consideration are the failure of the trial court to give the mere presence instruction that's under section c of my brief and also what i would consider is probably the the major item of dispute that i think is all happened and just a quick rehash of the facts the the the jury of twelve was constituted the judge released the two alternate jurors excused them and then one of the to judge it was the end of the day the judge indicated to the jury panel suggested to them that faith go home for the night but he didn't command them to do that after one of the jurors piped up and said like they sometimes do it is ok if we deliberate so well that's up to you the judge says sends them off just perforating what was said so the jury goes in and deliberations begin and after that the judge should  that's one of the big problems here because also the judge brought the defendant in without his counsel and then proceeded to talk to one of the jervis who claimed she was too busy bit unusual we don't know what what happened in the jury room do we and why because no one asked the question of the jerk there was no no chance for my client's lawyer to ask those questions mike were you under stress were you the only one that voted not  guilty we don't know and the matter of the amount of time involved i don't think is critical to that question the question or you could infer from his conversations with the jury the jury was complaining about being tired and worked late and you know concerned about and the judge brings after and bring my client in without his lawyer there my client has no nothing he can say the judge perceives and i am not saying the judge's decision to get rid of that jersey necessarily a reversal where i'm i'm complaining about the procedure because and excuse the alternate juror who no one ever asked did anyone talk to you ma'am between the time you left here and you came back we don't know because the question was never asked for another problem with not having my client's lawyer to little mini deliberation once they were excused no one asked the question we don't know and so when we get to that back question of looking at what kind of error occurred here in light of that and also a juror who's been excuse not put back on the jury over objection another violation of the rules and i think a violation of my client's constitutional rights when you look at that is this a trial errors of the structural error i would argue it's a structural  defendant's version then all there was would be mere presence my client happening to happen to be in the car where a gun was found under the seat and so i under those circumstances mere presence instruction would be appropriate and if you look at the general johnson started with rule twenty four and fully freely admit to the court i wish judgment cicle had said the morning of the ninth when the jury took up little their true deliberations please start your deliberations over i think this entire issue w westergaard and the other lady i mean why don't we call this point he asked him to wait in the jury room for him and that's on the record there was the discussion while the panel still in the courtroom the one  asked if they could begin deliberations and i said you must decide that tonight you all have to agree and give me that answer but it's also clear that he did not intend for deliberations to begin because that  so we know that the jury was sent back with specific instructions to talk about whether we're going to liberate that night we know mr or mrs westergaard never left the courtroom no miss leave raised the issue about doing the deliberations that night  the court asked mr johnson about the time that transpired when the time the jury left the courtroom the time the court came out not quite counsel that the jury was not going to proceed that night them i think that the remedy here is maybe well different than a new trial however it seems to me like we can ask those questions of the those jurors that's been done in other cases in the past you remained back to this record to some of the jurors and simply asking the question whethe deliberation it would appear to me that is all they discussed dealt with whether going to see that knife that's not deliberation if they took that next step and for example pick a jury foreperson i would have to concede that that's part of the deliberative process and instruction this was when i got the case indicate i got short before trial i have some concerns about the case i think those are obvious from from reading the record i have very little  to deal with other than the chest more iraq's or cry or who came around the corner of the house looked directly through the windshield and saw mr gomez he characterized as leaning over putting something under the seat now there may be other innocent  me to add much to his position case like this in a position case like this you have three standard structures they're all present in this case the elements instruction the mens rea or knowledge instruction and instruction of what constitutes a position he'd either consistency and yet inconsistently just was painfully smacked of collusion and coming up with a story about what they saw that morning when mr bean was walked out of the house those three things seems to me gift if you're honest correct to the mere presence destruction should normally be given those three seems to me to take it outside of that and show that the government have more than years mere presence we're not relying primarily on his mere presen trial but his motion and if the testimony of the people in support of ok thank you under the seat but and that's where the question would be if my client knew the gun was there but it wasn't his gun it was his girlfriend's gun and it's her car is this does his knowledge of well i'm a can build the i don't believe back to the district court well i think i'm in fact going to i think after the amount of time that's gone by i don't think it would be a reasonable way to go about and also i think the fact that the alternate juror who had already been excuse