morning may please the court i march silversmith for mr aereo a appellant in this matter the main question that the court has to answer is whether nine twenty four c one a defines two separate offenses i think it's clear from the decision of the eastern district court in pleasant and the sixth circuit in combs in their analysis in both those cases that it does and i don't think that the case cited by the united states to the car is to the contrary and harris the court was addressing a completely different question whether the different factors were sentencing elements and i don't think that this court can glean from that dict the court was intending to make any statement about whether the carry prong in the possession prong are indeed two separate offenses if you look at this way that the statute is structured and specifically the legislative history in which the possession prong was added after the court's decision in bailey and was added specifically with a higher standard of participation it's quite clear that two separate offenses are thus charged in that statute and what you have here is one count charging two separate offenses and it only a general unanimity instruction at the end to both the prosecutor's closing argument and the court's instruction permit the jury can to convict on either of those two offenses that are charged in the statute could i ask you question i yes your honor understand that's easy there's a gun in your hand you're using it but what is the difference in the statutes use of the word carry in the statutes use of the word is that as well i think possession as you are now can be actual or constructive and it's particularly apt in this case where the gun was in any a glove compartment and my client was in the back seat and that was my initial thought to the possessed is a  but that's because the law that's the law that we have the gloss we've put on possess but the term itself if you turn into a dictionary would have a very difficult time defining  this is the are the are the words themselves define some place well look at the united states statute oh in the statute itself no but if you look at the u s supreme court decision in baling which is what led t possession pran being added i mean that's the supreme court which is of course binding on all of us says that possession is much broader than use or carry and that you cannot convict somebody u broader that under we can define possess meaning something in their possession which extends beyond their person right and that's i think what the u s supreme court satisfied with that i'm satisfied could the government have charged count one user carry count as i think that's what they were quired to do and then we would know what it was that my client was convicted of and if the jury actually agreed on a arguable overlap between the two things it wasn't brought up your honor if you really want to adopt a rule that allows two strikes on especially one criminal act i think you have to that's not what i wanted think it's what congress wants it's what it's what the statute says first there's two offenses in that one statute and you have a duplicity problem if it's charged and it's objected to in the trial court and you have know i think there are two separate acts and i think that's the point and i think we would have a clarity with respect to jury verdicts that we don't have a nice case and to save some time in rebuttal i think the opposition's going to say that's true if they're talking about two separate actually three carry use possess and all they said is because possesses broader as you say there's going to be a higher standard to meet that but it's just three so that three separate acts that are contained in one statutes of one crime what's your response to that argument that i think is going to be made well the use or carry is in the same clause and it has the same standard of participation during in relationship to the drug offense or the crime of violence so i think that if that argument were ever made that this court would probably say that it's the same cause it's the same standard of participation so it that's their argument i don't think that they made it particularly well because they relied on harris which i think is is but if you look at the statute and you go through it the way that the present court did in the combs court which i think is essentially unimpeachable you have two separate relative pronouns it repeats the word who who ever in furtherance of or ever in during in relationship to and then it has two standards of participation and two different types of conduct in those two different dependent clauses so if you look at the statute it's not like you know eighteen u s c one thousand and one where it less you know all of the different types of fraud upon the government in one and these two separate causes and you look at the legislative history in the way that this came about in response to the bailey decision and the senators were apparently very interested in making sure that you know stated that this had to be a higher standard of proof so if hypothetically you had a kidnapping statute that made it a crime to capture or take away another person separate and that's kind of the classical turn and of means and they say whoever of ducks you know a person in it and then they say or whoever takes away a person who is lying in a car or whoever it was the third one that your honor sent can't ever capture is a person who was upon the street you know if you made it three separate offenses and one of those particular things was specifically added because the supreme court stated it was not covered with the statute and then they specifically added a specific intent element that was not applied to the other two i think they very well might be different in that in the way that your honor first phrase  that were this court to accept the combes rationale that this were two separate statutes we can know in this case that all twelve members of the jury found that he carried during in relation is asked was are rather used was not instructed to the jury that was charged the indictment but that was a theory the evidence really didn't support but here the two theories that the two means the statute that were instructed and more argued and i would add properly which is separate from the combs case where it was kind of a bully a base of possessing during in relation here the court and the prosecutor kept it very straight sas in furtherance carry during in relation here because muster relative says as a matter of law that a gun in a glove box which is exactly the same thing here is a carry and as we've already established through judge wallace with the appellant that possessed is broader any juror who found that the defendant possessed the gun would also find any juror who found possess in furtherance of must inherently have found that the defendant here carried during and in relation therefore there's really not a unanimity problem even if there were a six six split because those who found possess in furtherance found a higher burden but i still think that this statute really does indeed separate two separate means to commit the offense and i think this court's case united states versus you see oil and its four factors determine whether it's separate means or separate crimes pretty much all of them are very strongly in favor of this being one statute i think the sixth circuit may have made a little bit of a hasty conclusion that just because congress was making what's called what we can agree and what's remarkable about this statute is the way that congress made sure that there is this a similar connection under the statutes between the firearm the defendant and the predicate offense the single evil which is the first oil is congress is very concerned about the heightened danger and serious injury and even death and it can can occur when there's an involvement of guns with violent crimes and narcotics crimes here the possess prong is broader and that's a lower threshold of connection between the firearm and the defendant well the carry in this case or using generally would be a higher connection between the defendant and a fire whereas on the connection between the firearm and predicate offense it's the saws and flips the possessed requires a higher connection between the firearm and a predicate offense whereas the use and carry requires a lower connection in sum it ends up being the same connection congress has drawn very precisely a similar connection between this conduct with separate means i think the sixth circuit by focusing so much on the fact that the in furtheran is a higher burden lost sight of the fact that the possess is lower and that it is intended to reach the same heartland the same evil of conduct i think the legislative history also would support that the fact that this was a bally fix would not solve the issue all by itself the fourth prong as would congress have ever intended there to be double punishment for conduct that was so related and i would submit to you that it doesn't make any sense that you know if the predicate offense were a drug crime with a sufficient amount of quantity in the gun or discharged that one defendant one firearm and one predicate offense would be a ten year mandatory minimum for the predicate offense ten years for the discharge a firearm and another twenty five years for the subsequent  doesn't make any sense under the statute itself and again it's possible there are certain statutes that may be separate crimes but it would be multiplicities that punished for the same crime nevertheless that is one of the u c l factors as to why this should be considered one whole crime the third one again is the nature of the prescribed conduct with which i think i've gone over a little bit in that it's really about connecting a defendant a gun and a predicate offense and as the u c l court  mentioned it with respect to the third factor the third factor about the nature of the fence says that it's another reason why you should find this to be one particular crime if in many cases the means to commit the crime emerge i think that this is one of those examples where they do come in and out of each other they do merge in the sense as i've said before that any juror who found possessing further in this case must be found carry during in relation to i do think that distinct and that congress had a reason to add these separate means because as judge wells was saying before there is a distinction between possess and carry for example a firearm in a house that's not on somebodies person conclude that that's a carry because it isn't on anybody's person isn't mobile in any way nevertheless it may be possessed by the defendant and the connection though because it's not being used to carry would be higher so there are distinctions between the two means to commit the crime just as in one thousand and one which the u c oak court dealt with which showed different means that are reasonably distinct in terms of proof one can be in one thousand one there can be omission that can be a fraud against the government or a scheme or trick that's a an actual false statement against the government so there the fact that there are different forms of proof with respect to these two means doesn't answer the question  respect to the very first prong on the plane or stature whether or not there's air i just don't think there is any i think it is one statute it's all one paragraph something the harris case really relied on now whether or not this this is playing air i don't think harris entirely answers the question i would agree that harrison did not answer this exact precise question nevertheless they the harris court did repeatedly refer to the fact that this was a single day did counsel have a copy of the jury form that was going to be given you are not sure if i can speak directly to whether he had actual notice of the jury form in advance but i would say the it's certainly the practice that somebody could object to a jury verdict form submit their own journey of jury verdict form i think in this case the jury verdict form is a little bit less clean than a jury instructions in the case and then the prosecutor's argument my question certainly i think there can be a constructive notice and every opportunity i don't think that this was a very form that was changed on the on the fly or anything else like that and again i think the verdict form counsel for the pump places so much i would like to address the constructive amendment in a verdict form i think the verdict form cannot just be considered a verdict form in this case because the judge read it to the jurors as part of his instructions in the case so it also became part of the instructions in the case and what the verdict form even more than the duplicity in the statute actually creates four separate types of offenses quote unquote that might have been found by the jury two of which are not charged in the statute whatsoever so the defense attorney did hear what was given to the jury and could have objected had the opportunity to object that's true that's true and that's why it's waves i think that's the federal rule as this court reviews it on a plane air ok thank you for your good think both sides with their argument the case just argued will be submitted to a decision