states morning i'm jim brandon i represent mr hayes on appeal i'm going to start with the sufficiency claim it's been a while since i raised one of those oral argument but i'm sure the court's aware that mr hayes was not found actually in possession of a firearm the firearm at issue here is a shotgun that was found in the apartment where he was when the police executed search warrant mr hayes was found in the living area of the apartment in the nexus between the dining room and the living room as you move further into the apartment there is a hallway near the kitchen a woman was found there carrying a big kitchen knife she was and that was simone as her last name and then a small boy was in the very back bedroom there is a nd bedroom that was before that one as the police were moving through it and as one would move through the apartment and inside a closet in that bedroom was the sho the only other things that the police could remember that were in that closet was a fleece and a sweatshirt i think there were just two bedrooms so this calls that was inside the nd bedroom the child was found in the other bedroom but i don't know if the bedrooms were designated child's bedroom or adult bedroom the jury was charged as they should have been i believe that because there was  they were charged with actual possession but like i said there was no actual possession and then they were charged that they could find mr hayes guilty if he had the power and the intention to exercise control over the g you know obviously construing the evidence most government the jury could certainly have found that he was residing there right i think that the jury could of although there is evidence contrary to him living there were six all in one piece of mail didn't wasn't an address that was the place where the where the apartment as his name was on a different at a different address correct not the spawn and then there was a benefits card and neither of those were found in the bedroom or in the closet they were found in the living room you're right he said who shot a shot in my house and it's going to have his address woman address on it but right now i think that's a misstatement i think that the mail the piece of mail had an address that was different from this residence and the benefits card i don't mistaken but i don't think that's so the only piece of mail was like i say at a different address but you're right he said my house when he got arrested he gave that address as his booking address or his place of his residence so i would say to you that yes i think that mr hayes at the very least had permission to be in that apartment regularly and i think that one could argue that he had the power to exercise some control over the gun but there's nothing in this record that shows that he had any intention to do so so there's nothing that directly ties him to the gun the fleece the sweat shirt well the jury was charged that he has to have the power and the intention to exercise government has to prove it judge it's not i mean we could make some innocent up positions all the action of a jury to have concluded i think it was irrational for the jury to conclude on this evidence that there was proof of his intent to exercise control that there was sufficient evidence to prove that he lived there i think i have to concede that on some level evidence to prove that he possessed the gun as opposed to the someone else in there all right but i will also say with regard to whether he lived there  there was nothing of his possessions other than the letter and the benefits card that the parties has by saying that he let the house the house was by his girlfriend and his children i think both parties in opening statements or in my misremembering i don't recall that either i remember an opening where after the defense attorney introduced himself he said mere presence mere proximity mere association that's what this case is about so that bleeds into my fair trial points that's point two i think this court in vasquez sort of already ruled on this issue that when there's enough factual basis in the record courts are better advised something that they shouldn't have done well this is exactly like vasquez because that's the argument that sort of came up in vasquez and the point is that it really focuses the jury on mere presence the defendant was in an apartment it's true right near proximity he was fifteen feet away from it mere association with ms simone that alone is not enough and that was his point and i think that by not giving it a charge it actually undermined the whole defense what what the opening was and what the close instruction invest  here was the same on the other points which is that you know the gun is there you have to you just went through the control over it be able to exercise control room and have the intent so mere presence under that instruction is not enough you have to know the i think it easily could be misled because what the defense attorney was trying to get them to focus on really was mere presence the language that the court uses here had the power and intention to exercise control over it is something of a nuanced legal ease concept when you boil it down for a jury and you tell them it's just not enough that he was in the apartment i think juries get that that speaks to actually the real life circumstances of what the defendant wanted to present to the jury prejudicial so you could save yourself on the president president prejudicial air aspect of it where they found it not prejudicial invest because they would find it prejudicial here meaning you all principally because that was the main and repeated thrust of the the defense throughout i think that the the redirect examination of the defendant of the detective which is my rd point also dovetails with that  argument the i'm going to continue unless you tell me to sit down ok i'll be quick with regard to this with regard to the rd point in the brief there was a pretrial ruling that precluded the government from introducing evidence that there had been confidential informant buys after and cross examination of the detective the defense attorney asked the defense the detective s me whether the amount of marijuana found in the apartment was consistent with personal use and whether simone was charged with any offenses either with gun possession or with drug possession and the answer to that was no and the answer to the former question was yes it's consistent with personal use to me i don't see how that created any false impression about the case the theory was that somehow they picked on him as opposed to some on and that this was just marijuana for personal use but they had surveillance of him selling marijuana but it's not a marijuana case what's the joint understanding about marijuana only does it certainly does explain why he might  because there's marijuana in there because there's violence and drug transactions so it provides the perfect explanation of why he would want to have but i think that's fraud as you said before that there wasn't anything and unfortunately that the supplies the answer to end and that was his theory that's why he asked the question wasn't he asked the question because you wanted to make it into personal use case and and it wasn't necessarily and said no you were not to let you put the drug transaction stuff in and then and then the defense counsel went ahead and said well you know this is personal you know i mean the rewarding took away the the value of the the in woman a ruling in the court which it was personal use though there's no false impression that oh i said what he was he was they had him surveilled selling drugs so walk in and say that because they found drugs in a place it was for personal use kind of kind of opens the door for an explanation as to why it wasn't does not i have i have a i have a i have four packages of cocaine in my desk and they come in and they arrest me and i say well that's really for personal with regard to marijuana transaction undercut the defense that he was trying to use yes i think that it does ok but that was ultimately not a defense that was being proffered before the jury because there were no charges about marijuana design education or sale because he wanted to minimize the fact that it probably looked bad that there was some marijuana in the apartment i don't think that should have come in in the st place to get some on you understand which he's entitled to do why can't  that why can't he say it could have been simone's going to could have been her marijuana ok thank you good morning may it please the court katherine gregory assistant u s attorney representing the government in this matter i'm just starting off where my my esteemed counsel left off with the direct evidence i think it's important to know in the transcript you can see that count defense opportunity to have this gun and this marijuana and that the police apparently chose someone at random to assign the gun to and that simply wasn't the case and the weighing of prejudice versus relevance can change in a rule for a three as this court has held i think in a different vasquez case as as as testimony proceeds and the person in the best position to make that determination would be the district court who can see the witness testify and hear the testimony and see the effect on the jurors and then make that determination and that's what exactly what happened here with respect to the jury instruction itself the in this report noted i think in the notes is the defense opened the door with this line of questioning but then the government walked through the door so now the marijuana transactions come in but then a very strong assertion of the relationship between the gun in the marijuana and what w that's was consistent with personal use and other interpretation is what the government offered is that's a small amount but there were he was still selling and once that door was open the government was entitled to then use the evidence that was in the record to make the argument that they made in the summation which was why do you have a shotgun because you're selling drugs out of the house now had had defense not open the door to the government would have made that argument summation but the evidence was in the record and as the evidence was there the government was entitled to submit that to the jury allow them you know they didn't just jump right back in they went up and they said look things have changed can we can we at least bring the senate to show that there's not this false impression with respect to the instruction of the district court noted that in the notes to the request instruction the mere proximity i think there's a note that there's a risk of confusion for juries and the district court cited that when he denied the instruction he said it says right there in the notes that there's a risk of confusion and that's why i'm concerned about and the vasquez case cited by the appellate involves i believe a defendant who was just in a high crime area and was found in mere proximity this was a shotgun that was in a closet with a male jacket a male flannel shirt described by defense counsel as being male clothing where there was an abundance of evidence that the house w his it's simply different circumstances and even in vazquez it was it was noted that it might be best practice to include the mere proximity but it was still upheld the instruction that was given in this case as well with regard to the can make the argument  i mean it wasn't his gun belonged to another occupant of the home in this case his girlfriend and he absolutely made that argument and this instruction have clarified that this was his defense that he was merely president apartment he lived with someone who happen to own a gun a defendant is entitled to jury instructions that reflect his theory and that theory was reflected the district court did give instruction that it can't be the product of a mistake or accident if if the jury had believed that he was just there or that it was just an accident that he was merely present they wouldn't have found him guilty and i'm not quite seeing how this instruction would have been confusing doesn't mean it necessarily had to be given  on the facts of this case seems like it might have been a help instructions and what am i missing it may have been helpful and maybe it made on a bit about the district court's determination here allowed for the reflection of the defense's theory avoided what the notes noted and i don't recall the exact phrasing of the notes at this very moment to that instruction but the notes did say that there is a risk of confusion i wish i could do more than refer the court to that giving this instruction i'm sorry  government objects to the instruct yes yes the government and again the defendant is not entitled to have an instruction that parents his opening in summation i'll note that he did use that same phrase even after he knew that he wasn't disconnect here between the right decision itself and the appellant's argument right before the jury miss instruction case it was not a jurisdictional issue there and of course involved immigration and not a felony status here the appellate is saying that the indictment i somehow deficient even though the statute hasn't changed since rai this court consistently upholds indictments that do little more than track the language of the statute and that's exactly what the indictment does it track the language of the statute and  it just doesn't seem that right is really applicable to the indictment portion at least of the subject matter jurisdiction him even if there were a flaw in the indictment you know this common sense and reason tend to prevail over r there might be error that is plain but there's simply no way that it substantially if that affected the substantial rights because there was a stipulation here has stipulated that he had been convicted of a prior felony and if the instruction had been given i just don't see of a controlled substance and criminal possession and felony assault which collectively he did more than eleven years in prison rather than to a stipulation in this case on these facts and i just i don't think there's a competent defense attorney who who would have allowed the government to do that by foregoing a stipulation in it the other circuits that have considered these kinds of facts where there were was a stipulation have noted that the stipulation in conjunction with a lengthy prison sentence for those defendants wh would be sufficient in that it was you're saying that that was that's the right approach i mean we have not issued an opinion maybe another panel before ours will issue an opinion before we do your theory is this is instructional  and then in deciding whether there was it's plainly or you can go outside the record and look at the fact that the defendant had spent a substantial amount of time and imprisoned in saying that it was in plain er because it would name a new difference which just seemed to be with these other circuits of time i don't think that you need to go outside the record john i'm just pointing out that that when the th or th circuit shadowing outside the record if you look at his conviction history and and his imprisonment it's our position that just looking at the stipulation where he stipulates that and defense counsel said in his summation we know that there was you know that he falls into this category that i don't know the end to use the word felony but he said we know that this is the case there w stipulation it's our position you don't need to go beyond the stipulation because had there been an instruction there's he knew that he was you can certainly draw the reasonable inference that he was found just as you can draw a reasonable inference from the evidence in other ways so just as you can draw the inference that he lived in the house and that that was his shotgun based on  for the error the outcome would have been different and i just don't think that with this stipulation and with the record as it was that you can say that there is a reasonable probability that the outcome would have been different the idea is it doesn't have to be in the trial record before the jury we can do plainer view and look at the p s r and make this judgment it's our position that the stipulation is sufficient for a rational trier of fact to make that inference thank you yes just briefly with regard to the new supreme court case and i think it's noted in the behnam or decision which is the th circuit case it used to be that there were three elements to and twenty two g one charge the defendant was a felon the defendant knowingly possessed a firearm or ammunition and the firearm or ammunition was in or affecting interstate commerce now added to that is that the defendant so he was charged by and men on or about august th two thousand and fourteen having previously been convicted of a felony on x date and y date he unlawfully did knowingly possess so the problem is what it needs to say there as having previously been convicted on those dates and knowing that he was so convicted and you're asked the question as does attract this does the supreme court read the knowingly opt into the status element was just just a little pointed out quite well the statute hasn't been amended to to rearrange it the statute reads the wind reads we can understand well i would i would