bestowal we know that you have been appointed under the criminal justice act and we want to know the court very much appreciate your willingness to take the appointment and represent your client in a manner thank you your honor may please the court government counsel my name is david costello i represent appellant jose drew who is currently serving a three hundred and sixty month sentence in us p beaumont firearm for purposes of today's argument well st all mysteries raise a number of issues on appeal i'd like to start with the issue of the introduction of evidence under rule four hundred and four b of six prior missouri felony counts of conviction for offenses involving possession of or illegal use of firearms as identified by the parties the proper standard for determining whether the evidence is admissible and a rule for a for b is that the evidence must be relevant to material issue similar in kind support sufficient evidence and its potential prejudice does not substantially outweigh its probative value as the court is aware and as indicated in the briefing mr drew concedes that the nd and rd prongs of that to a case that says how many convictions is too many convictions but as i point out in the in the reply brief is that the cases that the government appears to rely on to suggest that  those firearm offense related convictions are proper under for a four b appear to be limited to single convictions and so while while there might be an argument that a single conviction might be proper under way for a for b certainly once we get to the point of having six prior convictions it's getting to the point where it's it's not only cumulative but there's virtually no probative value to the additional introduction of those prior convictions such that the only purpose for introducing that evidence would be for purposes of  showing that mr drew is somebody who commits and has a propensity to commit firearm related offenses and so i don't know that i can point to a case where where where and number is set as to where where that limit is but certainly as additional as additional evidence of prior convictions is introduced would be difficult to argue that  now the government in its briefing suggests that that limiting instruction for instance is able to is able to address that very issue to overcome any issues of unfair prejudice however for those same reasons we're not talking about two convictions or three conditions of convictions but we're talking about six prior convictions it's pushing the limits even of the reality of how effective that limitation instruction is going to have on the jury and it's frankly also undercutting any arguments of harmless error the government can point to the fact that the jury knew that mr drew was previously convicted of a felony which is which is certainly eleven dollars matter but the fact is that after the introduction of these six firearms convictions the jury certainly left to conclude that the defendant is someone who commits firearm related offenses he's now charged with a on the number of convictions that they offer now or are you saying that even if they offered up one it wouldn't be material and if that's your argument how are you distinguishing this case from some of our case law on that almost that very issue yes judge and there is certainly a circuit caseload directly on point with that and in the in the briefing and and here today the  issue with whether or not that's relevant to a material issue mr drew relies on the d c circuit court case that is cited in the briefing united states feelin errors maintaining that the government has no obligation to prove intent and therefore none of those prior convictions would be relevant for purposes of a material issue so what about constructive possession is it isn't there an intent element of constructive that's evident in this case well with regard to the constructive possession yeah maybe well i mean don't take my question the gospel but i mean i my my question is is that a relevant issue for constructive possession well certainly judge it was it could be an issue for for constructive possession looking at the record  trial record and i should point out that i was not trial counsel but looking at the trial record the primary thrust of the government's evidence seem to be seem to focus on actual possession the government relies on a paid informant who gave testimony with regard to the defendant actually possessing the firearm as well as a photograph of the of the talking about his knowledge and again you could be getting back to the situation of if it's an issue for constructive possession certainly that could be fertile ground i suppose for the government to argue that one of these convictions would be relevant to that issue but they're still left with the they're still left with the fact that any subsequent introduction of those  circumstances i'm trying to keep track of my time here on the small screen  just to finish up with the issue of harmless error mr druce certainly maintains that there was not harmless the evidence again that the jury heard regarding the possession whether actual or constructive it was one based on this paid informant the anthony smith who initially stated on the stand that he was not sure whether mr drew actually ever had the fire question or at issue in his hand he certainly later changed his testimony and his answer but at least as an initial answer was that he didn't remember and councillors led with do you think that the the forum for the evidence in this case is more relevant if it's a constructive possession theory and you sort of gone back and forth on which one you think was the main theory for the government to do that that that seems to matter in terms of your argument for whether it's material when it does it that it certainly makes the a a conviction more material under those circumstances if it is a theory of constructive possession but it still comes back to whether or not six of these prior convictions is going to be is going to be probative at that point and it would still maintain that once you get past that single introduction of a firearm related offense that anything beyond that is going to be cimi what if and it's not going to be proper under under the prongs for for for a for b purposes regarding harmless error the evidence that was presented at trial was through a paid informant there was no recording of the of the actual meeting between  testified that it cannot be determined who took the picture or the circumstances of how the picture got to be on mr drew's phone there was a evidence that was real cover on the fire mr drew's d n a could have been transferred to the firearm without him actually touching it so given given the evidence that was presented at trial it can't be said that the  you know allowing the jury and the introduction of these prior convictions that the air did not influence or had only a slight and on the verdict such that the air was not harmless it was highly prejudicial and likely to result in a jury convict you mr drew based on those prior convictions before i run that time i do want to jump ahead and talk about  of the sentence itself the district court imposed a thirty year sentence here mr druce serving three hundred and sixty months for a single felon in possession of firearm conviction there was a codefendant in this case maurice jefferson he was the intended target of this investigation and the target of this controlled purchase or attempted purchase of this firearm mr jefferson  so he's convicted of possessing the identical firearm the very same firearm received a sentence thirty six months because this is a firearm offense and by operation of the guidelines offense level from presumably level fourteen jump in him all the way up to a level of thirty three so we're talking about a firearm offense where that happens where there were prior convictions will elevate offense level and not in a small small way within a district court or a line in large part on those very same convictions the same convictions that jumped him from mr drew i mean there was there was plenty on the record of assaultive behavior by mr drew while in custody and certainly we're not suggesting that that can't be a factor for the court to impose some type of variance but there's no doubt that a good portion of that upward variance was based on his his criminal history and it's that to go from two hundred and thirty five months on the low end of the guidelines the bottom up to three hundred and sixty dollars it's really that type of extreme deviation from the guidelines that  search warrant seriously undermines sentencing uniformity and for those reasons we do believe that the sentence was substantively unreasonable i see that i've gone over my time i apologize if there's any more questions from the court o a copy i represent the government in this matter mr costello has raised four issues on appeal he spent most of his time arguing the admission of the prior convictions and i will develop most of my time to that cited i have a look through all of them involve you know single convictions but i know that's not the case because this court recently affirmed one of my cases i was like remember the name of that offhand where there were multiple prior convictions entered  obviously if one conviction is probative two is somewhat more probative ny suspect that there comes a point if you have to let it work well i mean it becomes cumulative at some point but i know my i think my argument would be your honor it's it's like anything else if you've done it multiple times i mean obviously having done it two or three or four times is clearly more probative that one time or  saying propensity no i tend to tends to show knowledge if one shows knowledge why wouldn't two why wouldn't three i mean i'm saying that at some point you might get to remember a case where the court said wait a minute you got to eight or nine or ten that's too many i certainly know that we have we have affirmed this court has affirmed cases where you have more than three or six  his argument of course would have to be since it did not it that he didn't see it he didn't know it was there he didn't intend to possess it and so the fact that you previously possessed a weapon i mean some people have never possessed a weapon in their life there's people out there i'm sure who've never touched a handgun or had a handgun the fact that he's had had it before and in a criminal situation i think tends to show that yeah he knew it this time so it's not being shown it's been introduced to show propensity it's being shown that he knew it was there and that he intended to possess it now the defense argument is that based on this d c case that intent is done at issue but obviously you can have a situation where  say the police are closing in and i have the gun and ice i hand it to my accomplice and say here you know hot potato he knows he's got it but he didn't intend to possess it because somebody handed it to him that's simply  clearly a case where yes you have to not only know you've got it you've got to intend to have it and the construction the constructive possession instruction makes that clear that you look at possession and the intent to exercise control and it doesn't matter even if the d c circuit was right and intent wasn't an issue in this case it certainly goes to show knowledge so yes i don't think there is a number i mean i'm not saying that there is it wouldn't be a number at which point in mike you know it might be i that's too much but it certainly isn't three incidents six convictions and it certainly isn't a case where he's challenged it's not like he's admitted that he did it is challenge the sufficiency of our evidence i mean that's what's ironic about it he's saying on the one hand we did need it it was cumulative but on the other hand he's saying wait a minute all of the evidence that the government had could be explained away yeah we have the informant saying i saw him possess it but you know he might have equivocated on that we've got a picture of the gun on the phone no evidence who took it mr coffey though isn't there also in just the argument of prejudice though that you could have such prejudicial evidence come in and that that there could be the argument that all the jury looked at was well he's done this six times before and just make the decision on that so isn't there something to just the fruit can't semi freestanding prejudicial argument well the reason i mean yes he could make the argument but the reason the fact that that exists is why they gave the instruction and the courts have emphasized that the instruction that tells the jury you know one of the reasons we yet we keep out generally evidence of prior convictions is the fear that the jury is going to say he did it once he's going to do it again so we have tailored an instruction the courts have that basically tells the jury that's that what this evidence is being put into evidence for this evidence is limited to the question of knowledge and if you show if you if you don't believe that it shows that he knew it well then you have to disregard it and again the nature of this case felon in possession the court already knew the court the jury already knew that we're dealing with a felony here so it's got prior convictions this kind of case are going to have less prejudicial value than or fact i should say that they would normally because the jury knows it but the case law from this court has emphasized repeatedly that when you give this kind of instruction and jurors are presumed to follow their instructions they're going to set that aside of they're not going to say hey he did it before so he must be guilty this time that's why they give the instruction the other thing that tends to mitigate the kind of prejudice judge kelly you're talking about is the fact that you know how how did the the government treat this how did they emphasize it when they hammering away at hammering away at a closing argument and in this case we never said a word not because it wasn't relevant not because it wasn't in miscible but because we were aware of the case law obviously that says if you stay away from it in closing argument it's going to be less prejudicial you know we wanted to put it in there to make sure that we had you know all our bases covered that you couldn't say that as the defendant is arguing you didn't have enough evidence that certainly some evidence that shows that the key issue because knowledge and intent was the key issue in the case you know nobody was contesting that the gun that they didn't find the gun that they weren't trying to sell the gun the whole argument here was you know it wasn't me it was it was it was the other guy so i think the combination of the fact that the instruction told the jury that the fact that we stayed away from it in closing argument not that we were required to but i think we thought that all things considered that the that's the way to go and as i said the case law indicates that is a strong consideration in determining you know is how much is too much unless there are any questions on that point let me let me go to the he has an argument on mere presence which i assume he is chosen to submit on the briefs  guess i'll just say simply this was not a mere president's case obviously there was evidence that he had the gun in his hand we had d n a on the trigger guard there are at least three cases we've cited that say you don't even need to consider the question of of whether you know whether you get the instruction if there is no evidence of your presence but even in the cases where this court has held that  there may be evidence to support it they've also said that it almost every case if you have a situation like we have here where you've got the jury i mean this was that was really the only only issue in the case is whether you know he had the gone or whether it was the other guy and so counsel well counseled were you the one that requested the the instruction on ash mall versus constructive possession certainly giving the jury the understanding that the defendant could be in actual physical possession of this or are the constructive where they don't actually have to have it in their hands if that's an instruction that the parties  proposed to ask the court to submit to the jury why then isn't it at least reasonable to put forward a mere presence started to to counter that constructive possession theory of possession well lodged between the passenger seat which you could argue is constructive or when the other person was actually holding it you could argue construction so they said it was it was it was there but it isn't just i mean just the fact that you have evidence of constructive possession doesn't mean that's that's mere presence because mere presence means just there i didn't know anything about it and so do you think it would have been an abuse and since gresham to give the mere presence instruction in this case probably not because i think it was redundant for so i don't know who have you know obviously we don't have a right to appeal that but i don't think even assuming that that that we that we did it would have probably been extraneous and that's what the case law says the case law says ok even in situations where we say all right maybe it maybe it could have been warranted it's an accurate statement last certainly that mere presence doesn't get you convicted but what they've said is where you have all these other instructions to talk about actual versus constructive possession talk about how you had to knowingly possessed the weapon there basically they preclude any possibility that the jury could be convicted on a mere presence theory of the defendant could have been convicted on a mere presence there  and that's you know that's the point in most of the cases that you know maybe if you have a multi count case where one of these counts kind of gets lost in the in the woods but here this is the only case the jury was considering this the only  count the only issue they were considering and they knew what his argument was and the court's struction told him he's got to knowingly and intentionally possess that you can't be convicted on their presence i see i like a minute and a half left i did want to touch on the sentence i know it's a significant satins but as mr gust ella pointed out because of his prior record he had obviously in extremely elevated guidelines and we not only had we not only had  the prior three incidents of of robbery he was on parole from two of those and then you had just the the atrocious record i mean these are like felony offenses i don't know they're any more prosecuted as but in and of themselves where he's attacking guards he's attacking inmates he's doing all of this and this is consistent because i think there were thirty one conduct violations when he was in state court situated at any of these what is what is guideline range was or had any of the kind of conduct violations that mr drew had coupled with the fact that as i pointed out in my brief when you're talking about sentencing disparities you're actually talking about national disparities you're not talking about disparities between individual defendants so yes this is a situation where he did get a serious sentence no doubt about it but one is guidelines range was nearly three left would you like a minute to respond  judge just just very briefly i just want to reiterate the fact that when we do get to the point where six prior convictions are being introduced the jury is left with the conclusion that mr drew is somebody who does have a propensity and that can be the only reason why the government sought to and was u ltimately successful in introducing that evidence to the jury and it's likely that the jury looked at that evidence and threw up their hands and said mr drew if somebody who is somebody that commits