the definition of constructive possession and the second was the prosecutor's use of impeachment testimony as substantive evidence of guilt during the closing arguments the instructional error was that the district court instructed the jury that they could having been affected in regards to this matter now nine twenty four c which is clearly says that the defendant possessed one or  firearms charges in count two in father us of a crime and that's nine twenty four but nine twenty two g is the one where we now have said that you've got to have an intense how can his substantial rights be affected when the jury found that he used one or both of those guns in the father and son of a crime right  they're basically are kind of like the status of the firearms the whether the firearm was loaded or unloaded whether the firearm was legal or illegal where it was placed in the house none of those factors and none of the government's analysis of this particular the plane when this is one twenty four c as opposed to one twenty two g and i think the answer is that it fell in little yes it happens to be a nice when you know one twenty two g case but the definition of constructive possession was changed and that instruction because one of the elements that the jury needed to find was possession of the firearm relief if the gun was used in connection with committing a crime who had possession of it i mean i think this may be a hypothetical circumstance would kind of flesh out the argument here so the evidence was fairly overwhelming that the gun that was found in the bedroom belongs to actually her date d n a was on it primarily female d roberts from coming in just knowing that the gun was there i think that there is a theory of this case in which the knowing possession can be squared with the in further and factors and that's because of what i mentioned before which is that the the jury is directed by the instruction that in further in means these factors and those factors don't actually relate to men or relate to the firearm nexus between a particular defendant  instruction they had to the jury had to find possession is that correct yes they were instructed to find possession yes and then they could have gone back to the erroneous constructive possession instruction done the wrong thing is that what you're arguing it's not quite what i'm arguing mean i think it's a present at the time of trial the possession element in one twenty four c did me knowing possession and i think the prosecutor supposing statement pointed the jury to that iranians instruction now erroneous instruction itself several points and so yes i think the jury could have looked at that ok all we need to find is knowing possession and then we look at these factors to satisfy the infer there and aspect of the nine twenty four c charge and i think all that this court really needs to find is that there is uncertainty that the jury's verdict is called into question and i so this is there was at least one statement that was also conceded plain error which was when the prosecutor argued in her closing argument that we know from actually hungry house because of what she told him the day of the day in question this incident that before the home invasion she had never seen him with a gun and then after he did arm self with a gun so that statement only team in through impeachment testimony that could not have been argued to the jury as substan evidence and as i laid out in my brief the attack of tactic of impeaching your own witnesses is a heavily guarded tactic and i did not argue that the statement was improperly admitted but i think in this kind of controversial using the controversial trial tactic that got the prosecutor was on heightened notice that it needed to be very careful in its closing argument about what the actual evidence this statement obviously went to the gun charges as well so you have a little instruction that's basically decreasing the government's burden of proof on the element of constructive possession and then you have the government's argument in closing that essentially artificially elevates the weight of the evidence wasn't actually direct evidence it was only impeachment evidence and so i think the way that these two work together is that if  we go back to the issue of in further ensign intent i mean the jury really could only have found in hand or there was a much stronger evidence of intent based on what the prosecutor was arguing as for the conduct of the trial where you have the detective tactic of impeaching your own witnesses which occurred twice and you've got multiple statements of the prosecutor in closing argument that were improper and so i think looking at the whole context of the mean please the court carry capital on the happen the united states the court here can be confident in the outcome of the trial that goes to prong three of the plain error analysis and that is because in this case unlike the benford case and unlike the simpson case this defendant was charged with one twenty four c and he was convicted of that count beyond a reasonable doubt by the jury so in order for the jury to found the defending guilty of the one twenty four c town had to find that the defendant had the dine in order to promote one further end of the drug trafficking crime which was explained to the jury that meant to promote assist accomplish define each other so when you look up intent it talks about purpose and you the purpose it talks about intent so i disagree with my colleague she argues that there's no mens rea element in that in furtherance component to the nine twenty four possession so he or this court can have confidence in the outcome of the trial the convictions on the gun count because the jury found that the defendant intended to possess the weapon to further his drug trafficking same instruction defining possession when the jury is trying to determine the other charge and whether or not there was sufficient proof for it yes your honor we would have to look at that same facts and mission however one twenty four c contact and of course my research revealed there was no case in the circuit dealing with this constructive possession instruction error where the defendant was convicted of the one twenty four c charge so here is why under planar view the defendant did not need his burden to show a reasonable probability that the outcome would have been different because here we know the jury found that he best or use the gun or had control but there your honor found in the context of the zap scene drugs with intent to distribute and it was a constructive instructional error on constructive possession but it was in the drug contract and they are in a court found that the defendant could not meet the third prong because it would be nonsensical to find that the defendant intended to distribute the drugs but did not intend to possess the drugs and i would make that analogous argument here so both in this court simpson case which was published and then the the run health taste which is not published the court found in both of those cases that even though there was an error on the constructive possession instruction the defendant could not meet prong three a plain error analysis because the jury found intent to distribute and the jury could not have found intent to distribute without also making that extra finding that the defendant intended to possess well intent to distribute and a lot more clear to me then in further and of and we you know you know if you're familiar with these cases where we've got young and close to dr and doesn't involve possession no your honor i i would say you affirm on everything because the defendant cannot meet his burden to show a reasonable probability of a different outcome and it hinges on a nine four seats so it does not undermine this court's confidence or it should my art is clever i mean you're saying you're convicted and there's and there's evidence to support instructions are proper as regards one count so therefore you're guilty of the other one that when you're in a blind playing their review that a reason that this court confidential is not be undermined and why the defendant cannot meet his burden on promised three and four goes back to what the jury was required to find in order to find the defendant guilty beyond a reasonable doubt on one twenty four c and that that is i guess where the harmlessness comes from and and here the burden remains on to defend assist an accomplished drug crime if he doesn't intend to possess that weapon and use that weapon so that's what makes this case different then this court earlier cases and then for instance and specifically and we also argue that that is why on the fourth prong there should be this court should not exercise discretion to to reverse because the integrity  fairness of the proceedings is protected by that nine twenty asking them aren't you asking the jury to ignore this and express instruction to the nine twenty two team which was wrong i mean they're instructed that you don't have but here are the jury for the one twenty four c town had to find that the gun the defendant had the gun for a particular purpose and i guess what we are arguing is that although there was instructional error in this case it doesn't rise to the level undermining the confidence that has a jury been properly instructed on constructive possession they would have convicted and you can feel confident in that because of the arguments i additional component that i have to be in further ends of the drug trafficking crime and my argument is that that includes amends re our intent element because it's for the purpose ok why what was the purpose of the defendant had that gone are needed i got it for the purpose of this drug to promote it cetera drug trafficking crimes i guess i'm saying there is an intent a separate intent element within that for the purpose and that done the research but i think that was part of the censorship pattern criminal instructions until very recently when they were updated and now updated to reflect a little and other changes in the law and just as to issue number two i'm not sure anymore questions on the first issue just briefly i just like to address the point that the district court did give prophylactic jury instructions and  to credibility or believability and the destruction that you referred to was that made at the time of the testimony and then restated in the formal instructions to the jury i don't believe so you're i believe they were given at the end of the the verdict is called into question and i think that kind of brings me to my next point which is if the themes of counsel are kind of extricated from the trial so assume they never happened and then assume that the jury was properly instructed on the definition of constructive possession i think it does undermine faith in the outcome of the verdict and that's why i think these two errors really do work together to create this kind of  perfect storm where the gun charges are there just not confident that the jury would have convicted if if my hypothetical perfect trial had happened and you know in terms of  the instructional if the jury follows the court's instructions as i said i think that there are certain cases in which one can't assume that that has happened this case there was no contemporaneous instruction the specific witnesses are called out in the the in court instructions and all the counsel defense counsel did make some of those points in his argument this court has a lot of pieces that say that the prosecutor statements are taken more seriously by the juries and then statements of counsel if there are no further question