they seemed to start out all right instruction number seven said since the defend is charged with possession of a firearm in furtherance of a drug trafficking crime are you saying then that district court had to define what in furtherance means or could be just record before we get to the fact that these extraneous definitions are thrown and i understand that's part of the problem but they just record big basically thinks the jury can figure out t and so the jury it's not just that they were relying on what we think are common sense definition of in further and they were actually relying on a definition that relaxed the say that this was confusing and not might have led them to apply a somewhat lower standard isn't that largely hypothetical on the facts of this case right and so that again that's way i agree with you this certainly looks like a mixture of expert testimony and fact testimony particularly when he started saying often a firearm is this and often people do that and i doesn't confidence that this jury verdict is fundamentally fair are is that confidence another word do we have some intuition that the outcome of this case may have been different for errors and i think that  that for me is the closing arguments where d the government uses oh sort of this misleading jury instructions or you know best that's what tresa jury and then said and you know that this is know why why is there intuition drugs and guns go together it's just an intuition because that doesn't meet the standard too or is no we have statistics we have training we we know i would like to proceed in the same order that mr thomas this started starting with the jury instructions and on that so you got it would be right i don't think there's any earthly way that based on the evidence and instructions here there is a distinction between the two either side meaning we all know that the in furtherance his action further in so language was added by congress after the bailee decision had offered a more narrow interpretation of the statute it's a different standard congress didn't just add possession to the list to use in carry maybe we all wish it had been in it's a higher standard so why why isn't there a real risk that this jury  didn't hold the government to a high enough standard of proof here and why does the judge gives extraneous instructions that are just going to confuse to the st question you're on i want to get your response as to why this didn't lower the burden st of all the elements instruction which has to be the seminal instruction identified in further and and nothing else as the arguments on the actual instructions given i think it's important to compare the three main show with that number ten a person carries by knowingly transporting in his vehicle or a container well that is really synonymous with possession here and by the way mr thomas agreed that he possessed a so i don't see that that figure instruction can cause any prejudice now we move on to the instruction thirteen it's a hearing means any point within the offense that is true for any offense correct i don't think there's any objection there so those two instructions i don't see how possibly could constitute plan air so that you simply hearing in furtherance and in relation and i don't think there's any daylight between the instruction given based on the evidence here so i will paraphrase it  instructions i don't want to just completely read but paraphrasing a few key points so mr thomas on his in his brief on page one thousand and twenty says the stock instructions were in for evidence would not have been objectionable that instructions that and again i am paraphrasing but i hundred and twenty percent possesses a firearm if it if the firearm facilitates the crime one there must be some connection between the firearm and the crime and point three the mere presence of the firearm is insufficient now scene three mere presence is insufficient so i don't see any daylight in any practical matter when that when those instructions reach the jury especially under playing air  as to how it happened i don't know what is the ideal instructional packets it was not but there's no daylight between that and burger instruction and that in relation to structure as the evidence was admitted looking at this is doesn't the united states attorney's office is a matter of course and here to seven circuit pattern jury instructions in cases like this yes it was it's not the it's not the st time there's been trouble with the seven  to you know after designation as well and so i guess the question i have for is isn't the u s attorney's office taking trying to take some care to avoid errors like this in criminal prosecutions so i think there's no question there's an office should have done better in this case i'm not here to say anything else the instruction i think it's a it's a two way street but this is certainly why an objection would be helpful here is i don't think that if there would have been an objection this is called the court's attention that this instructional package extraneous terms there would have been no object on our part to removing those that could have easily been remedied i think builtin your question resort and moving on to the expert testimony so on that your honor i will say it's the appellate division's responsibility to convey the message downstream of this court's opinions i thought that we had done a good enough job doing this post jab i sent an office like email explaining the decision and how we should proceed with and how a criminal division meeting that explained all that i thought i was mistaken i thought that was sufficient it's apparent that it was not so  this case is for further instructions we were going to have in person training course covered one scene delayed that so that's not going to happen yet after this argument we're going to send another in home training email to hopefully prevent this from happening again so we admit that we did not do a good job with the dual role testimony here but that's not the same thing say that it is my error i think it's it's fair to criticize the government's litigation on this case but showing  the stinks in on the dual role testimony from this case and jet or team gl is difficult so mr thomas points to the fact that in those cases we did portray the person to be an expert the court just maybe didn't do explicitly the gatekeeping role on the record that is a fair criticism of the government litigation in the court perhaps i'm not sure how it weighs significantly on harmless error analysis because that the evidence but if they're given this aura of authority and if this had been done by the book st of all maybe they have been qualified as an expert maybe very likely would have been qualified as an expert i don't know but this witnesses were gave expert testimony without the proper precautions that jet subsequently it gave and then that those witnesses gave the same fact testimony so there's really no distinction as to the evidence that reached the jury and how they were instructed and jet and single and that's what we really look at when we look at what was there much less under plane air was this something that misled the jury was the jury overly confused on those points there's nothing to distinguish this case symbol i do want to take a step back and judge roy you asked about whether this witness would have been an expert i think there's a little more in the record than mr thomas says so this is mostly i'm painting mr henderson and i think in during his time with the f b i he handled complex drug trafficking cases drug trafficking cases he was asked about his specialized training and he had especially on the record i assume this is all in the record this is this is page three hundred and ten of the transcript so that he has specialized training involving controlled substances so i would i would ask the court to compare this to single really that's about the same foundation as in team will the one distinction i can see is that  officer said the actual specify that he went to the county training academy but that's sort of a distinction without a difference or i think i mean an f b i agent with the f b i academy we all we all know that so i don't know if there's really a distinction there to me move them from being an expert and also i want to point out on transcript page three hundred and fifteen that before that the offending testimony about the connection between the drugs and guns the government did and what based on his training experience so even even though admittedly the jets are cautioning were not undertaken that sort of preface to a question does indicate to the jury that that it's more than just st hand knowledge and on that i would also note that mr raydon meyer was clear that he didn't have much firsthand knowledge because he wasn't there he said that explicitly on the record so i think there's less likely that the jury thought he had extraneous factual knowledge that made him more believable than a normal expert so if i could finish if there are no questions on cumulative error i made mr thomas argument i think that's good because he on this and perhaps because he points to many many errors but really when you get down to it there's only twenty one of them is the instructional area error i think when you compare there's no daylight and there's no possible room for prejudice whenever you compare the actual instructions and how the evidence was and what the evidence made it was so we're down to just the dual role error again and this case on that front is indistinguishable from jet and single as it reached the jury in that there are no further questions the