new in miami but we have that is not too far away i think we have experience counsel who is familiar with our stop white timing system i'm going to start of the trial in this case it was clear that evidence of propounds prior firearm convictions was entirely irrelevant as to both counts of the indictment and therefore it admissible under rule for four b prove the proposal was guilty of being a felon in possession of a firearm as to count one the government would relies solely on the testimony of a shooting victim the virus called him that he was severely wounded by shots fired at him in close range by proposal there was no question as or can be in some cases where the firearm was a fake the and there could be no question that purple knew that he was a convicted felon and that because of the knew that because of the status he was prohibited from possessing a firearm or passed so stipulated before trial the stipulation are so applied to count two as to count two the government would rely on ballistics evidence to show that the gun found in plain view in and out of view an automobile or that the person who handled it didn't know how to handle a firearm further the gun was found by police in plain view on the center consul of the motor vehicle so there could be no question as there can be in some cases where a firearm is found hidden underneath a car seat or inside the glove compartment that whoever was just seen driving that vehicle knew that or who was seen by police in a high speed chase as church and count two as to count one a trial several defense witnesses testified that on the eve of the shooting propound was with them at a family gathering pleading not guilty and the been in place is his knowledge at issue in court and then we said quote logic there's a logical connection between a convicted felons knowing possession at one time and his knowing possession of a firearm at another time and underneath i think the underneath the seat in that case so that's the kind of kids where the where the prior firearm conviction and be introduced to show prior knowledge and current knowledge that person was in possession of a firearm but this is not turning and well i understand that distinction i guess i am a stand that argument but i guess my concern is that in turn again we said by pleading not guilty a defendant places his knowledge at issue and it seems like the line that looks at this court's decisions again and again it specifically in analyzing the four hundred and four b issue refers to the defendant's defense in ell or which is in the government's brief the this court says ellis sores defense was that it goes on to describe it and goes on to show that to say why the prior conviction would be relevant in journey to get the case you just mentioned question two years ago the crux of griffin's defense was that he did not sarah and again is used so as a practical matter judge what i would say is that while i read the same words you just did in the opinion in reality what the what this court does is to look at the end to subpoena trial defense and analyze how the prior but the jury can believe or disbelieve the alibi defense and if they disbelieve the alibi defense the government still has to prove all the elements of the crime right yes and so why church but as i mentioned in my opening remarks the knowledge element of for four years i'm sure your honour's where it's extremely limited it's limited t entirely true because this is a done with a very big help to it's a constructive possession case just you know there is no he wasn't found with the god and so there was an element that the government had to prove that it was the knowing possession of the gun it wasn't an accidental possession where you know you like you say you drive your grandmother's car and she's got a shotgun in the back seat or something weird like that so we count too isn't there some element where the government would have had to prove that it wasn't accidental possession he was driving this car i don't think so judge because again as i mentioned in my opening remarks the gun is found in plain view right there on the center console so this is not a this is not a case where the defendant said i didn't know there was a gun in the in addition he had filed an alibi distance indicating that the defense was not i didn't know there was a gun in the car is defense was i was in it not in that car and when that's the defense it becomes a violation of rule forty for me to tell the jury as unfortunately the prosecutor did in this case in closing argument in trying to decide whether or not the defendant was accidently at the scene of the crime you can consider the prior convictions that's wrong that's incorrect that is not why a prior conviction comes in that saying he did it before so a rule six or nine so for you for your honor but this court reach six hundred and nine would be to reach an argument that the government has frankly weight but in addition on the merits perhaps the defendant does not take the stand and realize on his trial lawyer stross examination of the police officers to show that he was actually in that car after all this was a high speed chase at judge relying on the court this court's guidance published non published in making the type of for a four b decision that arises regularly in felon in possession cases and particularly where constructive issue so the operative question here is whether the district court made a clear error of judgment in allowing the prior convictions and when this court cases indicated yes and when in light of the facts known to the district court at the pled not guilty and he only stipulated to the knowledge of status known and so i don't believe it's a controversial point to say that heading into trial it's the government's burden to prove beyond a reasonable doubt prior to trial notice now by the defense during his opening statements he called this a police evidence case he said the police evidence is going to be inconclusive as each of the counts and as to count two he said count two is based on don't you're not there at trial i guess right now is on yeah so at trial you know the prosecutor says we really need this forum for be having this because this is a highly circumstantial call an end to question the credibility that government because we we see this over and over and over again and you go on the front pages listen how much evidence there was so we really didn't need the forum for th made the central issue of the case the government's evidence and so yes the government at the time was worried about a lack of connection between the firearm because there was a lack of friend about about the sort of ten tangentially related to what our trade mart was talking about so i understood what the government was saying at the beginning of the case to be this is not a case where we found this guy with a gun on him this is a circumstantial evidence case and distinguishing this from a case where you know the typical felony possession case where you find the guy who got the gun on in a case and i think that's the i think that's the line that the government was drawing there to say that's why this would be relevant i guess my question is is that really true because of what mr powell is hard to mr cohn has argued that this is not a situation where there was constructive possession at issue this was a situation where the gun was visible in the car and is that a line that we should draw w the government would maintain that constructive possession was at issue when st of all like i said in opening statements they were denying the fact that there was d n a evidence fingerprint evidence on the gun they mention that it was in a stolen car as the government's burden to prove that mr curveball intentionally and voluntarily exercise control over the gun and with just circumstantial evidence i mean yes it was a plain view but with just circumstantial evidence you're leaving open the defendant saying in closing the government doesn't you know there's no d n a evidence there's no fingerprint evidence this was done in a stolen vehicle the government hasn't proven that i exercise control and the defendant exercise control over this if the wind be different and i guess this goes to this issue i mean with the wind be different if this were a not a constructive possession case so if this were a case where for example just count one was issue where it was not constructive possession it was either he shot the guy or he didn't would you concede that in that kind of case this evidence would not be relevant to anything it might i would respectfully wouldn't concede that and i would say it might be relevant but under the forty three dollars analysis it might not be very probative and that's where we really get to the issue of whether this evidence should come in or not because it's about prosecutorial need but the overall similarity between the extr for a non propensity issue what i would be relevant for me an absence of mistakes and he had to go in his pocket or something i mean exactly so the government as the jury is was instructed here we have the govern us prove that it was intentional on voluntary and not because of a mistake or accident and so without you know putting on as much evidence as we can into regarding the the defendant's state of mind was he voluntarily holding the gun was he intentionally holding whether by mistake or accident the government leaves open those such the arguments in closing and so i would say again it would be relevant to proving those those elements when the defendant pleads not guilty in a constructive possession case evidence of prior possession is relevant and not only relevant but admissible generally that's true based on  police and the police witnessed him throwing a black object on the ground and this court again said that it was an abuse an abuse of discretion to allow a prior or  conviction and under four or b to prove constructive possession and so the government yes would maintain that generally speaking if a defendant pleads not guilty in a constructive possession case the issue prior to his testimony was whether beyond government exhibit seventeen and eighteen whether the government can ask about his prior i believe it was a prior attempted murder charge and some other related charges and so there was a pretty extended discussion about rule six hundred and nine and the court evaluated all of these prior convictions couldn't government exist seventeen dollars eighteen  said look beyond those it's cumulative on cross so i just wanted to point that out because in case this reaches the point of harmless error i believe these convictions would have come in on the convictions come in to show that the that the defendant is a felon they're not convictions that would come in to show intent or mistake or something like that i mean here here back to the constructive possession question because it seems to me that if you the reason that constructive possession opens the do or a little bit involves circumstantial evidence that justifies we're both worried to the contrary the very reason for be exists is to present so the prior conviction comes in to say yes chances are he would have known since he was previously inflicted but here we don't have that situation there right there in the automobile and the