morning judge baron good morning judge liveness may please the court may i request two minutes for rebuttal to any permission thank you in this case the evidence was insufficient to prove beyond a reasonable doubt that mr mendoza possessed or constructively possessed any firearm which is the basis for both convictions do you mind before  you get into that just making sure that because there's a number of the tenants what arguments you're raising that you raise in your grief with respect to the conviction of your client yes your honor i'm reasonable to me yes honor i'm raising on behalf of mr and also that the evidence was insufficient to prove beyond a reasonable doubt the possession element of both counts for which he was convicted and as he yeah both both both counts those are two arguments then the third argument is that the court abused its discretion in admitting evidence that was unfairly prejudicial are weighing the pro value which is the whole scene of the shootout in the housing project mr mandelson's also raising that the court exceeded its limitations of power by shifting the burden of proof on and that such action was not harmless and we're also raising that the court heard in decline to instruct the jury that in order to be guilty of aiding and abetting for the unlawful possession of a firearm by a convicted felon that mr mendoza know that the principal had been a convicted felon that is that the government charged him in aiding and abetting fashion in both counts xavier also that the evidence was insufficient to prove beyond a reasonable doubt that mr mendoza possess a firearm within one thousand feet of the school zone and lastly the the that the that the court hear in order to uphold the jury's verdict now that's exactly what happened in this case in this case there was in france after in france after in friends after inference the first inference there's a shoot out now it is reasonable now if there is a shoot out people start running people want to get away from the danger people want to get away from the shooting and that's exactly what happened here people started running and the police officers that were close in the area testified that they observed seven sade individuals running towards a wall towards the other end of the housing project where the shootout took place if you look at the housing project from where the police officer was looking at it the shootout took place at the by both agencies saw these individuals that these individuals did not have any firearms they did not deserve them with any firearms they did not observe them with the masks they did not observe them with any fanny bags on them that was the evidence sweater yes they did but we that's that's that's one of the issues here we don't know if the individual with the red sweater was one of the individuals that were running we don't know if the individuals that were arrested at the entrance of the tunnels were the individuals that weren't we have to infer that we have to inquire that an unreasonable well it is on i don't think it's on reasonable to be for you to win well it's a reasonable to say that the individuals that were running towards the tunnel were possessed firearms because the evidence conclusively stated that they did not but that except that he then found in the tunnel and among the firearms that are found are so that i know you challenge this evidence but that aside for a second i thought there was evidence that at least some of the weapons too i think had maybe four had been fired recently that was correct there weapons that were fired get well it is reasonable to conclude that the firearms are not get there by themselves or somebody somebody have them somebody possessed them and somebody threw one there and why wouldn't it be reasonable to assume that the people who had just been seen running in that exact area right following the shots being fired were the people that took them there because the the evidence was that they did not they did not see them with any with possessing any  that's what the police testified that or that they got out your honor and they skate that you can infer that as well you can infer that the individuals that were arrested at the beginning of the tunnel were soft people running ran with the pack were skating from the perpetrators w shooting at them maybe some of the defendants were already in the tunnel when the others pain that that's the problem with this case there's so many reasonable inferences you can draw from the evidence that the government i don't think the evidence supports a condition because i think it's not reasonable to conclude that necessarily the individuals that were running weren't fact the ones that were arrested the individuals that were running the evidence shows that they did not possess firearms because the both police officers that observe them they testified that they did not have any firearms on them so that's that's the problem with this case it's you have to stack in france upon inf enough with regards to the argument that my clients know there was a school there i might find is not from dr housing project he tests there was at the evidence show that he was from there was no there was no evidence that the government showed except for the fact that it was all on the roof of a basketball court near the tunnel and then we would have to presume or assume and infer that that then they knew that that well the problem with the with the aiding and abetting instruction that was provided it did not it did not take into account rules that it did not take and take out the advance knowledge element that that in roles on the screen court resolve that it was why is the language that the chinese offense consciously shared the other person's knowledge of the crimes charged intended to help each other and took part in the endeavor seeking to make it succeed well why is why is that not sufficient to solve the most on problem because that is general that is too general i think the rosemont decision makes it clear that there has to be a specific to have the gun further the drug conspiracy that's correct so i get that but then here are the instructions says that the defendant had to consciously share the other person's knowledge of the crime intended to help each other and took part in the endeavor seeking to make it succeed so what's the endeavor that they were trying to make succeed why isn't a natural reading of that the crime  possessing the gun in the school zone so what this instruction would then be read to say is you consciously a shared knowledge of the full crime with the intention to help each other seeking to make it succeed seeking to make that crime succeed so that's not the same situation as rosemont in which there was no instruction that you intended for there to be a gun to further the drug offense here is telling like you share their knowledge of the crime of the gun being in the school zone and then took steps with the intention to make the endeavor having to go on the school zone succeed so why does the rosemont problem well the problem is that you can have let's assume one of the fed this participate in this part took in this but not necessarily agreed with possessing of a firearm maybe another in criminal endeavo how does the instruction oh allow a conviction in that event because you have to consciously share the knowledge of the person you're aiding and abetting having all the elements of the crime you have to have intended to help the person you're aiding and abetting and you have to have taken part in the endeavor seeking to make it what's in it it is possessing the gun in the school zone succeed so if you've taken part in the endeavor with the intention of seeking to make it succeed and you knew what it was as you consciously share the knowledge it had to go in the schools and why isn't that all that rosemont requires because there's no evidence of advance knowledge that's not an instructional problem right and that's just that's an evidentiary problem but i'm saying i'm just focused on whether the instruction is impermissible under rosana trying to figure out what is wrong with the instructor because the instruction doesn't incorporate rosemont in that sense in the advanced knowledge requirements that's i think that's it's just the general instruction requiring that they knowledge in person is knowledge of the crime charged in the the problem is that if they were not if they decided to withdraw or they decided to not partake in the possession of the farm but in another criminal activity then that is a problem i think the jury asked to be instructed specific jury would have concluded that although there's no more evidence of the other defendant who was also convicted of a felony possessing a gun then your problem is with that is that we don't know what grounds the jury really convicted on that we don't know if the jury convicted based on a principle theory or based on an eight are based on aiding and abetting who we have we don't know that is why the way it no no not not that i recall both defendants were arrested at the entrance of the tunnel none of them had anything illegal they they've now as it was will the jury would have acted on the theory that you're representing that they would have had to have acted on in order for the instructions are prejudiced well because if the jury believes that one of them possess a firearm but the other one didn't then then the that is a problem with this case that there is that evidence lacks in that in that sense as took the defendants that were arrested at the entrance of the tunnel because there's no evidence to ask your question judge from the record as i viewed it right now there is no evidence he in fact that he was a principal not that the other ones were not the other ones maybe aided and abetted him the jury could have reasonably found that and that is a problem then that if it is if they aided and abetted him all then the instructions abetting fashion as well as principal fashion now we requested that in order to be convicted of aiding and abetting if the jury decided that they had and abetted each other to convicted felons then the  a housing project twice previously for the day of the incident and i'm one of those occasions he was with three of the other co defendants so just so that is clear as your honor pointed out when it comes to crime of possessing a weapon in a school zone there's no way to consciously share in the knowledge of that and intend to help it succeed well that's not what's the key part that makes it comply with because it seems like you certainly could consciously share in the knowledge of the crime without having had advance knowledge of it in fact it's true and rosemond it so that at the point at which the gun emerges you would consciously knowledge at that point that the gun was being used in furtherance of the drug conspiracy roseman thought that was not enough right so it's i think it's the instruction as a whole as you must consciously share in the specific knowledge of the crime charged and if you think that's important but then you must also have intended to help each other but sorenson first let me just break it is this is i think important intending to help each other but it doesn't say there that you had to intend to help with the entirety of the crime so that would be just the problem again because you would consciously share knowledge of the whole crime that was true in rosemont you could have consciously sure knowledge of the entire crime at the moment the going to murders you had to intend to help well in rosemont you intended to actually said we've had the first circuit has had an advance knowledge for wireman and it's that conscious and shared for what was the well but that's what's bothering me is that we said in that case the consciously serve formulation saul's of but as i look at it did what was the instruction that the case you just referenced reference i believe it was an identical instruction that this is a model instruction that's been used in and and this is word for word the patent instruction do you know or can i believe so i'm happy to double check on that if it turns out that there's a difference to submit any ha on that point but my understanding is this is all directly from the model jury instructions for the first circuit and that also was the jury instruction that was considered in the case cited in the brief and i think that the using the phrase consciously shared to refer to the instruction as a whole is fair it's a shorthand in that he  makes it worse because if there's instructional error the jury was then told you could the law on this now absent that element if you've been the proper instruction then you're exactly right the lack of sufficiency of the evidence to support the theory means we must assume the jury relied on the proper theory but when there's instructional error we don't get to do that if there is a factually sufficient charge that was properly instructed which there was in this that it was also an improperly instructed charge also present so what's the government's answer to that i don't know of any case that suggests you can give a proper instruction on one charge an improper another and we just assume that they did it on the properly instructed one what we've said is if there are two properly the ending investor suction your is coupled with a instruction on the underlying crime that omits the element of knowledge of the person being am i think we come back to the same instruction that the aiding and abetting instruction does say that the charge defendants consciously shared any other persons knowledge of the crimes charged and given that all of us that crime was then instructed has maybe i'm missing something instruction on the convicted felon that was as you say no instruction that they had to know the other person was a convicted felon right knowledge of the crime charged in the indictment and his knowledge of being a felon  possession so it seems to me from reading that what do you do with the fact that am i wrong that there was an instruction which said that you could be convicted  of i have just rewrite the aiding and abetting instructions and i do not see that here so you say that because getting infections struction refers you back to the indictment and the charge in the indictment required you have knowledge of the person being  instruction and the government doesn't offer a theory of eating of it but i think the problem here is there is a general aiding and abetting such instruction so then the concern is in a case like that the jury may well have thought you could convict on eating of money because it was put in place by the instruction ok so to the extent that the government could have said make it clear that we're that as to count three eating in the vetting but the government went and i think that's why that he says jurors can see when there's a factually inadequate charge and we're not going to assume that they convicted under that this would still follow with that even if you set aside the question of the instruction there was and there is no language in the indictment that would tell the jury that to find mr otero guilty as an aider and abettor he had to know that the principle mr mendoza was a felon the indictment charges both mr mendoza and mr otero as principles aiding and abetting each other and it lists seven possible weapons of liability in the trial the government puts forward both series of princip during trial that describe the i c and it just would say as you know the indictment just says as a convicted felon yes you have to say anything about who knows it because if you are convicted felon we don't care if you know you're a convicted felon you just are yes your honor and the government certainly preceded under an eating and abetting liability theory at trial on multiple occasions in response to jackson's as who admissibility of evidence the government argued that certain pieces of evidence like the fact that my client had a son also charged in the indictment was admissible to prove aiding and aiding and abetting liability and in the rebuttal to their closing the government put forward the eating and betting principal or if they found him guilty as an internet better this court in us before it has held that the mens rea or requirement is an element of any embedding the possession of a felon so shared that other person's knowledge of the crime the crime is possession of a firearm as a convicted felon in the air and a better has to has knowledge of that person's commission of that problem the problem is your honor the consciously shared language is defined later as consciously sharing the knowledge of possession and if you go down the court goes on to say consciously share knowledge of possession submit that yes this consciously shared language that the court employed would be fine if our objection was that our client didn't have advance knowledge but it certainly does not tell the jury that they have to know they have to on day seventeen page twenty two he goes on to say defendants must have knowingly and voluntarily assisted in the commission with knowledge that the  possessing a phone yes the crime is possessing as as a felon however knowledge is defined as to knowledge of the gun and what makes felon in possession a crime is not the possession of the gun but in fact the fel before evidentiary standard this court employee was what is the evidence of the missing element here knowledge that mr otero knew mr minions i was a felon was it so overwhelming that any rational so the thing that is odd is you'd be imagining the journey thought it was enough evidence to show that the other guy but not enough evidence to show that your what could your infer from this that mr mendoza was in charge of planning was a principal in this crime mr otero was not seen there nor was his son so i think that is significant evidence thank you unless the court has any f has and i say this mentos that we're taking are charged with possessing firearms and ammunition in our acting commerce after having previously been convicted of a crime punishable by imprisonment for more than one year that's against federal law if you find the defend have this crime you must be satisfied that the government has proven each of the following things beyond a reasonable doubt first that they have been convicted in any court of crime punishable for charnock seeding one year that was stipulated so you are to take that fact is proven and those who were taken knowingly possess a firearm described in the indictment third that the firearm was connected with interstate and or foreign commerce the government does not have to prove that they knew their conduct was illegal the word knowingly means that the act was done voluntarily and intentionally and then it goes on to define the different forms of possession possession includes sole and joint concession near proximity is not enough but there is such a thing as constructive possession  firearm and that the firearm traveled in interstate commerce and that is exactly what the government to convict the defendant as principles and that those things were fairly proven and again where there's a basis that has  possession and intends to use the same instruction that was given for that event and in full so in preferences the indictment it references the the offense itself which requires being a felon so having knowledge of the offense requires knowledge of being a felon and i just want to emphasize that the instructions on how to convict them as a principle there were three things one of them was stipulated one of them was not seriously objected to the interstate nexus and so to the extent that the only remaining thing required for the jury to convict them as principals was constructive possession of a firearm they also convicted them of construction possession of a firearm under a shift so i don't know if you want to take care of any other questions  that just to clarify my prior comment about the while i thought it might be helpful to see the two pictures of the wall side by side so that it's easier to see what we're seeing ignores is one officer fontanne has testified that when he saw the group of people running in dark clothing away from the scene of the shoot out and he testified that one of them had some read on so there was a person with red in that group of people in dark clothing let me switch now since we're able to see so that is one of the perforations in the wall presumably there's another one behind his head so they're blocking a good portion of the wall but these indian actually those perforations in a very thick cement wall you can see the thickness of the fence there and that it comes almost as tall as the buildings there that the place where the shirtless people came out of and were arrested was that same tunnel where all the weapons were found so there's evidence that and i crews came out of a manhole in that tunnel where all the weapons were and where all the shirtless guys were one wearing a red sweater and a black jacket so in his brief you raise as an argument that he was coming out of one of the other tunnels and i just wanted to clarify that there are quite a few facts that support that he was coming the two defendants who were charged with felony possession with respect to the eating in a bed and you make harmless point that there's no reason to think the jury would include one possessed rather than the other she's answer to the jerk so i may have misheard her but i thought that she implied that the officer who testified that he saw men doesn't take up with three other defendants but that was the day before the incident that was not the testimony it was just prior to the incident so it could have then months before it could have and the previous year there's nothing connecting that particular meeting to this it's just evidence that they knew each other the same officer who was on his motorcycle testified that he got to the housing project within two or three seconds after the shooting stopped and that's when he saw a group of seven or eight individuals running from the shooting scene along this wall and so at every point where there was a break between the buildings he could continue to see that group and when they got to the wall which is in this area here observed three or four of them jumping the fence and that's when he made the decision to go around to try to head them off up here when he got there which he testify took maybe a minute or two there were already officers there that's how quickly they responded and so he waited  moment and then went around to the other end of the tunnel out by dr phil out went in there were already seven or eight officers so within bare minutes from the time of the shooting there were officers at both ends of the tunnel and this just goes to  pleasure i just want i just want to make clear that there's no evidence from the record that mr mendoza i was any more of a principal than any of the other co defend no idea of when this was it could have been years before our or months or or whatever it was i don't think that's evidence which the government has conceded that is not connected to the actual events that took made quite to begin with your honor the cases cited by the government linear the sixth circuit unpublished opinion in davis from the tenth circuit which was on planar review only deal with the consciously shared language in regards to  a reasonable doubt the internet as you just explained what's wrong with the government's they're in i'm just reading the text of that consciously shared language you have to consciously share knowledge of the crime and you have to have your honor the problem with the umbrella consciously shared language is that the court goes on to define knowledge in regards to yes but that it's not but it's relevant is the government's point that it does that because it does that with respect to the of liability which is what the crime is with the aiding and abetting instruction you have to have knowledge of the crime not knowledge of possession knowledge of the crime of the crime includes both the possession and possessing as well a convicted felon so i have to have knowledge of that entire crime since that's the predicate and then it says you must have provided assistance well seeking to accomplish it  what is the what's missing from rosen and you couldn't if you have knowledge of the crime and you assisted it in order to make it happen how could you be doing that without advance knowledge of the crime that would be impossible when you run or requires you to know of the problem and as you say the current includes more than possession it's possession as a convicted felon so you have to know that and then seek to make it happen  honor there was nothing in the instructions besides the consciously share knowledge that would alert the jury that they had to find mr otero knew his good if it wasn't you know him better and in fact in forward this court struck down language that was more explanatory in four of the line on xavier from the third circuit the district court instructed the jury that they had to find reason to know and there's nothing in the consciously shared language that is stronger than the reasons you know language that this court struck down and ford and clearly both the court and the government and the defense at trial all contemplated consciously surely which did not include the mens rea a requirement that's explicit on the