argument in this matter and i plan at the outset to focus on the instructional errors raised in argument one but i've done my best to prepare for any questions that the court might have and there were basically only a couple of disputed elements in this case and it was conceded by the prosecution or the government in the case below and that was whether mr gomes had prior knowledge that there was methamphetamine in his apartment and whether he had possession with the intent to distribute the methamphetamine there are three substantial instructional errors in this case none of which are perfectly preserved to involve the elements of the ants in other which likewise had deficient elemental instruction on the intent element the rd instructional errors more of a process error and that was the court instructing the jurors repeatedly that they could would did the defendant object to the aiding and abetting or the possession instruction no he did not and under gerrard which was decided a year ago out of utah where the defendant did not object that was considered to be invited there you know i am not familiar with that case and i would like an opportunity to read it and respond i think you have to look at the facts  each case to decide whether an issue is invited or not i think this is typical and preserved error subject to plain error review and the government has never argued that this  the government was in two parts and the problem was the nd car was just disappear in nobody caught it would that suggest that that is just than invited here well i think definitely with respect to the aiding and abetting instruction i think both sides thought that the instruction that the court was going to give on aiding and abetting liability would contain both parts of the tendered instruction by the government and the nd part which contained the critical element aspect disappeared and no one caught it not the court not the government and not i don't know what the local practice is or the specific judges practice but does record indicate whether or not the jury was given written instructions  delivered by the court i'm not sure that it would matter but i did with the record indicate one way or the other i think that the record indicates that the jurors were given written instructions because i distinctly remember that they all had written instructions for the approved a liberation instruction so the court gave out its pre deliberation instructions its introductory instructions and all of the jurors had those and i just don't have a distinct memory of whether the final instructions went to the jury but i believe they did so you know we have a situation where two intent elements are missing from the instructions no finding by the jury compensated for that they'll be some cases where for example constructive possession is not properly defined the intent element but the jury will find properly find a crime that compensates for that deficiency in the elemental instruction and it was in that why doesn't simpson do that in this case it doesn't because of the other elemental defect because for example the court i mean the court the jury found possession with intent to distribute but they were also instructed on aider and abettor liability and that allowed them to find that offense without finding that mister gomes had the actual intent required because they could have found the intent by a in is it are you essentially suggesting something along the lines of not not the exact rubric but something along the lines of cumulative error in the sense that that yes you had this error as it relates to  the intent to possess the constructive possession one and you combine that with the fact that you had an error as a relation aiding and abetting and the essentially the aggregation of that results and there being harm here that might not otherwise be find that the court needs to aggregate the impact on mr gomez's substantial rights and whether given this i mean three very substantial errors and in the light of all the facts in this case and especially since mr gomes testified and these errors not only reduced the the government's burden of proof on critical elements it also denied he in the defense that was supported by his own testimony it's really critical for the jury to evaluate his credibility and whether he really should be acquitted because what he's associated with that instruction that there was some of the jurors might what was at the language was that they in some sense might have had a pretty mature assessment of the evidence well all you've got is a wrist at speculative i mean you've got to show that there was prejudice we don't even know do we that they actually deliberate well this this is a very unique situation and what we do know is that there's a longstanding requirement that jurors actually be instructed to the contrary that they should not discuss the evidence before they get to the end of the case the government hasn't accepted error here in conceded that so what we're talking about is prejudice and what i'm asking you is what evidence do you have that there was any harm because the court didn't direct them to deliberate early it just you can't right and it repeatedly said that and it also you know in terms of burdens in this case in establishing prejudice i think we can presume that having repeatedly been told that they could discuss the case with each other and with the alternate b s and repeatedly told that they should make up their mind until it's time to deliberate either right that's correct and that's why i cited the court to wind brenner which is the seminal case in this area that recognises human nature that when you start expressing a view about the quality of the evidence and recall that the alternate jurors part of this too and i understand what the court saying we don't have evidence that for sure the jurors and the us this case beforehand but it i think it would be unfair to put that burden on the defense in this context because the judge for example in his concluding remarks really discourage the jurors from ever discussing this case and i think if you go to the very last instruction that the judge gave he says you know you don't have to talk to anybody and if you do if you discuss what other people said to you and i'm paraphrasing that that could challenge the very integrity of the jury system so in light of that and in light of the the case law that does exist because you know this case is really the peter liberation instruction it's very different than the cases i think relied on by the government those are cases where the court fails to admonish this is a case where the court repeatedly admonished it's quite true but we in a number of contacts rely upon the presumption that the jury was your instructions and couple always i think with the instruction that you can deliberate among yourselves was the instruction not to make up your mind and not to do the exact thing that you said that there would be a risk that they would run when all the jurors could be honestly it hearing to that instruction and not in their minds reaching a final result and yet as the cases i've cited in the briefs recognize just by talking about the evidence expressing the view on the evidence without reaching the ultimate conclusion that can psychologically speaking you know have an impact fair or not you're under plain error and plain or puts the burden of that on you right it does except in i think the rarest of circumstances and this might be one of the rarest of circumstances only because it's almost impossible for us two years after the fact and with the jury instructed the way it was to establish prejudice and what i'm relying on is the likelihood that given the repeated instructions that did happen now aside from that i'd also ask the court to look at that instruction in light of the other instruction letterman let me i know you wanted to talk about the instructions but i really feel i have to address an issue related to your structure and justice contention and really that if i understood it correctly there are two things that you're liking one is that the court's findings were legally inadequate under massy and under donnegan they were legally inadequate to that there was factually not a sufficient basis for the obstruct justice enhanced why would just clarify the nd part my point is the the court's findings i point out four different aspects and those four different aspects are insufficient to support an obstruction of justice enhancement for the reasons i say in the brief well if if if ok their findings were the court's findings were insufficient to support it ok well that's a factual issue as opposed to the legal whether the court did what it should do in terms of making adequate bindings is that right well not two different things right those are two different things ok well as it relates to the st one which is a legal argument i'm having a hard time seeing where you reserve that because the reality is you when you when you looked in your brief to were you allege preservation it was your sentencing memo in all your sentencing memo said was that the facts were not add a to support this obstruction of justice enhanced when that was before the court even opened its mouth that was before the hearing actually took place and so your st allegation is an articulation error the court did not give adequate findings well you weren't situated to know that until the court actually made the find and then you didn't object after that we didn't object after that we presented evidence that went to you whether there was an obstruction of justice the case law is very apparent that the court has to make express findings and identify the the language that is perjurious that doesn't answer the question because what i asked you a neutral is whether there were two allegations of you said yes factual one we can deal with that nd one is where the findings were adequate that happens when the court articulate you said nothing after the court articulated it seems to me whether the government raises that issue or not which is it's a problem you didn't do that you did not object and i see my time's running out i will try to come up with a sink response and i think the court has identified one of the issues and that is that has never been raised before as a response to our obstruction of justice argument but thank you good morning i may place the court jennifer williams of the united states mr gomes has alleged a number of errors and i'm happy to address whichever ones the court is why tell us why you didn't claim that there was a lack of preservation on the legal issue  it is true we did not claim that in our previous in preparing for argument i did find some cases unpublished where the court did make the finding that that particular argument was an preserve where the defendant did not object after the district court obstruction finding you think the court's wrong i mean do you think what i'm saying is wrong you know no we don't i but i acknowledge we didn't raise that argument in our brief and but we did i have found cases where again i think most in unpublished cases this court has held that exact thing that the defendant has to object in the district court after the district court made makes its obstruction findings so we believe that that you are correct ok let me let me ask you a question no decision made here of course yet but let's assume for the moment that what we're focusing on is what prejudice curd here i mean well on the question of obstruction of justice if we're focused on whether there was evidence sufficient evidence of obstruction of justice scratched prez's thing if we're focused on whether there's sufficient evidence of structure and of justice are we limited if we can discern that the court actually a dentist by the perjurious statement i think that's massy it if the court did that are we limited to what the court said there or can we look at the record as a whole i think part of this played out in the in the supplemental authority i mean can we look at the trial transcript in discerning whether in fact there was perjury yes and i and my understanding of that of the supplemental letter answer is yes no better but i understood mr gomez to be saying that the reporting to the courts and in that hearing and those were things or the scope of what would be determined whether the factual basis was sufficient for the enhanced was what i'm asking is is that in fact the case i mean if we know what the producer restatement is can we look at the record itself to discern whether there was perjury there yes and that's what this court has said that the review is for clear error and as all w the court looks at the record the court can affirm on any basis the question is whether the district or clearly erred in its factual finding that he deliberately lied and in making that determination the court has the entire record before and i would also point out the district court statements at sentencing have to be viewed in the context of the entire sentencing proceeding and what happened was there was a p s r that recommended obstruction and handsome and on a number of grounds both the inconsistency between mr gomez's testimony and the testimony of the object of these officer don johnson but also based on the inconsistency  gomez's testimony about what happened on the day of the drug deal september th and the testimony of the police officers as to what happened that day so his claim that he did know the drugs were in his apartment which was contradicted by the t that was all in the pre sentence report in response to mr gomes objected and present to the testimony of don johnson which was heard at the sentencing hearing and while the district court in its actual articulat listed those four identified discrepancies between mr gomez's testimony and the testimony of don johnson it was in the context of all of these other factual statements that were in the  it on the p s r which i'm looking at and i'm looking at paragraph twenty three dollars which is for obstruction of justice which runs by lines and i don't see all of this talk about other obstructive testimony perjury so forth and then i see the objection and the government's the probation officer has a response which says that and the most terms possible that recognizing the objection on don johnson they say the parrot is the enhancement for obstruction of justice may still be appropriate for other aspects of the defendant's testimony at trial could you get by ha paragraph fourteen speaks of his testimony but the three c one point one paragraph is paragraph twenty three and it doesn't identify all of these other things well but paragraph sixteen discusses the see paragraph fourteen and then paragraph fourteen discusses all the testimony at trial about his claim that he didn't know the drugs were in has apartment and how that w testimony of the police officers well i don't think that the government interest ponces ever identified these and there are a host of things understand his testimony is a minefield of potential obstructive three c one point one statements testimony but i don't see in the government by links where those were brought up in other words it looks to me like the district court was left in the lurch a little bit and went with don johnson off the cuff and so why shouldn't it be stuck with don johnson while i have a couple of responses to that i mean i think the government's motion for the for the enhancement while admittedly sparse reference at least references the discrepancy is a trial and again the district court had before it the pre sentence report which does in that paragraph specifically address those discrepancies and this court has stated that the district  can also imply at play find the various factors that it doesn't all have to be explicitly on the record through that that's an articulation issue and that's an issue of whether you have to be expressed in your findings but but if the district court's findings it to don johnson and this is something i want to try to get clear in your view on it seems to me once under massy you have a dinner of five this is the perjury now as i understand from what you're saying we can look beyond we can look at the record to see if their support for this is the perjury but that's different than saying well then now we can look and see if there's other perjury too in there for the court would have been put behind in finding perjury because there's all this other perjury out there those are two different things and if we can do all look out in the record and say all there's all this other perjury that defeats the point of having the mask the requirement of forcing you to a dental that's the perjury right well i think the perjury in this case is his testimony it's it's the friends it's his testimony that he wasn't an active participant in this drug deal he was simply gathering information for the ogden police that is the perjury ok could not support this enhanced man by his statements about not knowing that the drug the box in his apartment was methamphetamine you know you could because that is part of his defense part of his defense i was an active participant in the drug deal i didn't know the drugs were in my apartment i was simply gathering information and then when i saw the police coming to my apartment i suddenly remembered the box and i dumped the contents in the toilet that's all part and parcel of the perjury is testimony the perjury a statement which is in this case his entire defense that he was not an active participant in the drug deal that he was simply gathering information for the octon police department now the evidence that the district court the findings the district court made explicitly in the sentencing hearing have to do with the discrepancies between his testimony and don johnson system money but the testimony only gathering information for the act i'm pleased to partner but there are multiple discrete potential lies there and so it just i'm struggling with that because it's one thing if the standard was all we to determine is did he commit perjury that may be pretty easy looking at the record but that's not what the question that that's so i'm trying to understand why isn't the question however did he commit perjury relative to the john johnson episode is that he was cooperating in what you know his testimony he lied about working in twenty foot in two thousand and fifteen essentially and that's discrete from whether he knew the box i mean yes i take your point that it's part and parcel of this whole big thing but on the other hand aren't we supposed to in the whole point of the mask the requirement that we say that's the law where's the proof that supports that in that i mean that the whole point of the exercise well it is and i think in some cases the he had been and he had been an informant and he was still although he was no longer an informant he was still gathering information that doesn't get us exactly at this issue of the harm that can occur which the supreme court was trying to get or we were trying to get do it if you in fact did do it perjury well i think it depends what what your testimony is in your defense and whether you take the stand and whether you deliberately tell lies and in this case based on the facts of this gathering information for the out employees yes ok all i'm saying is if that's the case should we then limit it to terminate whether there was a factual basis for that as opposed to saying all we can also look at is statement that he about the box and he didn't mean in the box i mean yes and in the scheme of things that's all part of his view that i didn't do it and i know it but that's a discreet law isn't it from i was gathering information to work out the charges for my girlfriend well we don't we don't believe it is we believe that it was ok if it was part of the same one well what is the problem why is it so burdensome to say to the government if you want this enhanced meant it's your burden to prove it and so if you're going to go in and rely on perjury give the district court a bunch of examples and it be nice if there's even a record site saying on this page he said that he did not that whatever the events were as the two cars came back the apartment that the c i did not go into the apartment that was a lie on or because we had the officer who was surveilling and he saw that in that wonderful the then we're not having all of this discussion in other words why should we reward or maybe that's the wrong word but why should we permit the government to do  kind of a sloppy job on obstruction and handsome in here not furnish all of the details to the district court and then when we say this isn't very good on don johnson to then say well but there's all this other stuff too and other words isn't the problem the government just didn't identify it well enough and you are again we admit that the government's medicine for the obstruction enhancement was sparse but it was supported by the p s r which did identify all of these discrepancies and also all of these discrepancies that we're talking little teeny her grown ups in the p s r we're not talking about citations to the record w not talking about what his testimony was exactly well paragraph fourteen is a fairly extensive paragraph which doesn't cite to the record but it does specifically lay out the identified between his testimony about what happened on the day of the drug deal and the testimony of the officers the other point is that the testimony of don johnson was only presented at the sentencing hearing and so the government that was that they objected mr gomes objected to the sentence and handsome and in a written filing and then presented the testimony of don johnson at the sentencing hearing and so that was additional evidence that to which the government cannot respond until the actual sentencing hearing mr williams your time is up however there's an issue on to discuss with you that we have discussed all that is the it ing in abetting instruction ye was he was denying in ten to distribute correct that was is the essence of his case he was not intending to distribute and trying to help his girlfriend ye although i would just point out that the intent to distribute is part of the construct of possession and there has been ok focus just now on the aiding and abetting right before we ever get to the constructive possession the essence was is it he he had no intent at all in this case other than to help his girlfriend craft that was his claim that was the essence so if you give an instruction on aiding and abetting that excludes in evidence of the missing element was offered a trial and well when it is understand your approach on playing air is you say that it was there and it was plenty but that it did not affect the substantial rights that you're the essence of your position create a c s and you don't go on to the th aspect from the lie on a case of the integrity of the court and that last element right you don't even go into that you know well because our argument about the lack of prejudice also said that that well but you focus rights are not affected if there's a jury instruction that does not require intent because the court's case law is that there is no prejudice if strong evidence of the intent element is offered a trial so the question is whether the result would be different and in this case but yet to look at it another standpoint to yes the evidence may have been strong but his whole case in the shins was do say i didn't intend this i intended to help my girlfriend so that jury instruction essentially him the essence of his defense because he has to show prejudiced and under this court's case law he can't show prejudice or don't doesn't our case law say that you're entitled to your theory of defense and there was strong evidence  that was the other point i was going to make that although although these alternate instructions were given the government never relied upon either an aiding and abetting terry or a constructive possession terry it relied on actual possession and that he was the principal but when you submitted to the jury we don't know what the jury did and it could well have been on is that you know they were listening to him saying well  know betty well you can find him guilty of aiding and abetting we don't know what the right that's true we don't but again i go back to it's plain error and it's his burden to show prejudice and given all the evidence  trial of his intent and the fact that the government the evidence the government put on a trial was that he was the principal and that he did not aid and abet or constructively possess that he hasn't met his burden of showing prejudice that means that you are saying that when the government has a strong case we can exclude the defendant from testifying on his intent no that's no effect that's the effect of this instruction that's not what i'm saying at all what i'm saying is in the context of this case where there was an admittedly erroneous instruction that admitted the a ten element under this court's case law where the standard of review was plain error and his burden is show that he was prejudiced what the what the case law says is that there is no prejudice strong evidence of the intent of moment or  johnson but we need not decide the question that is of substantial rights because even assuming that the failure to submit materiality jury affected substantial rights it does not meet the final requirement only that you have strong evidence or you have overwhelming evidence didn't johnson also say that the evidence must be overwhelming and but under the prejudice the well i'm just looking to justice and you say that's that's i think you're wrong used as a substantial rights case but even johnson says that the evidence must be overwhelming and essentially uncontroversial now you would agree that the evidence was controverted by his testimony correct yes we would all right so either sensually controver it was but the but but the question for the court still is under a prejudice analysis johnson said as a reasonable ability that the result would have been different and so the court house to look at different result could not have resulted when effectively the aiding and abetting destruction denied him his own testimony again i think what's important are the specific facts of this case his testimony compared with the testimony of the two police officers and agent kennedy and which could have been the basis of the jury decision because there's no requirement no intent there we don't even consider what he said because you did the prosecution didn't have to show intent on aiding and abetting so  have course the evidence is going to be overwhelming the question for the court is whether there was whether the government did prevent and whether there was a reasonable probability that the result would have been different and the court answers that question by looking at the evidence that was submitted to trial did the government have to prove intent of the principal charge that he was the church he was accused of in other words he was it used being possession with intent to strip yes and i because i believe i said earlier there's been no challenge to the there was a challenge to the possession aspect of that charge but not to the intensity strip and the jury did convict him of possession with intent to distribute and it could have been because they deemed him an that's i have to go back to the standard of review i see there are reasonable probability one question is it true that we do not know whether the jury convicted him as a principal or eight or in a better the standard is a reasonable probability and i just i have to go back to one although this jury instruction was included the government never argued it as a theory of liability they were allied on his position as the prince of the don't have tory when they put it in the written instructions it's there you cannot run away from this they said alternatively you can convict him as an aider and abettor and you need not show intent but because the got because mr gomez has to show prejudice that's not really being worthy elaborates whether it's likely that they convicted him as an aider and abett so getting back to the obstruction of justice that the government says the question is did the court err in its factual determination that the defendant deliberately or willfully  perjured himself and the court never made that finding at all and i think in this case aside from everything we've discussed before there's a real issue one about whether mr gomez was testifying truthfully at least in his own mind the fact that the government believes he was not testifying truthfully and the fact that they brought up the fact i mean there are the allegations or he's untruthful look at our case and as the court i think recognizes that's not sufficient cannot in consistencies and i believe we have cases that say this in consistencies can provide a reasonable inference that there was that's not what the trial court found the trial court found specific facts and as i indicated in the brief at least three of those were wholly consistent with the defendant's testimony and the only one that with law enforcement in specific maybe he didn't know the name of the person but he's saying i'm cooperating with law enforcement the courts no there's no evidence that he was cooperating with law enforcement in two thousand and fifty and the point is we're not giving me a case that tells me we're limited to the exact words the court uses in making its findings we can infer from what the court said what it was trying to get at in implicitly the court says you said identified specific statements presumably those were statements that the court found or those were facts of the court doesn't even identify any actual statements by mr except for the adams statement as i've suggested that's not a material aspect and there's no fine need to have a critical finding that's necessary when you're going to charge someone because they testify untruthfully that the court m finding that there was testimony that was untruthful and he the judge never makes that finding so i think that we should prevail on that issue but the more important issues are obviously instructional issues i don't have any well if you're implying error on that issue it's not clear to me that you are going to prevail well if you didn't preserve that objection and so to me there's a problem i think i've cited case a case in the brief that says once the defendant of jack's to the application of the obstruction enhanced meant the burden shifts to the prosecution to assist to set forth the project areas statements and so i don't think under this context that i actually have that burden as how you get going to me there are two discrete errors that you're alleging here one is a legal error of articulation the other is an  and and i also think that if we were subject to plane air review something that's never been raised by the government we would prevail in light of the language in mass in the light language and done again and the extreme importance of not  punishing someone merely for testifying because there are different elements that the court has to find and most critical of which in this case would have been that mr gomes was willfully testifying