and that was the issue for the court and the jury and basically it's our position that the government just didn't reach its burden and then on that point  and i believe the same issue came up and that person ultimately convinced the authorities that he did not so the mere fact that there are drugs that are discovered in an automobile should not be but in fact it turned out to be something else so i view and i believe this court should review that and i believe that the lower court erred in not finding that the defendant did the what he had to in order to get the two level or three levels decreased under three one point one and that's all you have to do is truthfully provide relevant information evidence of a government and apparently there was some argument made about this the government didn't debrief him that he had already basically three times spoken with authority throughout the ca the only place that it's in the record i believe in the defendant's attorney and sentencing papers i think in his arguments that the trial lawyer made that  argument i'd have to check the record to find that point and i don't know that having further briefing would make any difference if in fact he's already spoken on three occasions throughout the proceedings and any it's interesting because it relates it's interesting because if you perceive a minor role or a mitigating role and you're set the standard to do you want the captain you can't be have base level of sense of more than thirty and he had a thirty eight reason i'm guilty of a crime but not the were you invited me for sure when i came across the border i was trying to avoid detection but not because i was smuggling drugs i thought it was smuggling people so you got me for the wrong a substantive amendment that was not accorded retroactive june seventh two thousand and one on this court subsequently if you know or that we addressed specifically the question of whether the jury instruction we've challenged violated the occasion rather than using that i think for a while for the statement as evidence that he was actually possessing the gun on or about those things the court or the government said we think that statement alone is prosecution incest all right we don't care we don't care whether he really knew because he's already admitted to possessing the gun a few weeks earlier when that if you arises and when the government creates that theory of the pro determination with respect to the june seventh argument the jury didn't need to hear that you really think i don't care about the seventh are you at least some of the jurors can say that and i just i believe that he was telling the police officers some evidence in the record that the defense lawyer did see the problem because at the end of the case she asked the district court judge can we poll the jury to find out with respect to which position are they convicting him of and then the government prosecutor and jacket the district court said no and had that been done we might be here we probably be here on the other issues but we certainly wouldn't be here in the position we are with respect to the jury instruction i think she's done and that now coming full circle back to the question of whether the issue was preserved adequately enough to have the harmless  thought i don't remember that it could very well be that that was the case i recall from the records she did of jack to the jury instruction she was objecting to duplicitous nature of the indictment and then at the end of the government's argument was you should find possession during the entire period of time but if you don't you must be unanimous as to the one that you do find and i did note that in light of the correction argument and the fact that reasonable minds can disagree that this court should not find that there was plain error particularly in light of the evidence that was presented then i'd also like to arizona that timeframe overlaps with the period of time during which the defendant admitted that he was on the reservation in that car shooting at the tickler gun and the argument that the government made to the jury was you base your conviction on that statement because that is corroborated by the fact that self evident and it's most likely because they are friends and have been friends for a four year period that they were we intend to argue that that is the period of possession and therefore the fact that the government superseded with its rivals time frame does not alter the charge that was present during its purchase and so you've got that as your starting point the government allegation was that sometime subsequent to that date forward and i believe that any of that because it all goes to the knowledge of the defendant regarding the existence of the gun and its relationship to the gun in the car and the people involved got to the jury and i think it's of the record strongly supports the fact that the government argued to the jury unequivocally that his statement alone could provide the basis for the conviction and i wouldn't go for the court to he traveled from sister to sister trained to a guy named richard hoover richard with the last name i now know whatever the situation was and the facts that were in dispute to the government decided that it was going to take himself i believe at that point he is out of we are running into a corpus electronic problem with respect to the court's discussion with the prosecutor right now argue that i think that does reflect the fact that the parties at least the judge the defense lawyer and the prosecutor believed that that was the law and that's what they were intending in the question of harmless recounts that certainly would clear it up and require unanimous instruction and i would point actually i did there's a lot of case law out there that that yours are presumed to follow the court's instructions and