almost to our third case this morning united states versus johnson in structure and the danger of concluding that it is is that if you have struck the jury knowingly they couldn't they could conclude knowingly from present stache just struck me as an odd case to be asking for the mere presence instruction because he lived at that apartment hardly your client lived at that apartment at least a substantial amount of time and so it struck me as an odd case for the mere presence or bystander instruction well he stayed there sometimes i think the testimony was three or four days a week he had closed there but that only connection to the apartment we cited two where even repeated presence at the apartment or at the location of the contraband still the instructions should be right my point is that he's not a visitor he's living there with his girlfriend at least you know close to half time but even if he's living there we're just talking about presence they walk in there are two people there whose drugs are i think we're actually we're not talking about mere presence if he actually lives presence instruction is limited and should be used very yes sparingly i think the instruction commentary says and only when the evidence supports it apart from whether you know the question which is mostly the focus of the briefing about whether it's simply duplicates knowingly part of the primary instruction on the charge it's just as i said struck me as a case where it's completely inapt to give the mere presence instruction when there is substantial evidence that the defendant was actually living at this location it's not that he just happened to be there or with an occasional visitor i would say but remember the drugs are all over the apartment there are plain view so they find him guilty he's there why not imagine the impact if you give the mere presence and structure and let the jury shorted out the government says well the defense counsel was able to argue it but argument is not instructing that the jury is still the law instructed them that mere presence is not sufficient wouldn't change the situation with your honor's you judge would they could still shoot to remember that he lives there they're here but they get the benefit of knowing that mere presence is not enough and the other diane warrant that was a specific you know this issue was litigated in lemony and she was told not to use that language or characterize the defendant in that way and then keeps popping out of her mouth and she did  second time after the district joerg judge in her presence had instructed jury to disregard it this is an experienced police officer knows exactly what she's doing and she has a purpose does the record to keep whether or not the prosecutor took the witness to the side and talked about this or me there's about fifteen pages of transcript we're talking about fifteen minutes between the first use of the word target the second use the word target but we know that time minutes are hard to gauge but i would say that the bout fifteen minutes after the first time they have a sidebar the sidebars about four or five pages a transcript that's about maybe five minutes and two from direct across but do we know if there's a break there or do we know if the prosecutor takes the witness up the hallway or  no i don't believe picks them up the whole way but the prosecutor says we went over it pretrial and that's not the way she answered trial preparation specifically the prosecutor s target and this plays exactly him to mere presence because the police officers telling the jury and this is the preclusion of the district court judge they hate the police have other various information that implicates him that's what the district court said and then strangers the he says the defense counsel you have to make your questions tighter tighter tighter than where was mrs wilson but how can you be tighter than that exactly and she gives answer was yes your honor i believe that would be an entirely different situation in that that would give the jury of reason to believe that there is additional incriminating evidence direct reason to believe he or the district  determined that despite that concern being there in the context that testimony did not unfairly by judas the defendant here this was the off hand in the  any information on my previous questions to opposing counsel with regard to the time frame tween the statements yes your honor i did want to address or question after the first instance there was no break  and the witness was not afforded the opportunity to understand why the objection was sustained let me just ask your responsibility though to walk back to the witness and say we just had a sidebar with the instructions being made not to use that word don't use it again the prosecutor was not afforded the opportunity to do so here however the district court did allow a break in trial after the witness's testimony for the prosecutor to in monish the remaining law enforcement witnesses commonly known to be different target is a pretty charging term defendant as opposed charging term target suggests that this person is the focus of the law enforcement investigation and that seems to me to be a commonly understood police nomenclature you refer to this as just simply police nomenclature and that's the whole problem is that people understand that if someone is the target of an investigation  lemonade excluded any testimony regarding the basis for the search warrant specifically precluded the government from offering evidence about a confidential informants information that the defendant had previously dealt drugs from that apartment and also the use of the term chuck to refer to the defendant how is that different from his status as the target that does not disclose your honor anything regarding the probable cause what constituted probable cause for the that's right so in those are two different things yes your honor in the context respectfully i don't think it is a fair assumption that an average jur d it could respectfully be a synonym for the term defendant because what they're talking about is the person who is being prosecuted the person who is the object of the  prosecution and standing trial the word target is very similar to the word defendant in that way but nevertheless the court did recognize the risk of unfairness and to mitigate that the court did several different things it instructed the jury to disregard and we presume that jury followed the jury follows the instructions of the court it is it sustained the objections on the record that permitted the parties to break in the trial to ensure no repetition of the use that term and instructed the jury again at the close of the case to just regard any and anything that court had previously said to disregard so in so doing the court hearing any risk of prejudice from that testimony in the court was positioned in a way to be able to assess the effect of that testimony the court was able to cure all of the evidence was able to observe the witness was able to hear how we have a chance was coming in and terms that there was no unfair consequence to mr johnson by the witnesses use of the term of the term target counsel do you think there was enough discussion at the sidebars between the district judge and the defense attorney additional instruction to the jury that any testimony about the target of a warrant was irrelevant to the issues to be considered by the jury at trial defense counsel did not want the court further instruct the jury so the court did exactly what defense the district court did not air when it declined to give them their presence instruction at trial it properly instructed the jury on the elements of the offense including knowing possession the mere presence theory of defense was incorporated in the instructions given someone cannot both be merely present and knowingly possess narcotics the elements instruction was the affirmative way to present what constitutes knowing possession what the defense asked for was the flipside of that boy and the district court had the discretion to determine that this type of instruction was not necessary because it was depleted and also because it was not a great match for the facts as judge sykes pointed out this is an odd case for that instruction this is a case about constructive possession based on a totality of the evidence evidence that included the fact that the defendant resided at that apartment the defendant and needed the drugs were hits the defendant's personal property history to figure title for his car was found on the same piece of furniture as heroin on the plate this was all evident including partly of the girlfriend's testimony that the drugs were not hurt and that  defendant kept his belongings there the defendant also admitted to living at that apartment and said that only he and his girlfriend were people with keys to that apartment that was the evidence connecting the defendant to the drugs the fact of his presence at the time of the search was yes runner he was convicted of knowing possession of drugs but acquitted of the knowing possession of the guns and the guns and the drugs were found in the same apartment where that was present so the point was not lost every bit of the legal significance knowingly requirement exactly  michael in answer to your question judge hamilton the this trial was requested on the morning of the second day the transcript begins on the second believe that page one hundred  thirty five and the first mistake occurred at one fifty eight of the transcript so i would say probably about ten thirty in the morning of the second day as to whether it was a violation of the  it very definitely was the judge's ruling was limiting the government eliminating the government's ability to introduce evidence related to the basis from the search warrant there was no disagreement in the district court that the  police officer statement did exactly that there was no doubt in the prosecutor's mind that it violated the order and the prosecutor had specifically said that he had discussed the order with police officers prior