solution for distribution yes your honor so let's see evidence of of that in this case i think the facts show that we have a very small amount of marijuana only just about an ounce of marijuana involved  three small bags of marijuana which would be consistent with personal use and containing two different kinds of marijuana and the total street value of the marijuana was only one hundred fifty to two hundred dollars and there was also testimony at trial of the defendants wife  distribute this marijuana so this is entirely circumstantial case and i think in response to question it's also important to stress here that the text here isn't whether you know reasonable jury could have convicted him it's whether any reasonable jury could have acquitted him and so what we really have is a case here that's in the middle it's not on either string with there's so much evidence that is overwhelming or not we're not attempting to argue that no reasonable jury  convicted him it was impossible for a jury to convict and we're not arguing sufficiency of the evidence here and what we're arguing is that this is a case that's in the middle where it's clearly in the province of the jury to make a decision whether this was a case where they could convict him on possession or personal use no she was not but that is tied to the separate issue that's under appeal in this case which is that mr thompson was further on denied the right to a fair trial in this case by denying him that they'll need to have an expert witness testify in this case that expert witness would have testified that the amount of marijuana and the usage of the scale in this case was consistent with personal use that containing the marijuana in separate bags and having different kinds is also consistent with personal use  purchasers of marijuana to carry scales with them so that they're not ripped off when they're making a purchase of marijuana i'm so his testimony was narrow narrowly tailored to address to all of those issues on which our position is that he was qualif testify given his extensive experience in the field of marijuana having studied it since one nine hundred eighty eight having published on the topic and having testified as an expert witness and approximately ninety five or one hundred cases the court preclude him from testifying because he had no experience in law enforcement was that the primary reason was some other reason why i think there's two different positions that are are brought forth in the briefs and it's our position that the reason why the court way the government argues that he made three different decisions and we permit me explain our papers that we do not believe that these were explicitly made but even assuming that they were made we think that they're insufficient the first one is being that there wasn't a sufficient factual basis for the opinion because he had met the defendant because he had not met the defendant or discussed the case discussed the defendant's usage patterns with the defendant partner testifying we would take that the information he was given regarding the amount of marijuana that was its usage and if that was an issue the types of marijuana and this and the fact of the scales i think the second i think the government argues is that because of mr conrad's political associations that he was somehow unqualified and we argue that that goes to bias and that's something that the government would be fully able to cross examine the expert regarding at trial it would be something that the jury  ll about the good things that marijuana does according to him but he didn't know the difference between what a person on the street uses a person from you maybe a user expert but he's not a marketer expert i think the comment that were made by the court was that he wasn't someone with law enforcement experience and it's argued that that is too narrow of a view of the type of expert taken as part of the record in observing law enforcement officers testify in being involved in criminal cases so he does have some experience in that area and secondly his testimony again was limited to the to the four areas that i  specified and finally there were factual findings made by the judge several of them that this is this was a witness who knew a lot about hannah that's who someone who has a lot of experience in the growing processing of marijuana and also a lot of experience in the purchase and personal use of marijuana and that's on  page one forty four of the record and i think that those factual findings are sufficient to make him someone who could testify regarding exactly that the person the personal usage of marijuana in this case i think throughout time you want to t possession rather than possession with intent to distribute the government believes that the evidence in this case would not support a finding by rational jury of simple possession for two reasons the first is that there was no evidence in this case personal evidence that the wife testified to was called there is no evidence of personal use i think there was evidence of personal use the wife testify to it in that evidence while i polish eyes if i overspoke your honor what i was getting at but  denominations of his car twelve hundred dollars worth of cash of various nominations on his person the fact that there were three there were that the marijuana was housed in various bag going to talk o bell to go bag there were three bags of marijuana two different types was an empty bag the fa scale that was there there was a gun within reach all of that evidence will be strong evidence you know that you know you can argue to the jury that from which you can infer the position was for sale but that's not the only reasonable inference from the circumstances well the white testified that he was using marijuana four or five times a day that he was always high officer lead so in his robe in the rebuttal part of his testimony stated that he encountered the defended that night no evidence at all that he was that he was high he appeared to be sober officer which was was it and that's what i think what i was getting at and i guess i apologize if i overspoke about the fact there was no personal use as least as to that night the other point that i wanted to make regarding the lesser included instruction issue is in rereading people  that decision actually and it occurred to me in reading that case that what we're talking about the lesser included instruction is a violation of federal rule of criminal procedure thirty one it's a statutory violation the supreme court in keevil actually noted that there was not a due process violation issue that this is not a constant an error of constitutional magnitude as a result of that both the defendant's request for a harmless this evaluation that's basically a structural error automatic reversal and even the government's request for an analysis of harmless beyond a reasonable doubt appear to be the wrong standard to be used when there are non constitutional errors a rules based errors which this appears to be the test is whether it's more probable than not that the error was harmful which is the lesser standard than the harm  beyond a reasonable doubt and the government would submit that even if it's possible to conclude based on the vice testimony that a rational jury might have or could have concluded that he was engaging only in civil position possession that it's not more probable than not that they would have done so and that even if this court concludes perhaps in a structured was warranted that it did not rise to the level of reversible error as a violation of rule thirty one now with respect to justice she was question about the expert the district court's findings in th were not exactly clear as to the precise basis upon which she was ruling at the early part of the trial he talked about the fact that the defendant had not taken the stand but the court went on to hold of what you're hearing but he also mentioned that later he did he mention it mid statements about the fact that the defendant needed to testify first lay a foundation we're not have provided a basis to exclude the expert i think we can see that is also incorrect the government's argument here is that the district court at a minimum relied on three different reasons and that this court court and he also mentioned as well they didn't have experience with scales and guns and drugs so the district court appeared to be getting at the fact that that while this expert knew about personal use this expert did not know the other side of the coin did not know about distribution  findings on appeal and if you knew only about the personal characteristics we use and did know about the characteristics of distributors in other words you know about the user but not the retailer shouldn't you be able to testify these are consistent characteristics with use does he have to also say and they are inconsistent with characteristics of distribution i think what the district court was getting at with respect to that was the fact that testifying soley to the this is considered personal use because i talk a lot of personal users would not have been helpful to the jury that point out that they would have been helpful to the jury could have been cross examined yet you don't know anything about distribution that's true and the jury may have accepted her or not accept it but the fact that some relevant evidence can be procured from this witness should be to the judge but what i think that what the judge was getting at is that this expert did not have the threshold at that that that type of testimony that type of evidence was not something that needed an expert to testify to in fact and as with respect to those various areas that the expert was going to testify to the defense argued them just solely on the basis of the test of the evidence that was presented at trial about the fact that sixty to seventy cigarettes was consistent with personal use that the scale in this case was not inconsistent with personal use and that his qualifications only as a personal use to not provide any additional sort of expert knowledge that would have been helpful to the jury that the jury could not have inferred on its own solely on the basis of argument and while the district court again i would not have at all been abusing his discretion in allowing the going on you know will will will destroy him on cross and in an instant or something like that right i don't read it i think there was some comment about the fact that he would be quote unquote destroyed on crossed or something to that effect but i think that what if the government ultimately was arguing to the the court various factors as to why it was appropriate to exclude this expert but i think the government did acknowledge that the court could go either way on it and the government acknowledges the same thing here and that's why the only real question and what i'm arguing to you is simply that the court did not abuse this is rational keeping the court circuit courts in those cases found that it that it was proper to it was reversible to not have the lesser included instruction of so even even without the expert we would submit that there was still at least a doubt as to whether that marijuana was possessed for distribution or for sale and then i just want to briefly respond to that issue as to the standard of care that should be applied to the western clit instruction there's been several different standards that have been proposed to the court i think ultimately error which would be structural error alternatively we decided to the only one circuit case that's on point us we crutchfield and in that case the ninth circuit held that it was reversible error then the proper procedure was to automatically remand for a new trial with a properly