government charge mr mitchell with possessing a three fifty seven group wagner at the carlisle location the basis for the nine twenty four c was that this gun was possessed in connection with drug crime and that drug crime is identified in the indictment as the possession with intent to distribute crack cocaine and it's the defendant's position that there was insufficient evidence what happened in this case was that after law enforcements from valence at a local level the attorney general's investigators obtained a search warrant and executed that sort search warrant on two locations on july twenty first two thousand and ten that the government focused on evidence in what was described as the second floor front that were and what was found in the second front four bedroom was as follows there was a photo in that photo was a candid photo and was a picture of mr mitchell and another person who was not identified there with ammunition that fit the gun the three fifty seven ammunition was also found in that room and marijuana was found in that suggest that he had knowledge of that god one witness alfred jenkins was asked if he had ever seen a gun in any of those locations and his response was that the only place that he had seen a gun was at the third street location is the best evidence that he had a key here he had a teacher he didn't have the picture is pictured was inside the house in various places so there is one photo i think that what's important is that there actually are some factual errors in both the district court's opinion with respect to this issue and the government's brief the government's brief suggests that there were cocaine and crack also found in that room which is accurate it is a brick in accurate is incorrect so he that issue was raised it was raised and him post trial according to rule twenty nine and the government wrote a written opinion we submitted that opinion as a special case because it was under seal ok and so going to guns of the other two residents they see him coming into the business using a key to some kind of control over the premises we would never keep to it pictures in the room why isn't there enough for a few reasons one with respect to the picture it is a picture of him and someone else there's no evidence that that means it belongs to him the evidence is that it is not what is true in the muslim dog because warren warse in boston is his uncle someone identified as data is either a nephew or a cousin and there was also in one found at that apartment at the time of the execution a search martin was let go so you have all these people here including relatives and obviously there's testimony that they're dealing drugs together and and the question about whether or not you can use the possession of a gun at other properties i would say you absolutely cannot there was no for for be motion practice here it's clear propensity evidence this case that's true and i and i don't believe the jointer was actually challenged but i'd be even if something can be joint i don't think that that means that you can use evidence of possession a gun at one location to support  possession of a gun in another location and for the sake of argument if if i can take from your faces if you disagree with me then what's important about this location is where the gun is found one lawson who lives there and there is that they say that his property is found in that room including the photo the there are the testimony was the officer who was asked they didn't find any clothing that he was aware of there aren't there is no evidence that any crop think that the testimony was that he would have stayed at the first house the most because of the fact that there were close there because that there were utilities bills they are but i don't know that there was actual testimony of where he stayed but there was wasn't trial counsel but my we are going to record was that there was no request to not use it but they certainly were given the standard charge when multiple counts are charged that you're only to include the evidence relative to that how does it really answer your aiding and abetting was adequate in requiring advance knowledge of the gun i don't because the charge permitted the jury to either decide that he had advance knowledge knowledge of the crime or knew contemporaneously that he knew a crime was being committed as it occurred and because it offer both alternatives the jury could have chosen the government has argued that on these facts there's no way they could have found the knowledge at the time of its occurrence and so therefore the government  we've raised sufficiency for me to suggest how either could be proved but what we do know is that mr mitchell left the the house immediately was arrested and then other one course mit media we enter and find the gun so i think that a jury could infer i don't think the evidence is sufficient but there's certainly if there was for example if mr lawson had testified that he knew there was a gun there it's certainly possible that mr lawson showed it to him for the first time forward on page twenty eight my proof requires either a defended those that a crime was going to be committed or was being committed and so the being committed is in the moment as opposed to having  could very well be true lawson's acting on his own the picture just landed in the room the ammunition for the gun happens to be in the same room as the picture mitchell has nothing to do with this is possible but of course we have to accept all inferences to favor the verdict e as opposed to the government the mistake that favorite the government perhaps was not making clear that the knowledge has to be advanced which is what rosen says and exactly what rosen says rosen says you have to have advance knowledge of the gun or knowledge at the time the crime is being committed at the time you can still withdraw it was going to be used in connection with with the drug crime exactly and so that was mistaken but at the same time in giving your third circuit in pre words meant instruction the instruction favored the defense in saying that the government had to prove it to defend it knowingly assisted in the crime the crime being the one twenty four c offense the possession of the gun where grossman makes clear is that an aider and abettor with respect to c charge does not have to do anything with regard to the gun that aiding and abetting the drug crime by itself is enough so long as the defendant has an advance knowledge so this was a very favorable instruction for  usually if it has a fatal flaw the fact that it is favorable in other aspects does not cure fatal flaw right though absolutely on a bit but this is not a fatal flaw because in this case there is no way that the jury can convict i'm with the theory that mr mitchell only knew about the gun at the time it was seized because he wasn't there and the conduct that he would have taken and which they were lodged in finding him guilty had to take place before goodman he was not charged with aiding and abetting for that because the goodna property was empty there was nobody to aid and abet now to eight the jury had a question on aiding and abetting so does not that indicate perhaps this flaw in the instruction was confusing the jury how they should decide on whether there was advance knowledge or the jury asked for the instruction on aiding and abetting to be read and the judge really read it and there were no further there was no for the question that i can recall after that but again with regard to karla stree mr mitchell has just left the property he has a key he's not there the police go in and they find walks in and they find  guy by definition if he had knowledge of the jury found he had knowledge because they were instructed to five if he had knowledge it had to be before because the crime was committed which is the instant that they found the gun and so roseman is satisfied that he had advanced knowledge that a gun would be used in connection with you and the answer i submit your answer is yes and this gets back to the sufficiency claim it's his stash house it's his uncle who's sitting there selling drugs it's knowledge that it would be used in connection with drug offenses my argument is the government presented sufficient evidence for the jury to conclude as it did that he had knowledge and that knowledge necessarily was advance knowledge given that he was not there when the gun was possessed the jenkins was is the key witness here he says that he bought drugs from mitchell in this house and from this house the police also did their own car undercover purchases for mitchell at this location  then finding that lawson is the guy there with the gun at the time he reached that conclusion it also no question to the jury in that regard no so i just want to quote for you language from mine and see if you satisfied this the government makes its case by proving that the defendant actively participated in the underlying drug trafficking offense with i did snarl ridged a confederate using you gun during the crimes commission this very specific language but your your argument is that the jury could certainly haven't heard yes we're the first part of that there's no dispute here that the government proved that mitchell participated in the drug crime and so what's left is did he have inferences i also haven't mentioned the two other locations the goodman street property is searched on the same day and there's and there's no one else there goodman and there's a gun again strategically positioned near the front door when you look at this is fo four we are not there was no objection certainly the jury can infer knowledge an intent and plan here first and here i would correct mike my friend about the first of searches a year later she said that he primarily lived the first three that's who's going is this and he says quote tyrone's because he gave him the money for so a jury can look at all of this and say he's doing the same thing over and over in these different locations he has the knowledge that a gun is there to protect the drugs right next to where the sales are being committed i don't see this is as a difficult case as far as the grossman mistake is just not relevant given that he was not there roseman it is a case it which people are literally running in the street and one very very similar same judge same practice of just listing out the arrests and in that case what the judge says is he says you have one two three four five arrest for burglary it's center and then immediately says it appears the defendant is incapable of abiding by the law so it's really the same situation it's it's hard to separate that conclusion from the finding of various arrest well but in this case you have an extreme criminal law abiding by  because he's getting arrested all the way so when i just read the abiding by the law is from ferguson and this court rules that it will not infer from that i'm playing here with view that the judge will live on those arrests as opposed to citing  ant courts not to rely on the rest records i can tell you that if after barry and after miss him athena i instructed every prosecutor in my office we're going to decisions and to be aware of this and to see that it doesn't happen  average in that but the big here sure it's an incredibly long stamp it's going to be incredibly long whether it's remembered or not i just have to faithfully argue based on precedents that this looks to me exactly the same as  grief and and in my grief i explain and i'll take it back mr mitchell allocute and when he allocute see reads a long letter and in that letter he talks about being a victim of crimes  i have that in quotes and then later i say the intended meaning of the court's response was just as clear and then i use a single quotation and i apologize if that was my interpretation they will let me tell you what he actually specifically said did but i just feel compelled to explain because i don't want my grief to be misinterpreted to my advantage obviously i'm not sure what the defend it was referring to when he talks about crimes committed against him but i certainly know the crimes he is convicted of committing and the crimes he was adjudicated delinquent for community as well as the crimes he was arrested for so that's what he said in response to my client saying i'm a distinguished there in the first instance the u s attorney mentions mr mitchell's criminal history in response the court actually interrupts the presentation to add a reference to all  last two are really this case so we have no facts on any of his arrest it's a bare rest record except for the last two and those facts are that there are redundant because they are the federal caps and then he describes this package these six he has some juvenile gitta cations for which he received probation many many years ago there are no records and six adult convictions and eighteen arrest and says this is the worst record he's seen it is twelve and a half years on the bench and when you actually parse out from that group what the arrest is it seems impossible to conclude that he wasn't basing that opinion on more than just the actual convictions he has three adult convictions that were more than thirty years old two of which he had received probation for the other he had unleavened to twenty three month indeterminate sentence those that's the thirty year group in two to suggest that it is among the worst records one has seen and that's what it is it's nine criminal history points it's thirty year old cases that have probation and a simple possession so i think that decided a decade earlier more than a decade earlier and then it has to affect substantial rights and if substantial rights this isn't the case oh well he received a guideline sentence so it doesn't matter because in both and barry it was considered plain error with a guideline sentence and in that detail medina there was actually a downward variance or departure and it was still affected it prejudiced the defender and the  rationale in those decision is that you can ring the bell it can certainly influence once you've considered it it influences your thirty five fifty three a analysis even if you end up in a guideline sentence and then with respect to the last factor for play an error i think that it's hard not to conclude that this doesn't impact the integrity of judicial proceedings because this is a person who walked away with an eighty five year sentence fifty five years for the stacking up to one twenty four c but also another thirty fifty five is probably a life sentence and so in that way how i think that you have to think that that impacts the integrity of the