stipulations provided to the jury along with some other issues that was difficult to i believe at the outset of the trial of the trial so it wasn't there was not independent proof that he was a felon but even sometimes the stipulations are no way that a person has you know they just you know i remember when i was a trial judge people would stipulate to what but they didn't necessarily know that the person was convicted of a felony you just the way the jury was instructed it was different i  except to actually put on evidence as to that fact but even standing apart that's still an issue we have but i think it's even much more inflammatory and really unrelated to the drug the drug related charges in terms of that worse well i mean i mean if i were you know i'm just sort of taking a common sense when you have to assess prejudice i think you know i mean there's you know it would be great to have a trial with nothing incriminatory against you but he's on trial for drug charges and having a gun and all of that so they're going to know you know they're going to share all of that evidence and they only and i don't see how i don't see the prejudice the fact that i do in terms of all the evidence that has to come in any way i think there's basically three points that i need to make first of all is being and can be highly inflammatory especially when you are someone who the jury knows is not supposed to be here period why are you even here so that's not just jury well you still have the returning without reentry i mean there's a possibility he could have the whole count but he didn't he asked that they be bifurcated and it certainly would not have been such a big deal to i mean to try them separately or  even even though they did try them together except they want to just great incidence as opposed to here we've really got one set of operatives facts and based on all of those are part of facts that's what the charge arise out of and that and so yeah the damage that they would have to give you even though all these facts are the basis for what the prosecution would have to do for their separate trial and then i suppose that arguably you wouldn't want the alien in possession of a weapon tried with it you know the other you know i mean you have to a whole separate trial but not necessarily because if you in terms of telling the story and i would like to get to the story because i think that's really where  kind of evidence coloring other counts and particularly so when the evidence of guilt on a drug related crimes counts three and four is not overwhelming and so you have the real danger of these other facts very highly prejudicial facts after if they find possession it just takes a matter of minutes certainly just hours at the most i don't even think that much to just put on this additional evidence but that when you would have you would not have the danger of a teen so i would like to we know that he was in the car for a brief period as the passenger they actually handed the driver who didn't run away from the car one officer stay with the driver the driver was briefly detained and not booked and not charged ok i guess what i would say there and which i'd like you to respond to is obviously those are you know i think it was laid out a lot of things there were no fingerprints there was no this there was no that all right and those are all arguments that you make to a jury and you hope t your clients found not guilty but when we look to sufficiency of the evidence i'm looking at a car that is registered to your client that your client was in the car he runs from the car the drugs are found in the car i believe there was also an expert testimony about how this package what you know what the amount was all of that sort of things which would go to the sale how do we get how do we you know yeah that's maybe those are all things i would certainly argue but how do we say that there was not any evidence there i mean i'm just it can be made from all of those things that the jury obviously made i think there's a few points first is that there there do which is an old kids from one hundred sixty four but it goes to this important important principle which is that they have to prove the government has to prove that he had actual or constructive possession of the drugs speculating as to whose drugs they were was not sufficient and the fact that she lived there and she had access to the nightstand was not sufficient to prove that she had actual or constructive possession and we know he did not have actual possession of drugs based on the evidence in this case so we're left with constructive possession and the jury was instructed on the actual constructive possession issue and page four sixty of the record in the instructions so here we have we have no friends no drugs on him never had to do as they found in other cases we have seen him handle drugs we have no way to exclude the possibility that the driver of the car the person who's been in the car the entire period from start to finish puritans hovered in the trial we have nothing to exclude the driver basically the government has asked for inferences to be made based on the expert testimony that this person is a drug dealer and important think it's him to view the expert testimony that much of the expert testimony goes just to the drugs themselves and doesn't tell you something about the person who's they are it tells you about the person that owns those drugs and so on that issue we have the quantity of the drugs the size of the rocks that they were in the area where they are well that all goes to both of the driver and my feet and we have the cash on lopez and the gun attributed to lopez no those are know there's you can't say that that doesn't mean anything but what the problem is it doesn't close the gap to actually give him what certainly doesn't give an actual possession of the drugs and it doesn't close the gap to give him constructive control the ability having exercised dominion and control over these drugs because if the inference is he's a drug dealer drug dealers have guns because he's a drug dealer it's more likely that the drugs were his but i don't think it closes the gap to show that he actually exercised dominion control over the gun i mean i've seen over the drugs it's not like it's his house and he's the only person there who has access to the house the problem is that there's a driver in the car driver in the car has been there the entire time we have no testimony telling us who usually drives this car where you know how long this person has been we have nothing putting our guy putting lopez in the car earlier we have no incriminating statement about the drugs we do have an incrimin not on this particular moment mean that you have tribes in your possession that you're actually exercising control and it certainly does not exclude the driver from being that person and let the dogs out of case tells us driving the car he has the keys to the car he's been sitting in the car the entire time we have testimony covering for the whole period that we're covering in this trial and so you have the driver i think driving a car and having the key to the car and being in the car the entire time is exercising control over the cars so even though he's not the owner i don't think i mean this is you have to have knowing possession it's not strict liability just because drugs are found in your car and somebody else is driving your car it doesn't make you guilty of possessing drugs particularly when there's joint access was a question that's correct i think but the question is got a rational jury of drugs on his person there's no one to see him handling drugs there's nothing he's a person who's highly suspicious because he has been seen with lincoln and has a lot of cash and that indicates to the expert at least that he might be a drug dealer but i don't think that gets you the full distance i don't think that the jury asked and there is absent any evidence he actually controlled the drugs or exercise dominion over them and certainly absent any evidence that they're found on him he actually possess them i don't think the jury can make that finding so before i sit down i i would like to just point out that the twenty four seasons of building on top of this goes to the gun and as this case was tried to the jury appeal this is not being pitched as a brandishing case based on a drug deal on the street because there's no evidence to that effect now it's being pitched as a proximity next to because the gun was under the seat and the drugs were in the council and i don't based on man and particularly on that which talks about that the contemporaneous possession of a gun and near drugs does not prove and i'm twenty four see it's not strict liability there actually has to be a stablish the evidence taken in the light most favorable to the government was so lacking that no rational trier of fact could be found him guilty on that charge and i'm not sure in terms of i know i think we know what all the facts are used in furtherance of that and i would just like to briefly set forth what those facts are first the drugs were found in the car that the boat belong to the defendant he admitted that the drugs were packaged inside a console in the defendant's car they were not simply laying out they were not found in the tin cans in a compartment in the driver's door or on the floor they were inside the console in the defendant's car of course the jury heard evidence about the form of those drugs in the significance  the form of those drugs to the expert the experts testimony how they were broken up into varying sizes which comported with the way they commonly street traffickers deal in drugs the ten dollar piece and twenty dollar pieces and there was evidence  console so again if one is protecting a personal stash as the defendant said i didn't possess the drugs but if i did this was for personal use that's not a likely place when we keep one hundred thirty one doses or single  of a personal stash right there in the center console again the fact that he had nearly three thousand dollars cash on his person in the denominations the judge county and you pointed out there were sixty to twenty dollar bills there w fifteen one hundred dollars bills and then some other smaller bills again those were mixed up they weren't organized in any fashion the defendant was unable to expand have any coherent explanation for how he came into possession of that money  question when it was asked by the officers how did you get this money he had varying explanations first he said he was dealt in cars when they asked him where do you work he was unable to provide an explanation and he said he painted houses then he said he got the money gambling he didn't provide the name of the casino where he had been gambling but he said he belonged to the money belonged to his wife officers went attempted to return the money to his wife they couldn't find they couldn't validate that address you know when it trials that this money belongs to us so clearly the defendant is covering up why he has this money he has no logical explanation for it he's located at three thirty in the morning in an extremely high drug trafficking area he's engaged in an altercation on the street where he does brandish a weapon and he's got a lookout the driver of his car sitting in the seven eleven parking lot and when these beer delivery drivers are calling the police reporting the psalter cation the individual driving  alerts the defendant this was testified to at trial and at that point everyone scattered the car in the street took off the defendant went into an apartment complex and very shortly thereafter got into this car as a passenger and the police arrived and then subsequently the car was pulled over what does the defendant do does he stay and offer an innocent explanation the gun wasn't mine i don't know anything about these drugs you know he bails from the car he runs blindly into traffic across las vegas boulevard almost being struck by a police officer so those are the and worst again the gun was located under the passenger seat and there was testimony by the first officer that he encountered this card  stop sign and he turned and he looked over and saw the defendant briefly look over time and there were window to window that is the driver of the defendant's car was window to window with a police officer and the defendant looked over briefly and then looked straight ahead the driver never even looked at the police car and they're just sitting there at a stop sign the officer said the defendant bent down and is it to stick something underneath the seat so in any case then very shortly thereafter they're able to subdue him ask him questions about you know this money and so for then all of these facts i submit to the court were relevant in the jury's determination not only that he was in possession of these drugs not only the facts alone but also the expert finding that not only did he possessed these drugs that he did so for the purpose of distributing them and that the firearm that was used was done in furtherance of that drug trafficking crime now i tried this case and i did state instruction but i think i've seen this one other time is this something that i don't think we have anything published in the ninth circuit there is a policeman another circuit but is this coming up a lot now whether in the furthe is requires other explanation i know that your argument is in the furtherance it says what it means and that people can understand it the appellant's argument is that needs more explanation and that it would that in my brief there is an admission and the other case that it's not like circuit there right now it is not i found nothing in the ninth circuit publisher unpublished talking about whether there is a need to define in furtherance of course decided last night circuit cases talking about are a little bit different but ultimately the court said that there is no plain error in failing to define in furtherance of again because it's given it's plain everyday common language aware of it come a lot frankly this is the first twenty four c case that i have tried so it's not a good person to ask it's probably not a good person to ask but now i'm not aware through talking with my colleagues and so forth obvious under united states versus present of course here you don't have a published ninth circuit case or in fact any case that i've located that says it's required that you define this distinguishes it from  you just fell and what's what's wrong with that or what's wrong with that first officer that was not there that was not what was requested below and further interviewing in preparation for this hearing that the transcripts in the pleading pleadings and the relief requested that was never even requested and never requested a bifurcated trial he asked for sept first separate trials on four separate trials on all of these in the court interviewing of course the fact for example to just try the illegal entry alone as the defendant had requested alone it would have taken everything completely out of context and would have created an absolute white washing of the facts admission of the element of being a felon was the jury told he was a felon or are they just told that a certain element was satisfied and they had to decide x y and z on page one hundred fifty of the excerpts of record is the stipulation and with the he had been convicted of an offense punishable by more than one year so i don't believe the instructions themselves actually set a convicted felon and the stipulation right is as i reveal to the court thank you location or at the same time that a drug trafficking offense takes place is not sufficient to prevent further in south what we have to show to demonstrate the defendant's intent and again this comes up in the case law reviewing the sufficien in fact finder are certainly entitled comes the common sense conclusion that when someone has both drugs and a firearm on their person the gun is present to further drug trafficking and the cases where they have not found sufficient evidence  such as rios and such as man there was an evidence that the drugs were close to the gun or that that in any way they were together for example in the man case there was a gun in a locked car the possessed the guns because they simply weren't located close enough to the drugs to make that inference and again it is going to be an inference if it was direct evidence it wouldn't be this component of the non twenty four c it would be the act of employment it would be obvious there would again in the case is drawing on the facts that you just provided united states versus lamont's which is started it pays twenty seven of my brief it's a fourth circuit case sufficient evidence when the defendant was found running down the street with a loaded semiautomatic pistol in his hands  thousand packages and hit package hits of crack on his person page twenty seven recite several cases where when drugs are found on a person when guns are found on a person that is sufficient evidence to find that the what how do you how would you use that as an imprint i would use the money as an inference of proof of his drug trafficking that in fact he was drug trafficking at the time i think that's a reasonable inference because who carries around almost three thousand dollars cash in their pockets or so disorganized how do you know he wasn't going to name and marcus he did say that when he was asked he had no explanation for why he had all this that never even taken place let's say that the police simply pulled the car over for some other reason and there never was an altercation and they found the evidence that they found he fled they found the cash and all the other evidence that we've discussed morning they could have come to the very same conclusion that was a suggestion by putting that the testimony into a context of what a reason why it could have been taking place but i don't think that they had to find that in order to find the amount of the drugs that he had the form of them the money that he had and so on and so forth supported that he possessed the drugs with the intent to distribute at some time that's why he was in possession of them for personal use thank you regularly having boyer's when you're doing your instruction conference saying in front of your inst it's not explanatory it's confusing i know you know i'm putting forth this instruction or you know you need to you need to tell the jury pocket that were packaged for distribution and with a handgun and the other pocket so to keep it simple like that you have that ca you actually have because you actually have to possession but i still think that what the case by requires is that mere possession of the two contemporaneously that was the word that the court used in man is not sufficient that there has to that the instruction isn't playing there with the finding with the evidence in the hypothetical the tickle i've given would that be sufficient evidence for a jury to convi well i think that's a the reason i really like if i understand i understand what you're painting is a much closer picture than what we have also all of these cases these nine twenty four cases are insufficiency cases coming up  proving the nexus or intent and so here we have the general facts of the expert testimony on that issue but we don't have specific facts that connect the two we don't have specific testimony that directly connects the two and we don't have specific that connects my client to the possession and we don't have specific testimony that connects his intent to use the gun to further any possession which becomes critical