case number nineteen dash seven hundred and thirty three us state versus curtis got argument not to exceed fifteen minutes per side mr shad you may proceed for the appellant thank you may please the court i'm here on this morning representing curtis like to bring before the court's attention is my issue number one which is that the defense in this case requested a jury instruction with regards to the nine hundred and twenty four c count that should have been given to the jury and as a result of that i don't think the jury got a whole look at the different options that they had under nine hundred and twenty four c to convect so in this case the government so the defense in this case asked that the jury be instructed just that that defendant that the jury be charged d whether he eat possessed or brandished or discharged the fire  the judge did not give that instruction d as requested instead the judge set up this kind of bifurcated system for this count where the jury was st to find whether or not he was guilty of possession and then once he was found to be guilty of possession then there was a special inquiry or special erotic tory in the jury verdict form as to whether or not once he was found guilty then was the jury just or was the  gun discharged or was the gun in or was the gun branched the jury in this case wound what's the what's the harm here i don't i'm not i guess i have always been a little puzzled by this argument so where the jury could be one or the other or the other and in the read in the the the facts that kind of support the jury confusion on this is that special jury verdict form is so because you know a lean tells us that  these are different l different elements or different alternative elements contained within nine hundred and twenty four state so you're only if there's one count of conviction undergoing twenty four to see a defendant really can only be convicted under one of those alternative d meant elements not all three in this case there's sort of a jury finding because of these in roger tori's that all three he's guilty of all three different worsens of the offense under the sink you know because the jury actually found him guilty of possession and then they inserted yes s to the other two alternative elements as well and so i mean he was indicted indictment said that by way of aiding and abetting he did intentionally carry brandon and discharge our right yes the charge on yeah and so you can't  brandishing a discharge you can't happen without possession right so i mean why why isn't it just logically fair or sort of saving the jurors time to say no we have to to answer granderson and discharge you if you find that he possess well because the the way that it's the way it's constructed i don't think it's a clear that jury could understand understood that they it stop because the because the way it's written is that if you find to be possessed that now you must go on to these other two iraq reforms but it was yes or no i mean they were required to say he did know her as things well that's that is true but in this case the jury actually found yes on both of them which they really couldn't have or shouldn't have because their alternative it's so in other words in this case you have a jury verdict form that finds mr scott guilty of possession d brandishing even just charge when you know the whole the whole point case that i cited to my brief says that those should have been in the disjunctive whatever something is charged in the country and it's alternative elements you actually when you get to the jury instructions you go to the disjunct and so that that is that that's the concern that that the defense has is that the jury in this case you know wouldn't have been led to a stop merely possession at that point in in fact you know that the  it's and then if that if the firearm was brandished why yes but not that not that the defendant participated and maybe the larger version of the offense in other words there because it's an aiding and abetting charge the jury could have made a determination that well he was involved in the carjacking he knew that they were going to have a weapon on him but he probably didn't buy into either discharge or brandish they the jury could have found but that's not how this particular jury instruction injury occurred foremost construct it instead it after the oh i'm blanking on the case study not right now are our most recent case from the supreme court on one hundred and twenty four see that in fact he does have to have had some scienter that it was discharged and but i recognize that there's case law from the circuit the holds directly against that point but i did make that argument in my breath to preserve it for the review her but i do recognize you are correct under this court's current case law he does not have to have known that it was going to be discharged but again this is an eating in a betting case not a direct you know but i mean it doesn't judge guy's point mean that the instruction was on a more appropriate here well it's still the instruction under the case law that came obviously after the trial in this case because there's not really a fair you can stop here because you had the let's say the the let's say that the government would have indicted him on brandishing or this with three offenses in a single count well the it's not it's if they were it was the jury the charge itself was not improper because the charge to make a time you get to the jury that's that's what this court has said in other cases so the fact that they said any of the in the in in the in the indictment is kind of a not anything that i can hang my hat on but what i can hear my head on is this court case law that says once you get to morning your honor my name is even brown and i'm carrying on behalf of united states in this matter i want to begin with one of the questions that you asked judge kaplan to early on which is what is the harm and there really is no harm in this case  counsel is cracked that and does become the or when you get to the jury except that in this case this is a lesser included offense situation so what you have is the use and carry and then the alternative options are the brandish and the discharge which are lesser included offenses of these and carried so for the court to have instructed using carry or brandishing or discharge would and then lesser included of those are brandishing and discharge with brandishing and discharge not being lessor of each other ok of one another so you could find brandis without finding discharge or even along with the one hundred and twenty four dollars c and so and and in fact the instructions and the verdict form mirror mirror that so you had what it was very explicit in the dur i would argue that perhaps it's evidence of the clarity and the the evidence that the jury was presented and not necessarily that they were  right thank you very much a very briefly your honor so just a couple issues that i respectfully disagree with opposing counsel in terms of brandishing and this charge being lesser included they're actually greater offenses they carry more time and they require something over and above the base offense so there are greater offenses not lesser included offenses i don't think it makes a functional difference but again it allows the jury to use its discretion to find the defendant guilty of something less than the highest form of the offense if it so chooses if they're separated out as force the nd thing i would just point out is that in their brief the government never argues they harmless error as to this issue so i know the court can on its own find harmless areas to this issue but i just want to point out that the government never makes a harmless error argument as to issue number one that i that i've made with regards to the jury instruction and then finally you know although this is a i frame this as a though you to give a requested jury instruction on a lesser included offense and that's abuse of discretion i do point out that this court has said that generally where a lesser included instruction is warranted that it's generally reversible error not to provide that instruction even if there's sufficient evidence in the record  honor i think that this is one of those unusual cases where not only was there not a court record mate but almost an exhaustive record made on the issues that were wanting to be raised by mr scott in this case so i think that the court is sanctioned i mean that not only was there evidence of hearings but the district court actually made a decision on the ineffective assistance of counsel issues so i think this court's fully empowered to actually make a decision on the merits on those issues thank you