some really important issues that need to be fleshed out i'm david a very i i'm in the missoula branch of the federal defender's office on behalf of the on the keys me one moment  avery i don't know if you're on a speakerphone or not but you're coming out some of the time we can hear not everything that you're saying that you would you prefer that i think i think it might help us quite a bit when she conference situation like this i was planning on asking for two or three minutes every battle time but if that's kind of i'm not trying to let you know when our clock shows that you have an amount of time left we'll try to com specifically focus me because i see that there are kind of two problems here there are some instructions that were given and then there are seven stretches that were refused and i'll those the the overall error is extremely related i would guess that maybe the court's interested in the one the instructions they were given because they're usual in that i haven't seen much case law about instructions based on the smuggling statute there's the one case that i cited which said that the present in the statute instruction was bad and then there is the one case that the presumption instruction basically focused on whether or not there's marijuana in the concealed compartment in this trailer and then told the jury that it had to consider that to be evidence to convict him of that charge you know shall be deemed sufficient evidence for a conviction kind of even if the jury doesn't end up being it sufficient evidence that the judge has kind of intruded into the jury jury's province and said it shall be deemed that's enough and the main problem that i have heard that mr juan has is that there's only one disputed element here and that's where he knew there was marijuana in the concealed compartment and that element goes to all three charges and so you get this jury instruction by way of the smuggling statute and then suddenly off three of the charges which you know there's not a double jeopardy problem with conspiracy to import or with attempted i and smuggling but nobody has ever maintained ever was that the only thing that needed to be proven or disproved tour and left open to the jury is whether mr huang knew about the marijuana  this expertly concealed compartment in the trailer and so sadly the jury is told you know if there's marijuana there if you find that there's marijuana in there that that's a reading sufficient evidence and then they're told and i think this is supposed to be curative language that they may infer that there's knowledge if you if they find that this the marijuana sure i understand completely your argument with regard to the concern on the instruction under five forty five but it seems to me that as a review in court we need to look at the instructions as a whole and as i read the instructions it looked to me like the district court gave the jury instruction with regard to the government's requirement of proving beyond a reasonable doubt each element of the three crimes that were charged and then the judge gave the jury either the statutory words of the crimes or identified each element the indictment then with regard to count two he read them the language of five forty five which includes the presumption but then later gave the what i'll call the permissive inference instruction to tell them that they were not required to apply and as i read are in vain decision after sandstrom and i believe there was this another night circuit three judge panel case that followed that doesn't address the concerns that you are mate you are raising with regard to the due process violation that this somehow shifted the government's burden quote unquote never shifted defendant for the for the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence so if a jury after careful and impartial consideration of all the evidence has a reasonable doubt been the defendant's not guilty and and there must be acquittal and and so that kind of instruction was given in rubio and this court your court said that that wasn't enough that the instruction in that case was quote unquote you are instructed that if you find that the defendant was the driver of a vehicle containing contraband in this case and if you find that the cocaine was found inside that vehicle and concealed in its body you may infer from the fact that the defendant knew that the cocaine was in the automobile however you are never required to make this inference it is the exclusive province of the jury to determine whether the facts in the circumstances shown by the evidence in this case warrant an inference which the law for mitch so i mean i think that the instructions are dramatically similar and then i would contrast develops on garcia's instruction which says that first of all that that the district court gave a defense theory jury instruction and said you know basically said the government says you know his case is that he knew about this he said drugs and the defense's case is that yes there were drugs in the car but the defendant know about didn't know about them and if you find like that was true in bed that case in this case there's marijuana in the vehicle and both of those cases focuses on that fact and then ash then tells the jury they can find the only contested element which is is the driver knew about the drugs and in this case it's the only contested element with respect to all three charges not just i guess the question that i too have in that we have the belfry and the eight still used in the ninth circuit but the problem can be avoided if the other instruction condition and qualify the permissive inference instruction so it's to make it clear that the judge is not implying to how the jury should return if you be perfect and that assumes that we look to include whether or not the jury was instructed as to the proof beyond reasonable doubt as to each element of the offense and make it clear that the court   not telling the jury this is what i think you should find that suggests to me that my looking at all the instructions that these instructions are still mean the first thing i guess the thing that's take me to respond to that that is the district court in this case refuses to instruct the jury that to possess something you have to know it's there i mean that is vet is the standard jury instruction in this case bag for that question for that your instruction to be given and it was asked for by mr was trial counsel please tell the jury that he didn't possess this for the rest for the purposes of the rest of these instructions unless he knew it was in this expert the concealed compartment and i i can't fathom why that jury instruction wasn't given if this is this case in this case i mean it in any i mean more so than any case i have i'm familiar with i mean that's what that's the only disputed issue is did he know that there was a very wanting this concealed compartment it took two or three hours bit to to the in the front of the trailer it's still there you will be looked down below and there's nothing man so they go into the very front of the trailer and so i mean it was it was a two day trial about whether you knew that was there and and yet there's a bunch of instructions that talk about you know that hinge on whether he's possessed and the jury is not given the legal definition of what possession means  montana and i represent the government in this matter addressing a couple of the issues raised by judge tall man and i think that the judge tom adequately stated the procedural approach we need to take the facts and it's not focusing on one fact and it's not a problem for you here and i think you're right that's one something the court emphasizes there and indeed says the court did not instruct the jury the garcia could be convicted merely because you drove a car you know i agree with that your bitch and i was just responding to the question about whether or not you know this particular instruction that was given and in mr wong case somehow focused on a particular fact and well let me assure you that then emphasizes the court did not give that kind of instruction seems to me the court here didn't give that kind of instruction and you can suggest that it's it seemed by other instructions that given but additional elements instruction and that it does make it very clear what the government's what the government's burden is here and with respect to the efforts instruction again i simply hearken back to the fact that it does tell a jury as i've said one is i think that it didn't focus on the specific fact told the judge or jury to instruct consider all the evidence and again i think you know the we have to look at the elements instruction and it's very clear that th evidence introduced at trial you find beyond a reasonable doubt that the defendant possessed marijuana which he attempted to smuggle into the store you may infer from the defendant's possession of the marijuana owned the other trailer that had a hidden compartment that he doesn't stand in for me that's it maybe i'm the only one who reads it that way but that appears to me to be a different instruction to them and frankly you just articulated far better than i have  harking back to the elements instructions for example with respect to count three the jury was told that they had to find that it was marijuana or some other prohibited drug that he knowingly attempted to and you know i don't think so judge but and the reason i don't think so again is because they were also told but it's entirely up to you what evidence the plot was fast to find from the evidence in this case and i believe that a jury is going to that approach and i'm asking i'm confident that the jury made every effort to follow the instructions are hard really trust juries a lot but i think these to me these instructions are confusing in so far as they don't tell the jury what it means to possess therefore from that you may infer knowledge because because that implies that knowledge isn't part of position and i and i understand that but when we look at the elements instructions they are told that you know the found out with respect to count one had to know about the object of the conspiracy with respect to count two in knowledge is addressed again with respect to marijuana or merchandise he should have presented with count three he had acknowledging that with what he had attempted to bring into the country and i think when you talk about knowingly and the phrase bringing on i think that that gets to the heart of and i think when we talk about knowingly and this is this is another important aspect i think that that is somewhat distinctive in this i know of specific instruction was not given to the jury about the defense theory of the case but that definition of count one and count two count three excuse me would stand on their own and then again we have to read the instructions as a whole and we have to recall that the jury was given specific elements instructions for each count of the indictment instructions was restricted to count two and i don't think there's anything on the record to suggest that the jury would have spelled spelled those instruction is over so to speak with respect to chance one and three and i will be candid with the court i didn't indict this book but i'm familiar with the history behind it and we were familiar with with the history of these sort of cases where a largely blind you'll see are involved we did look at the smuggling statute critical distinction not only between us other cases but all the kind of cases before this court and not one of those cases did the driver on an identical trailer with an identical concealed compartment that was found with another person carrying drugs and that pertains to  one of the two one of the drivers that was there was a hung jury in that case you have the same kind of truck actually two there were two people in that truck used to conceal confinement well then there was at the registration concealed compartment and they were acquitted victor you're right you're right i think there's no there's nothing on the record anyway that that they had been convinced you have that trailer registered their name or or traded trailers with somebody else and knowledge of marijuana with respect to one count and to suspend or entertain a doubt with respect to the same exact factual question did this person know the marijuana and the same concealed compartment with respect to these two other counts which had much lengthier sentencing problems you know the government's counsel has admitted that it was easier to get the conviction with respect to this magazine count and  congress made it that way that congress also gave a five year mitt mandatory maximum with that same smuggling conviction and i'm not saying that the county should be the only count this reversed of course but if we're going to talk about congress's intent this court that you know that says that these are just the regular burden of proof instructions and other kind of instructions that we've been talking about don't hear these permissive inferences i doesn't really work when the sven determine that there's been an improper inference because you can't just weigh all the evidence because that still doesn't allow you to know what the jury or the jury did when they got behind the jury's door  there's just no way to know whether they you know listened more intently to this shall be deemed sufficient to convict instruction or you may permit the existence of marijuana to give you knowledge of marijuana i know my time's up but i don't see how human beings can distinguish counts one and three from counts two he neither knew of the marijuana or you didn't know that marijuana joined this conspiracy i mean the parties have agreed it's him to read that the only question is whether he knew that marijuana was in his concealed compartment and if there were some other kind of evidence about you know about how he might have otherwise joined the conspiracy without really knowing that there was marijuana in his trailer the trailer he was pulling then that would be problematic for apps but i still think under regular harmless error analysis you will see evidence in light of your question and there's not it's not been if there still it is still possible harm and so if there is some evidence of other steps that would that would be problematic but i don't think in light of what is to happen in this