good morning nicholas marking on behalf of jared marcum a please the court this is a an appeal from the eastern district of washington at trial that mr markham went through in which he was found guilty on count was bifurcated and tried to the same jury after the conviction on the st two counts in addition the court mr markham was found guilty of all counts he was also he was sentenced to three hundred months and he was also sentenced to twenty four months on a supervised release violation from his prior federal conviction in the course of the appeal we've raised numerous issues on appeal however i will focus my attention noted the vehicle and then pulled the vehicle over on the basis of a warrant for the driver now the district court german that mr markham lacks standing it is our position that he did not lack standing because he did have an expert expectation and his privacy rights in the fact that in the glove compartment one of the drugs were found and the firearm or also his prescription pill and it is our position that that is sufficient enough to extend privacy expectation what is your best case that would say that having the passengers pills in the glove compartment give the passenger standing prescription drugs which would elevated above that and have it stand issue of an expectation of privacy again there were no that is our position it may be a stretch and i understand that as to the issue the motion of eliminating we strike that there was also an issue that we raised and i believe our briefing and in our reply that there was also the issue of the officers maintained in the district court maintain that there was a reasonable suspicion to pull over the cadillac because the driver had a warrant however the testimony or the documents that were submitted at the suppression hearing established that the officers couldn't see who was driving the vehicle and therefore we would say because the judge relied on an implication or implying that it was ms torres when they couldn't verify it that that was not enough reasonable suspicion counsel only ask you a question on that and that argument there just has to be reasonable suspicion not certainty right that it's like a terry stop stand and that being the case why is it not reasonable for police to suspect that the driver of a car not is the driver than is in that suspicion in this case we would say that there's got to be in this case as to the facts something more in that they relied on the fact that ms wore a taurus had a warrant for her  and but they didn't know that she was driving the car because they couldn't see it and there was in the documents that were submitted the officers did know ms torrance so right i think the question is whether they can they can reasonably infer that the owner of the car may be driving the ickle they could see the driver based on the license plate check you know that the car's owner had an outstanding warrant can you reasonably infer that that owner was the driver  we have cases that suggest otherwise no i don't you know i think you can always also if they can see you in the car and they can see that the person driving looks like hulk hogan or something and there would be a fair argument but if the windows are tinted and they can see nothing then what's the basis for saying they can't suspect i and one was the the arrest that occurred in kind of like about seven months prior to that and which mister mr markham was arrested and they searched the residence and they found gun and drugs there we moved to exclude those as well as photographs of mr markham when he was arrested at the scene and we maintain a continued jackson argument search with a search with a consent the other arrest in the cadillac was an item of bill search so we would argue that there those items the gun and the drugs from the apartment arrest should not have been submitted should not have been made the other issue we had your honour's was with the the photograph of mr markham income at the scene with officers around him and we are going to the court that that was number one wasn't relevant to proving the charges of the crime number two that was so prejudicial in the sense that it shows him in a kind of with offices around him implying that he's already guilty again the court ruled that that was admissible again we indicate that the court reached the appropriate limiting instructions when the evidence was accorded the court did but i think the fact in that case where you have a defendant in handcuffs surrounded by police officers that could overweigh the court's limiting instructions i can see every time that i got up and objected the court would read limiting instruction we also raised issue with the shackling of mr markham during the course of the proceedings indication in the record that the jury was aware of the shaklee nothing in the record and from my understanding after the trial from the marshals there was no indication they were aware of that at all i believe that the district court was very good at making sure that they couldn't find out i had been in another trial with the same thing in eastern washington where we use the same apparatus but the question comes into is does that shackling overweigh the defendant's right to the presumption of innocence regardless of whether the jury knew or not and here the court based its decision on the fact that  mr markham had been determined to be a problem in made at several of the facilities that he had been housed however in none of the proceedings that i had with mr markham nor when i looked at the record did he ever act out in court was it he was never just respectful of court he never shouted in court or any of those things we don't think that there was a sufficient factual basis that would warrant the  final issue that we brought up and that was in the supplemental briefing was mr markham was convicted of felony possession of a firearm as this court is where under the united states the supreme court changed the playing ground of felon in possession charges by adding the additional element that the individual who is in possession of must know that he is a member of raised at the trial level because the decision had not come out but because that decision has come out that the conviction count for should be remanded to the court because of that new change in the elements of the case the defendant then the knowledge element is proven but in this case i guess the question you get to is if the jury doesn't hew that fact you didn't want to ju four part standard i believe the two parts of the testament where it is an error unclear the question does come down to is is there a probability things would have changed i don't know at this point does it affect the decorum with justice well you come into a situation where i don't know if you could ever say that the probability of the outcomes going to be changed when it becomes an element new element is given on a crime because the government can only show to suppress issue we agree with the judge goals observation that the standing law is pretty well settled that a passenger in the vehicle has standing under the th amendment to object to the stop which mr markham has properly raised but does not have standing counsel and joined the vast majority of circuits that have considered the issue and i hold that officers knowledge that are the return of information from a database indicating that the registered owner of a car has an outstanding search warrant provides reasonable suspicion to conduct a brief investigatory stop of the car i do want to be candid with the court that as we were on our brief that a very similar issue was pending before the u s supreme court in a case called kansas versus glover we put this in a footnote in our answering brief glover was actually argued yesterday before the supreme court and we think that no matter how the court rules affirm ins would be an order in this case so i'll explain briefly if i can just what we think the difference between this case and glover is but did w mention to the court because as a matter of prudence the court may wish to hold the case in abeyance or withdraw from submission pending glover if the court is concerned that some of the supreme court said could affect its decision here and so we think that this case is easier for the government th glover because glover involves a scenario where the information the police learned from running the license plate was that the register owner it was an unlicensed that is suspended driver's license and so the inference that the police are required to draw there is that the person was acting unlawfully that the person that the unlawful act was the actual sitting of the unlicensed driver in the driver's seat this case is easier for us because the only inference that the police have to be able to draw is that the registered an occupant of the vehicle we don't have to place the the owner behind the wheel in order for officers to reasonably stop the car to investigate whether an occupant is the subject of an outstanding arrest warrant as  for b the admission of the prior acts evidence judge collins i believe you are correct as a factual matter that the prior drug and gun possession incident occurred seven weeks not seven months before the arrest that led to mr markham's prosecution the st incident at the apartment building occurred in the st week of august th teen and the search of the car and arrest of mr markham giving rise to these federal charges took place on september th two thousand and fourteen so it's a seven week gap and i'm not aware of any case law from this or any other circuit that would deem seven weeks between two incidents to remote in time in fact as we've indicated in our brief this so a sufficient temporal connection where the incidents occurred years apart two or three years apart seven weeks is quite close in time and i think given the abuse of discretion standard of review and given the similarity the two events which i do want to underscore judge she acted well in is this question and many this evidence and that similarity point i did want to underscore that you have two incidents seven weeks apart in which the defendant was found possessing multiple kinds of controlled substances to which overlaps methamphetamine and heroin those controlled substances were found in portable cases they were in close proximity to firearms in the apartment search firearm actually fell out of the closet  when someone reached up to grab the camera case out of the apartment closet and in this case of course the gun was right next to the right next to the case housing the drugs in the glove compartment in the vehicle so these are striking here that it was especially likely to prejudice the jury because through the testimony of the officers who participated in both searches the jury here already learned that mr markham had been arrested that day this it so while we one urge the admission of photograph abstract because the jury already learned of the facts of mr markham's arrest and i also just indicate there that we think given some of the strength of the evidence i described earlier any error in this one piece of evidence would be harmless because of course the jury elsewhere of learned about the circumstances of the august st apartment search and possession of firearms and drugs and then had very strong evidence including forensic evidence at linking mr markham to the gun drugs and drug paraphernalia found in the glove compartment on september  shackling issue i think judge knew and when at asked the question of whether the jury was aware of the shockley i don't believe there's any evidence the record of the jury was aware as as opposing counsel recognized judge i took great care to ensure that the shackles were neither visible nor autobytel to the jury and the declaration from the marshal service that was attached to the government's motion support of shackling explain the measures that the marshals had indicated including draping the tables not just the defendant's table but the government's table so that's of the jurors would see they would see two tables they were also brought mr markham in ahead of the jury and removed them from the courtroom after the jury so he wouldn't be paraded in front of the jury in shackles or handcuffs he was not handcuffed in court at all and of course the marshals again tried to mute the sound of the shackles and ensure it was only an ankle restraint so that his freedom of movement was not was limited as little as possible in the  courtroom the one point that mr maher she did raise concerns about this judge she asked mr markham to rise and asked mr maher she and others in the court if they could hear the shackles when they couldn't he could decide to continue with that kind of shackling as it was and of course he made specific findings on the record based on the information provided to him by the government and the marshal service and his three million already with some of the disciplinary problems just mr markham and had during pretrial housing i did want to mention that in response to mr maher she's observation that mr morgan hadn't been disruptive i think there's no kind of one free bite one free disruption rule in these situations when any an inmate has been disruptive violent outside of court courts are free to take that into account preemptively to ensure that that kind of behavior does not carry over into the courtroom and they can solace case that mr marsh he cited which involved a stun belt not shackles supports that point i at sentencing were no jury was involved judge shea reiterated his findings at the sentencing hearing so no absence of findings and again a think robust record of disciplinary problems that supported the court's determination year especially when those include prior convictions for being a felon in possession it's very hard to conclude that a jury would fit would find in his favor on the knowledge question that ri raises i just want to emphasize that in this case because of the bifurcation procedure the judge say used and because mr markham was not did not stipulate to the convictions as many defendants do the record here actually doesn't clu what the jury actually didn't know the nature of his convictions they didn't know all the details of them but government is about thirty seven dollars which at the end of volume two of our supplemental excerpts the record indicates lays out the four counts of his two thousand and four federal charges the was convicted of two counts of being a felon in possession and also knew that he served well more than a year for those because the judgment indicated thirty six months on one count on one hundred and twenty months on the other counts so we think again under the logic of bena more and under the information that was before the jury and in this case there's no reasonable probability of a different outcome had the jury been instructed on the missing element and certainly under the th prong of the pla error test it would not undermine the integrity of the proceedings to affirm a conviction that includes such strong evidence and i'm happy to get my time back to the court muster other further questions i don't much thank you very much