he opened the trunk to retrieve a license plate when the officer was standing next to him and that was when the officer made certain observations relevant to the weapons with which he was charged and there had already been a stipulation with regards to his license plate and the rifle yes prisons i think well this was an unusual case because in considering your question we presented the problem presented a natural witness who testified that she was the legal owner of those weapons and that she personally put those weapons in that vehicle during the time it was an operable which was for some time prior to the arrest and that i don't understand it seems to saying you can infer perhaps that because there were so many weapons in the car clothing in the passenger area of the car that therefore he must have known that they presented nothing else and that has to be understood weighed against the fact that affirmative witness was says i put him there and i never told him that they were there i put him there because that was the safest place to put the weapons to keep them away from my kids and  nationalised literally sitting on the kind that i don't believe there was any evidence or testimony that that actually was the case it was certainly in the area where both gentlemen were sitting and  a battery in there that those weapons have been in there for some time and that was her testimony but he knew he knew that the proper license plates were in the trunk so he knew what he knew at least something that was in the trunk well you know he i believe that it was question of his son putting the proper license plate on and perhaps the plates were in the trunk while the vehicle was inoperable we never got that far in terms of the case or what was presented for purposes of the record what we would with the pres instruction have at it and i guess i'm asking that question in a slightly different way to give you a chance to personally make i'm not sure i understand what necessary element sort of analytic decision there or he was near the weapons but that does not necessarily connect him to being a participant or actually knowing that those weapons were in the trunk and then the proximity issue was important  one of the testimony from the the officer that retrieve the weapon was that it was facing back away from them but that does not mean that it was not in the area he that they were in but nevertheless the government's entire position and entire argument is an end france argument and we don't think that that's enough evidence to have justified the district court in denying the palace request for the instruction i change gears and ask if you can question one of the four weapons was not charged in the mr sands and his appeal and his briefs does raise that as the second point which he only preserves for the future in case there is some kind of reversal from the supreme court  honor i think that the fact that we presented to affirmative witnesses i think was not given sufficient credit by the district court and when the jury instruction colloquy was taken place with counsel i think it's particularly interesting that the u s attorney twice agreed with the france attorney in giving them your presence instruction he was asked and he indicated that i'm not going to object to it that was the second time and it was only upon further comments by the district court judge with regards to there is no crime if the jury believes that the from this position once that statement was made that's when the  then said well i'm retracting my position we believe that the u s attorney's original position was the correct one because even now in hindsight and looking back at the evidence that was presented we don't see that additional evidence she she thought the gun was in the holster at the time that she put it into the passenger compartment and she put it under a blanket that was on the seat which really didn't ji with the officer's testimony as to how they found the gun next to the holster but not in the hospital and under a jacket defendant that the district court found in this case that under the defendant's statement of facts that a crime would not have occurred and therefore the mere presence instruction was not warranted as this court knows a mere presen instruction presupposes that a crime has occurred or is occurring and that the defendant is present but has no knowledge no participation in that crime in the instant case we have two individuals in a car there is contrary to their assertion in the reply brief there is no evidence whatsoever in the trial record that the passenger was a prohibited possessor now the court was aware of that but the jury was not that information never went to the jury so the court found that if the defendant was merely in the vehicle had no knowledge and no control over those guns no crime occurred and therefore a mere presence instruction was unwarranted because it didn't fit the facts or the law and on the other hand the court found that the other instructions adequately covered the theory of defense which was i didn't know the guns were there and i never started any control over them because i didn't know they were there so the defendant's theory of the defense was more than adequately covered by the instructions that were given by the court and with regard to what information there was because now i got t says that if the evidence is based solely on the presence of the defendant that he's entitled to that instruction in this case we had the defendant's long time live in girlfriend at mit that she was the owner of those guns she admitted that the defendant knew she owns all of those guns when she inherited them from her brother she also admitted that she put all of those guns into the car and then we have the defendant who is the registered owner of the car had been the registered owner for an entire year he was in possession of the keys and driving the vehicle he popped up in the trunk for the are open the trunk with the key for the officer which is what we see it reveal the two rifles in the trunk and he was answer that and that's because blakely deals west and upward departure under a state sentencing scheme whereas we've got an enhancement under the guidelines and i don't know i mean we're  presupposing that the court is going to find in such a manner and then don't know how the court's going to get there so i really can't i must do the analysis i can't answer whether it would directly apply to this case or not but i would submit that  on the current law the court should affirm both the conviction and the sentence and then if for some reason there is a change in the last subsequently defendant has preserved the issue to the extent that it's does walk right into the british right i mean in the sense that that probably made difference possibly yes