at the outset the central issue in the case it's our position that the district court's decision on three separate occasions to instruct the jury on the theory of jointing constructive possession when there is no substantive evidence to support for this theory and when the assume that there's none that was found in brown's house might have been the same gun but i don't think there's a single it wasn't weird where to record did they say the same gun i didn't see any and the very least couldn't a jury conclude from the evidence which factor on how often does a jury come back and ask these kinds of questions i haven't seen it happen very often it comes back they ask a question for clarification on instructions occasionally but how often do they come back and say if we believe that this guy's in yes u v with together with regard to is that enough or prisoner upon them are somewhat record i don't think there's any cases of point griffen on a record like this this would be you know there's an exception in griffin was simply saying this case falls within the exception looks like a subservient recognise of that exception applies at least in some circumstances sun card file exceptions were unusual records as you just referred to in fact the only car about that i recall from the cases is i think sign makes presumption is rebut it if you will by the fact the jury asked the question then somebody has to prove that the jury did indeed you know the presumptions were but it then what do you do then you have to say oh they did find that that's a possibility point in time somebody should have said why don't you i why are you instructing our constructive possession there's no there's no evidence for let's that's a problem but what happened what happens when the jury comes back and starts asking questions about constructive possession and you're busy crazy that one of those witnesses now your client i knew from before which in my book suggests that the possibility of misidentification is probably less than it would be in the jury is simply giving the government is cases of actual possession here which they charged as to each of these guys but of course as our system requires their trials were severed right where they were charged separately and were as i understand the government's position in this case from start to finish it was one of actual possession and likewise they had an actual possession case against mr brown it sitting on your mattress you would agree however that for some years now a canary but for some years the standard instruction to my knowledge not yet adopted as a matter of law by this court before closing argument course of trial an issue to whether or not in the defense the letter or note of mr brown would come in cryo counsel for  open as to the implication of putting  when was that statement that the prior inconsistent stated when was that given to the defense that was given to the defense when he made me aware that he was playing to use the letter from mr brown that we had provided ok quite frankly in most cases is just a leap too far to assume that they were but the presumption that mentioning griffen there's no way taking those questions out of context and parsing them at this point there's have simply been that they were asking for clarification on the law all of constructive possession not that that was the basis for their conviction for english just too speculative for the court to rely on the jury questions insufficient to support an alternative legal theory of liability it would generally be preferable for the quirk to give instruction removing that theory from the jury's consideration the refusal to do so however does not provide an independent basis for reversing and otherwise valid conviction i think that language and grateful makes it very clear and of course then the adoption by this court in sign that claims regarding the sufficiency of the evidence it just simply don't rise to the level of what would be legally invalid or unconstitutional and require a  where the united states position is is that the the argument that i made in closing was i'm not commenting on the by a long letter and then the subsequent confession as in the jury to consider it as a subset of evidence a problem that language are and i certainly would concede that the timing of that statement was an article and certainly the just the position of those of my columnist which it is my position that that comment began essentially ation of my closing argument i was summarizing the my opinion of the evidence at that point not making a direct reference to the the comments i just made about the braille letter and then the confession now as i said the timing is very unfortunate in this case because it does appear with that juxtaposition that those summary comments could have been inter i can see they could be interpreted as referencing codefendant and those cases where there is a joint trial you know under guten it's not allowed that's different from a statement it's not really a confession as to him but implicate it is because it's tough to limit and somebody has given a confession says well i did it you know but i didn't do it alone there's a it's a little more of a ring of you know beer in there so as compared to it was him r hill and his counsel could be the brown letter at issue and was the limiting instruction given early enough i mean when the when the inconsistent comes in as a prior inconsistent statements i mean that's how it's admitted but the court doesn't say anything about how the jury has to consider it is a little late closing to say in open the way you know that you can that statement you've been considering as evidence for for three days you know by the way you can't consider that i mean i've been a juror and it's very tough to undo you know something that has gone in your thought process well you know i certainly understand  the district court had given a limiting instruction prior to the introduction of was not requested when the state in no one and certainly would i would imagine have made it more clear for the jury of how they were to very thorough well what the government would argue is a very thorough limiting instruction on page three forty seven indicating that but the the say was a prior inconsistent versus marsh it's it's after the judge admonished counsel to be careful about how this evidence was used that they used you are certainly correct in terms of the timing it was not because it was a separate trial and because this is the statement of the kind of thing that came in as a prior think of it at least the portion of the statement that came in which was not the entire confession but the portion that judge rainbow allowed in was was introduced simply as a pirate consistent statement and all suddenly get up and start talking about a statement that he gave to the police in some sort of formal recorded setting and you realize at that point that it's inconsistent with some of the other evidence in trial so it was a pretty violation materialized and perhaps at that point coun a difference the fact that you've got two people sitting there perhaps side by side with their counsel and they are side by side and one doesn't get up and testify but instead it a statement of his is