it please the court tracy dry spell assistant federal public defender on behalf of keenan joyner and bolan backcrosses united states the supreme court held that when a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy the former fifth circuit applied that rule in anderton to hold that when a when the instructions use a term of legal significance its meaning must be explained especially when there is a request for clarifying instruction this court's task now is to review did novo through the evidence presented in the arguments of counsel whether the district court's response to the jury's question during deliberations confused or misled the jury to the prejudice of the defense and in order to do that i think it's important to take a step back and see what happened in this case and that is that the government made a deliberate tactical decision not to pursue a theory prosecution which would naturally have lent itself to the set of facts and in fact there is a document that i found in my review of the record before in preparation for oral argument the government's pretrial brief in which they made explicit what is implicit throughout the trial and that there was an agreement and that the government made of its documentary twenty nine the government agreed not to introduce a statement that the defense had moved to suppress and which mr joyner according to the government's memorandum stated that he had discovered the gun in the car and touched it to push it under the seat after he realized it was there and in exchange for that agreement the defense would not argue that this car had been used the day before in an armed carjacking that our client was not involved in and that are and someone other than our client had not been arrested for so as the case proceeded to trial it was all about whether or not the jury should believe the testimony of detective garcia that he saw the gun in mr joiners hand the government's opening statement takes three pages of transcript and it is all about garcia our opening statements a little bit longer and it is all about the reasons why we maintain that detective garcia's testimony which was on corroborated by the numerous means we might have expected it to be corroborated should not be believed the trial was very short it was four witnesses it was over and done in less than five hours and after three hours of deliberation the jury returned the question and there's a heading of that clarification regarding possession and possessions the only issue in this case we stipulated he's a felon we stipulated the gun affected commerce we didn't dispute it was a gun we here by request further clarification of actual possession as defined in the court's instructions to the jury please explain or provide additional clarification or explanation on knowingly has direct physical control of it clarify direct as it pertains to physical control furthermore does possession imply or not imply possession of the vehicle whether on the vehicle or in the vehicle it was very clear to the defense counsel who tried this case that the jury was asking whether they could convict mr dorner notwithstanding garcia's testimony that he saw the gun in his hand based on the fact that the gun was and the seat of the car the alternative theory would have been that the gun was under the seat of the car the whole time when mr joyner and his brother were doing a lot about the testimony was that the  the defendant with the firearm in his waist if i have it right he took it out of his waist he had it in his hand he went to the car the door was open he leaned into the car and the gun then comes out he puts the gun in the car and then leaves the car and then the firearm is found in the car there after that's what he says right that slight he didn't actually admit to seeing him take it out of the waistband but yes that is correct your honor but the only question leaved it would be relevant would it not that he actually had the car on his possession in the car i'll be it for a brief or fleeting period of time your honor if your honor is asking about the government's argument that our instruction was incorrect because there was some relevance to it in the car we asked for the instructed to say the mere presence of the firearm in the car is not relevant the government takes out the word  and i think it is significant the presence of the firearm in the car would be relevant the military relevant if in fact they granted that it was possessed by the defendant while he was in the car or be it be relevant that he that the gun was in the car wouldn't that fact be relevant it would be part of a building block standing alone it would not be sufficient but it could be an off if they credited he had it in the car i have two points to the answer to that question your honor and that is i don't think that that is a fair reading of the jury's question because there was absolutely no reason for any rational jury to question the meaning of possession if they believed the detective joiner detective garcia saw the gun in his hand there's no need to even ask about the car he saw the gun in his hand that's actual direct possession by any standard definition and what we were never asking for the judge to tell the jury to ignore that split second when the gun was in the car but does not suggest that the fact the simple fact that it was in the car would be irrelevant when it wouldn't be irrelevant it would be relevant but not sufficient if indeed he possessed it and it was in the car at the same time we ask for the mere presence instruction your honor there's a post the judge had turned around and said how about if i give this instruction the mere fact that the gun was in the vehicle standing alone is insufficient to show the defendant actually possessed it but if you find beyond a reasonable doubt that the defendant actually knowingly possess the firearm while in the vehicle however briefly then you may find the defendant to have knowingly and actually possess the firearm actual possession means direct physical control of something on or around his person suppose the district judge said ok you want to complete an instruction that's fair accurate and complete that would that would have been ok by you it would have been fine the problem is that the jury would if i were the defense were i sure would have objected to that because it and b and c and d and e in such a way that it almost leaves to right i have objected even if you would not for whatever it's worth to you and there is case law that suggests that the that the instruction should not point in a particular direction but what i'm for wouldn't that charge born in a particular direction your honor honestly i was focused on the first sentence of the moment but let me go over to get the reason i ask it is because if the judge was to have done what you suggested she should have done it seems to me this would have been a complete accurate direct statement of the law the mere fact that the gun was in the vehicle standing alone is insufficient to show actual possession that's what you want but if you find beyond a reasonable doubt that the defendant knowingly and actually possessed the firearm while in the vehicle however briefly then you may find the defendant knowingly an act actually possessed a firearm actual possession means direct physical control of something on or around his person again you could have said that and you would have had a hard time saying that instruction was wrong but i tell you if i were the district judge and the government asked me to give it i wouldn't give that instruction because it seems to me it almost leads the jury to say boy there's a whole lot here folks but the problem was and i think this was the strategy decision that both parties agreed to and that was to avoid getting into the fact that we could have defended this case on the fact that it wasn't his car and the car belonged to someone else or had been taken by somebody else who we know how to gun because it had been used in a car it was the product it didn't the judge say the possession of the vehicle is not an issue in this case yes your honor in response to the government's instruction which was designed specifically to eliminate to separate the possession of the vehicle from the gun the government specifically objected to tying the to the instruction tying the president to the the gun to the vehicle and that's what makes this case unique because the government knowingly and tactically abandoned the theory of prosecution alyssa did an agreement from the defense not to defend against just talk about what the theory of was and what the theory of the defense was just to make sure and just stand it because you started out talking about opening arguments in closing having read them it looked like the whole case was about whether garcia was telling the truth or not when he said he saw the go and saw the defendant open the door and take it out and put it down wrecked if you look at opening and closing it you can't take this jury instruction out of context you've got to look at the case correct and it seemed to me that you couldn't tell what you wanted because if the gun was actually found in the car because it was found in the car right it was found on the seat immediately thereafter that tended forget about whether possession of the gun in the car it tended to or robber right garcia's question that i saw him put it there didn't it it  couldn't your honor but it could all right be consistent so it was relevant to say forget about whether you're ever possessed the carpet or anything it was relevant because amazingly this officer said this guy put a gun in the carmel in the hallway go and is right where the offices said he saw him take it out and put it you're your honor the jury obviously was not convinced by garcia's testimony because they were out for longer than the trial we argued the garcia testimony was not credible i know but that was the credibility here that was what the whole trial was about whether i found him credible i'd not and to i don't understand how this charge in any way affected that applied whether again or on the car the jury using their common sense when they're on it's own and the district court says go back to the this is an actual possession case i have charged you actual possession physical control the judge did not clarify to to a lay jury that is not trained in the law that there is a distinction between actual constructive possession at no point was this jury ever told that constructive possession was off the table this instruction allowed to the jury to convict on a theory so they were told twice the government had to prove actual possession agree to never mention could charge any understand what actual possession was your honor they asked a question about how they define it twice and says it was actually a direct physical control but the jury sent in and a question back in this is the enderton case this is directly like the enderton case and anderson it was an agent and the jury asked can a lay person be an agent and the judge said that's a factual determination go back to your instructions and the former fifth circuit said that is not enough when the instructions use a term of legal significance in there is a question you must clarify it the jury the first sentence of the question was we don't understand what possession means suppose the judge had said as i understand it the judge defined actual possession this way the judge said actual possession means direct physical control of something right yes your honor the fact we've approved instruction that goes beyond that and says actual possession means direct physical control of something on or around his person suppose the judge added that you're going ok to write and i think this goes to to the rule thirty argument or the reason for it is that we had to know what we were arguing before closing arguments we did not make any of the arguments we could have made if we had thought the jury was going to be permitted based on the possession the presence of the gun in the vehicle let me ask you the question this way and judge hall was alluding to it but i just want to ask it directly o wanted the judge to say the mere fact the gun was in the vehicle was not relevant right not at issue yes wouldn't it be relevant and in that sense at issue if for no other reason than it question that you put just bear with me please was judge we want you to tell the jury whoa the mere fact that the firearm was in the vehicle is not at issue by which you meant to say it's not something they had to fuss with think about apply consider but it seemed to me that it was at issue in that sense that at least it arguably corroborated the account of the only witness the government really had to to this was a one person case against you if they didn't buy garcia beyond a reasonable doubt they had to acquit that's correct they did they would convict but did this go to corroborate his account that the defendant put the firearm in the car well your honor i mean to the extent that this may be a semantic distinction i'm going to rely on the fact that we asked three times for the word  so it's the difference between mere presence and presence presence may always be a relevant factor but it's very clear that mere presence is not sufficient to convict that is what we asked for that is what the district court understood that we asked for and that is what the district court refused to instruct the jury this jury was never instructed that they could not convict on a theory that the government had chosen not to prosecute and then elicited an agreement from the defense not to defend against and that is what makes this case unique and that's why we need a new trial thank you very much direct physical control the same way that i possessed this pen this morning as detective garcia testified mr joiner possessed a firearm in his left hand near his waistband and as he headed toward that vehicle in a rush fashion and open the door detective garcia saw him again in possession of that same firearm as he dropped to his right knee in place the firearm under the driver si the same way that i might place this pen under the lectern all of the evidence in the case the testimony from detective garcia the testimony from the lookout officer who gave the take down signal and all of the physical evidence which includes the fact that the firearm was actually recovered from beneath the sea just as detective garcia said supports the jury's finding that mr joyner had s actual possession of that gun as the court has pointed out this morning the only arguments forwarded by the united states in opening and closing lead to that exact conclusion the evidence led to the same conclusion and importantly for this morning's analysis the jury's instructions from the court allowed only one basis for conviction and that was the basis that the jury had found based on not only the testimony of detective garcia but also the testimony of detective james and the may ask a question just a fact question in the in the record the testimony of the officer who saw leaned in with a firearm in his hand just marcus the officer testified that he personally saw the gun on two occasions and the defend its hand the first occasion was as he was withdrawing as if he was withdrawing from his waist he saw it in his left hand as he went toward the ground and the court will recall that the officer testified that he did a spinning motion as he went toward the ground the detective testified that he saw it again in his left hand as he reached toward the inside of the vehicle and placed it under the seat the detective testified that at that time mr joyner was taken into custody and that approximately one minute later the detective himself looked in the vehicle and saw the firearm partially sticking out from beneath the seat the detective also testified that as mr joyner ran toward the vehicle he called out fifty five and this brings us to the question of was there any evidence that corroborated this detective's testimony and there certainly was detective james the lookout who called out the take down signal saw two men in front of the car sensed that someone had unlocked the door using a key fob and then called for takedown at that time he too observed mr joyner run toward the driver side of the vehicle but he also heard something very important he heard detective garcia call out fifty five which according to detective james meant the man running to afterwards that's the case right here and i would add to that that it also includes detective james who candidly says i didn't see a gun who testified however i did hear the call out for fifty five which to me meant gun up direct the court specifically to where detective james says at page one sixty one of documentary fifty two that he heard garcia scream fifty five and also at page one seventy six of documentary fifty two where detective james stated that he concluded based on hearing fifty five that that means this guy has a gun and he can possibly use it let me ask the question this way what do you suppose the jury had in mind when they said to the court in their note does possession imply or not imply possession of the vehicle whether on or in the vehicle what were they getting at there as best you could tell your honor it's it's difficult to speculate as the question acknowledges but it appears that they are at least considering testimony regarding the fact that the gun was recovered from the vehicle and perhaps that when the gun was recovered from the vehicle the defendant was not sitting and if so why were they concerned about whether possession of the vehicle was relevant isn't that a question that seems to suggest that they're operating on a theory of what we would call him a law constructive possession no your honor i think under the facts of this case and this is pointed out in the marriage in the united states of america's brief the facts up until that point would indicate that this individual did not have the power to return to that vehicle to recover the firearm because he was taken into custody outside the vehicle just after placing the file but remember they hadn't heard a class a construction a constructive possession would mean you you have the power and dominion over in the capacity to win the right to reclaim it at some point they did know all that stuff and that hall they knew is that the officer said he had in his hand the gun is found in the car afterwards and they want to know whether possession of the vehicle is of some moment imply or not imply possession of the vehicle whether on or in the vehicle it's clear that it's kind of modeled in the way they were sort of groping for it but would it not be fair to suggest that they were in their own mind raising some kind of constructive theory even though they didn't know what constructive possession meant your honor in response i wouldn't go that far to think that they were thinking of the legal concept of constructive possession but it is clear from the question that they had some question in deliberations about how they should take into account possession of the vehicle and in this case the district court's response to that question brought the jury back to its sole focus the court narrowed the jury's analysis and said members of the jury you are to consider whether or not mr joyner had actual and so possession of this firearm which was the basis of the original so your answer is even if they were operating in some vague way on a constructive possession theory relating to the car the judge addressed that in two way one saying possession of the car was not at issue and t gave me this fight again where you said james testified he heard the fifty five you said you gave me a documentary fifty two what was that page site where james said he heard garcia say fifty possession in writing yes as well as giving it orally yes your honor the the original jury instructions by agreement of the parties included the phrase possession which was defined as and over the court court set up to the jury so they had they didn't have to just try to remember they had this definition of actual possession in the jury room yes around and to underline the the court reasoning here i would like to point out also that a documentary fifty three the court actually explained to the parties before issuing its response to the question is reasoning and the reasoning was very clear that the jury should only focus on actual possession and there the district court stated quote and this is that page seventy two and seventy three so they have to make a finding based upon these facts that whether or not mr joyner had actual possession of the firearm in making that determination that he did not have possession by accident or unintentionally the word knowingly means the act was done voluntarily and not intentionally and not because of a mistake or accident so that is what they have to find the court's response to the say whether that was before or after the takedown and that is at pages one seventy one to one seventy two a document or was it before they went into the car that's what he could not say he was asked that on cross examination and he could not didn't he couldn't say that he saw the gun before it was in the car at least i want to make it very clear the courts the courts response to the jury document thirty seven only did not specifically limit the response to actual possession the the jury's initial question again it's heading was clarification regarding possession and the court responded the possession of the vehicle is not an issue in this case the issue before you was whether mr joyner possessed the firearm and ammunition right but i relevant judge one step further danger she referred the court she referred the jury back to the original instructions but in the anderson case this court or the former fifth circuit held that's not sufficient when the jury asks for clarification of a term of legal significance i wouldn't  sufficient if the judge referred them back specifically not just to the instructions in general but to paid eleven for the definition of possession where when you look at it the judge defines an actual possession and only actual position because the very first sentence of the jury's question a document thirty seven is we hereby request further clarification of actual possession as defined in the court's instructions to the jury the jury after a five hour trial had been sitting with these jury instructions for three hours and had been unable to answer but you see the problem is even assuming are you when though all of that is right i asked at the beginning what should the judge said you have to concede that if the judge had said what you say what you asked the judge to say that wouldn't have been correct but it wouldn't a been correct that the mere fact that the gun was in the vehicle was not it is you because in some sense it was at issue to the extent the jury might have believed that he possessed the firearm while in the vehicle that's what that would be would be an incomplete way of answering the question and if you try to give a more complete answer as i tried to do at the outset it seems to me you almost get into more trouble i disagree your honor they tell me rights of only that i disagree that our request was was incorrect there was a difference between mere presence and presence we were just telling the jury they could not convict on the mere basis of the gun in the car alone it was very clear to us that's an argument that's an incomplete statement of the law well i would point the court to the stevens case which is a fifth circuit case i believe from one nine hundred ninety four when it was clear that the jury was going down a road of conviction that was not available to them the court held that the district court was obligated to tell them you cannot convict on that basis and what we asked and it's very very clear it's a three or four page colloquy we were very clear with the district court we think they're going down constructive possession they need to be told they cannot argue construct they cannot convict on constructive possession that was very clear to us that's what the jury was asking and it is equally clear that is not with the court answered this was a one day trial mr joyner is now serving nearly seventeen years and you don't think it's an answer to and i would point the court again to the anderson case there is a term of legal significance that this jury explicitly told the court they didn't understand and they asked a question in their top juries are told to use their common sense and your common sense in this case suggests constructive just quote does possession imply possession of the vehicle on the vehicle or in the vehicle right before that like you say the jury says kyra for cation regarding possession we request clarification of actual can't i mean i just wonder if it's ambiguous there's one construction that might help you you basically a scion we're not talking about the car at the car is not an issue so that kind of tell the jury it had to be what garcia said or nothing it did not your honor and the court can see that that's what the government wanted if the court looks at the colloquy where they were discussing this the government specifically object i'm looking at with the jury i understand your honor but the think that's what we need to see here what are they asking and what is the response not what either side want but the response stas an address the presence of the firearm in the vehicle it merely states because there was evidence that this car had been involved in an unrelated even  stronger than that he says possession of the car is not an issue in this case the only issues where they possess the gun doesn't say you can't use the car as a way to get him in the gun you know you've got to show that he possessed it not that it was in the call why is that not what he's telling the jury well i can just tell the court that both the district court and the government didn't interpret it that way and it was deliberately phrased not to tie the two events together it was