honour's that the scope of this review is tailored and limited to the evidence actually present and that is because defendants like m  absolutely your honor i do not believe that that speaks to the issue of men's ria at issue in receive this report make clear that something more is required and that something more is not simply the stipulation anymore there must be actual evidence of the knowledge and this nationalization alone if i could interrupt just to refocus the question it's not whether you stipulated to awareness or knowledge of status it's that the evidence was circumscribed by virtue of the old chief and that the government in your argument focuses on the evidence that was presented at trial that evidence was any evidence of his status as a felon was kept out by virtue of the stipulation of all  that's correct and into account in resolving these we hafe well i think the critical issue here is that regardless of why the evidence was can scrub what evidence the government might point to such as the p on appeal if we look at this court's precedent involving erroneous jury instructions the focus is always and only on the evidence presented at trial because to speculate about what evidence was circumscribing could or could not have come in doesn't answer the fundamental amendment question what we have here your honor is a case in which the government simply did not prove every element of the crime charged beyond a reasonable doubt there's not evidence showing that in the trial record and that simply isn't complete conflict with the six  that no defendant be convicted absent that showing mr point is currently in prison convicted of a crime where the government has made that showing and that is specifically the issue that this court should address now whether the government can point to information in the p s r which speaks to criminal history simply doesn't address the principle in kargil effect of what happened at trial there's no evidence that a jury has ever seen regardless of what could or could not have come in if we look at the evidence actually presented in trial it doesn't meet the burden on every element of the crime charge and for that reason mr poynter convictions and is in direct contravention of the th amendment right and had his jury been given a proper instruction which included the knowledge of phones that  was that purpose unfairly prejudicial and here the trial record in the government's brief confirms that the overriding prevailing purpose of this evidence was to show the jury convince them that mr pauling was a drug dealer gauged in a drug transaction his or us to associate mr point i'm defended with this a list activity of drug dealing in a case in which no drug crimes charges unfairly prejudicial use a major honors that the best evidence of this perhaps comes from the district case that had nothing to do with drugs and it's difficult to reconcile this analysis with what actually occurred at trial where the government continue to use it to put forward directly a narrative that mr plame was a drug and if you look for some reconciling identity as a drug dealer at his trial to the jury moreover in schmidt the defendant was found with as this court described quote large quantities of drugs well the officers came to his house with a proper rest where they walked in and found large quantities of drugs and mr this is important because it shows that the supposed a drug of an infamous two points cases both far less spread far less probit than in the smith case because it's unfounded and disprove it and moreover it's more prejudicial because it puts forward this misleading sentenced prior to receive but he cannot establish a plain error affecting his substantial right the government requests that the court look at the whole record as it's done in numerous past cases post receipts to determine whether there was a miscarriage of justice an impact on the defendant's substantial right here the defendant has not claimed that he did not know he was a felon and he has offered no credible defense that he planned to pursue at  trial had he no one of the received knowledge element this makes sense when you view the record as a whole it makes very clear that the defendant knew of his felony status at the time of the trial in this case the defendant had ten felony convictions a number that this court precedents established would impair if not completely bar ignorance of knowledge defense he had served multiple terms of prison imprisonment that exceeded one year one term with three years duration on five separate occasions he had been sentenced to sentences exceeding a here and then finally as judge sykes noted he stipulated at trial to knowing and start not knowing he stipulated to trial consistent with old chief to his felony status he raised no questions about his felony status he never raised before or at trial a knowledge based defense it's a fair inference and not the only in a fair inference from the stipulation at trial that he in fact knew of his felony status given this record it is well established that the defendants cannot show an impact on to substantial rights or that it affected the fairness or integrity of these proceedings there also was no error on the admission of four for the evidence in this case the district court was well within its discretion in allowing the government to introduce evidence of the radio dispatch reporting that four men were engaged in a narcotics transaction in the mcdonald's parking lot when the police arrive to that parking lot the ford men dispersed with the defendant ultimately breaking into a run and then the police recovered four hundred and eight dollars in cash from him upon his arrest this evidence of stablish the defendant's motives for possessing a firearm either to protect the narcotics deal or to protect the large amount of cash that he was equitable discretionary balancing of the equities here it limited the amount of evidence that the government was entitled to present at the trial excluding the audio nine hundred and eleven calls finding that those would be too prejudicial and limited the government to the  i'm sorry this got very a very small amount of attention at trial that the officers testimony was a few lines of transcript in the trial transcript that exceeded about five hundred dollars pages and for the same reason that there was no for a three error any error at this court where to find one in the admission of this evidence would be harmless the officers testified based on their eyewitness observations as a defendant possession of a firearm throwing it into the bushes recovering it within a minute did the i understood the government's theory of this a felony or a felony possession prosecution was that this was in fact a drug deal and he was carrying the gun as part of a drug  deal not that that he was just protecting the four hundred dollars he had in his pocket i misunderstand the theory of the prosecution so the government argued in its closing both of those aspects of motive so it argued that if the defendant was engaged in a drug deal in the parking lot that he had a motive to possess a weapon and that the cash even standing alone provided a motive for him to protect the money and  so you know both of those were offered in response to a defense argument in closing that he had no incentive to possess a firearm the government argued both aspects of that and i think that they both hurt provide a reason for th mission of this course of conduct that there was no evidence other than the dispatch which was conveying what i understood to be anonymous tips that there was drug dealing going on in this parking lot that is correct your honor that is correct and the government certainly certainly acknowledges that that's a distinction between this case and schmidt which involves you know the actual seizure of narcotics that did not exist in this case it's a it's a valid basis to distinguish the court's precedents the government respectfully cements that it's not a dispositive basis to then wish those profit and for the same reason that the evidence was l invited the jury to speculate based on that if that since there was no hard evidence of drug dealing so it was extremely weak and it's probably value i think that's what the defendant's argument is drug deal going down the government acknowledges that concern the circumstances however taken together not just the dispatch but the defendant's response upon the  entering the parking lot the fact that all four men dispersed in different directions the defendant broke into a run corroborate that there was something untoward happening in that parking lot and then the recovery of cash for the robbery that so the government acknowledges that the inference of drug dealing from those circumstances is not the only conclusion that could be drawn but submit that it is a fair and reasonable conclusion and given that it's played such a small part of trial and was not argued in the closing as mota intel the defendant argued in his closing that he had no incentive that it's done renders the error not prejudicial and ultimately harmless on the trial it does not your honor this court precedents including in schmidt an elder recognizes that that person participation in a drug deal a reason to protect himself and or his money provides a gun it's not a propensity inference the government to not argue that because he's a drug dealer he's more likely to commit other crimes including the crime of drug possession it's argument which is limited to one page and it circumscribed to motive arguing that if the defendant was in fact engaged in truck drug trafficking that would provide a motive it followed that up by arguing that the government in fact is not required to prove motive or prove that the defendant is a drug dealer or any of those things given the eyewitness testimony of stablish saying that he possessed that weapon and therefore the error would be harmless when you view this record as a whole yes your honor there is a theory flight discrepancy between the two officers testimony one said that he saw one person in the alley the other one says that he thought to two other people in the  alley so it may have been a difference of their perspective the time they arrived at the alley but it's important to note that both officers consistently testified that they saw the defendant throw the weapon in question so they were right behind the defendant they saw him raise that weapon and then ultimately throw it into the bushes and when they entered the alley they immediately put cuffs on the defendant and then recovered that gun so that the eyewitness testimony is strong and so far it's creating that chain of custody over watching that gun in the defendant's hand being thrown into the bushes and recovering that g that a drug dealer curd be forgery in a case where there in fact was no drug deal from the words of the police officers themselves and the government argues that this was a minimal effect of the government's case but at the same time knowledge is that one of the central arguments that the government closed one of its final concluding thoughts to the jury was that ladies and gentlemen mr pulliam doesn't want you to believe that the money in his pocket was the product of a drug drug deal this shows the century ality of the drug theory to the government's case they were insinuating that mr pauling was a drug and threw that insinuation affected great prejudice upon the defendant it's difficult to extrapolate between the insinuation that he was a defendant and the fact that he wasn't at all and the situation alone in this case had a very unfairly prejudicial effect on the outcome of the trial and moreover it wasn't an open and shut case as the government suggests for example there were no fingerprints on in the gun and the jury specifically asked about this after multiple days of deliberation in the context of this uncertainty it's difficult to think of something that would have more of a significant impact on the more change the complection of the narrative of the case than to suggest that the defendant was a drug dealer williams to which the government cites the court does take into account that those cases present a very different question and williams for example judge said he'd make clear that the question there and a case where the defendant has waived your six member jury right  not the effect of an error on a jury's verdict but the effect of an error on the jury and the defendant's decision if we guilty and so the court tries to suss whether there's a reasonable probability that the defendant would have made a different decision before the year p s r does speak to that issue because it tells the court something about the defendant's decision making process is a very different case mr pulliam is not waive the th amendment right which guarantees you should not be convicted of crimes of the government is not proven every element of  reasonable doubt to a jury and that simply did not happen in this case it's important though your honor if we listen to the government's harmless error analysis with regards to for three evidence we see what is common as it was an alleged error that occurred at trial and the government response there was harmless on the basis of the other evidence presented at trial trial errors are considered within the context of what actually happened at trial it would be strange indeed to point to something outside of the trial record and no impact on the trial itself to argue harmlessness that's precisely what the government now does with the p s r that's a proper what we have here is a case where the government has not proven every element of the crime charged beyond a reasonable doubt to a jury mr pauling is sitting in prison convicted of th crime and to me seems very quintessence of a th amendment violation had a proper instruction been given with that knowledge element that was not proven is a reasonable probability that the jury would have found mr pawle him not guilty and constitutional violation would not