for second whether the prosecutor's improper argument regarding that conviction was harmless and in particular whether was harmless with respect to the nine twenty four c charge which was the possession of a gun and further in charge and then finally whether there was sufficient evidence to sustain the one twenty four c charge and the reason i'm focusing so much on the nine twenty four c charges because as this court knows that charge subjected mr scott to an additional twenty five years in prison and it was one of the sole contested issues at trial despite it being such a critical issue though the jury received improper instruction on that charge and one that lessens the government's burden of proof the one thousand nine hundred four conviction was substantially more prejudicial than probative the state argued when it asked to admit this prior conviction that it should come in as proof of intent and knowledge it argued that the conviction was relevant as to intent with the suspect with respect to the drug conviction or excuse me the possession with intent to sell charges and knowledge with respect to both of the gun charges but the state never actually well that's actually the question it was sort of knowledge that he possessed the gun or knowledge that the gun was in his car but the state never actually said how that prior night nine twenty four c charge the one thousand nine hundred four charges was really related to the charges here and i think that's especially salient when you look at how the prosecutor actually argued about that prior charge because in her argument she centrally said he e about it and it wasn't like a pro forma instruction what about that there's two responses to that and the first is that the improper argument had gone on for quite some time before he made that instruction and the second response to that is that with respect to the nine twenty four c charge there was very little evidence on the charge the government and actually the court as well both misunderstood what the state what the government's burden was if you look at the discussion during the motion for judgment of acquittal you see the state actually say we don't have to prove it was in furtherance when in fact that was exactly what the state had to prove and you see the judge also say well i think that there was evidence of knowledge so there was very little evidence on that on that charge and so even then i think with respect to that particular charge a curative instruction was not enough given the very little evidence the government's minute on that  charge another reason that this conviction of the prior conviction really wasn't probative was because the defendant had already admitted that the crack cocaine was his it was really uncontested that the car was his the car was registered to his heated mid that it was his house so the idea that he didn't know that the gun was there that wasn't something that was argued to the jury gathering his clothes he's gathering with the government characterized his most valuable possessions and putting them in his car so no he never said anything about the gun and in fact it looks like he was never questioned about the gun at a minimum though the district court should have limited the testimony about the prior conviction instead of just saying he has this prior conviction the district court allowed an officer to testify that he had come to mr scott had come to the door with a gun and again this was from sixteen years earlier he'd come to the door with a gun that was very volatile that the officer remembered it so well because it was so unusual and dangerous and the government again has never articulated a basis why that particular testimony was relevant to this case why the jury needed to know that in a prior case mr scott had carried a gun and again i think that distinction is relevant because as this court knows section one twenty four c can be violated in two different ways it can be the use or carrying of a gun during a crime or it can be possession in further the prior conviction was about carrying the gun but the one here despite some of the back and forth there was no allegation that he carried the gun the government repeatedly argued that it was a constructive possession case so here the allegation is that he possessed the gun in furtherance  of well they didn't quite make that argument but that's what they would have had to prove that he possessed the gun in furtherance of the drug trafficking charge why wouldn't counsel in terms of assessing whether the gun was being used in furtherance of the crowd to be able to say look clearly he intended to use this intending to use this to further his crime of drug trafficking why couldn't the court admit it for that purpose well i think it would have it certainly would have had some relevance to that purpose but the question isn't whether it just have some relevance the question would be given its age given given that the prejudicial fact that they admitted about the conviction whether the district court properly admitted that so certainly there's more persuasive argument that that the district court was proper to just admit the underlying facts of that he had this conviction but the fact that the court went much further than that there was extensive testimony what is substantial testimony about the fact that the officer remembered it even though it was so long ago because he had been carrying a gun and it was volatile and again the government has never articulated a basis why that particular evidence would have been relevant to this ch this case when i entered my appearance roughly two weeks ago and it became clear to me that we should brief that issue i think it might help this court to have supplemental briefing on this issue because i don't think that this court can determine harmlessness without considering that the instruction was improper i don't think that this court can consider sufficient evidence without considering that the structure was improper because we asked the question well how could the jury have convicted on this charge they didn't they convicted on something less because the instruction was wrong so not only the jury not find this it wasn't asked to find this but you're right your honor that we did not raise as a claim that the jury instruction was wrong even though the government has conceded in there's case law exactly on this point that it was in fact wrong and that it lessened but  harmlessness and you know don't have any briefing on the harmlessness there's no briefing on homelessness and i do think it was this this court to have additional briefing that would address that but it could i suppose be relevant to the harmlessness with regard to the other issue absolutely and i think it's also very relevant to the sufficiency of the evidence on the one to what results from the submissions the evidence was essentially that he was being evicted and that he's moving his stuff from his house to his car and the officers testify yeah he's carrying a bunch of things everyone's testifying there's a bunch of trips back and forth and everyone's also testifying that he's he's agitated he's upset she's rushed because when he got to the house when they came to a victim he said he didn't understand he was the ineffective he didn't know he had impact if any of those things and he negotiated eventually let me let me let me give you sort of two scenarios that seem that seem one is that the gun and the drugs are in the same place in the house and he's simply gone with his pillow case gone up picked up things that are in the same place and put them and put them together that was suggested he possessed it in furtherance of whether it whether it was assisted furtherance of and the possession is in the car where he's going to from which he's going to continue to distribute these of these drugs and she no longer has an apartment or that he possessed them in the apartment at the time and he possessed the gun with it together with drugs the other possibility is that he that the drugs and the gun were in different places which would be very favorable to us if you could have established that i mean if they had if they found the drugs in the in the apartment and the gun in another place in the apartment but that's  them that he went from where he picked up the drugs to where he had the gun and put them together and did so very deliberately because there was nothing else in that pillow case of the drugs and the gun correct i would agree with you except for the when you said he put the guns and the drugs together deliberate i'm assuming that they were different i'm assuming willing to assume for the purpose of the hypothetical that they are in different places in the apartment in the back which again if they had been inspecting the apartment might have been very favorable to you but by the time they get to the car he's mean he's gone deliberately to two places to put things together and he didn't put anything out to didn't take his dirty laundry he didn't pick up the silverware he didn't put anything else in that pillow case only the drugs and the gun so why isn't that possession in furtherance of since he's obviously these are drugs for distribution not for personal use he intends to use them in the future and he's now got a gun in the same place with them i see i just have ten seconds left can i respond please what the courts look for is a strategic location of the gun of a gun your drugs and your drug paraphernalia so what you see in these cases is you know one case where an the the guns the drug and the defendant were all on the defend it was on the mattress the drugs were underneath the mattress they're all together and they're all together so that when he's doing his drug dealing this this this drug dealer could quickly reaches a gun if something went wrong but all you have here is an allegation that all the drugs were in the kitchen and most of the testimony that he was taking stuff bedroom so actually there is testimony that it looks like he did come as you said from a different location well that again that might be really helpful if the officers had had a warrant for searching the apartment and found that the drugs in one place and the gun in the unit in another room but they didn't they found it in the car and they found it in the same pillow case and there was nothing else there which means either they came from the same place when he was taking stuff off the counters or out of the drawers or that he quite deliberately and consciously went from one place in the apartment to another place the apartment to put the guns of the drugs in the same pillow case and not anything else well the time that they find the drugs and find that he possesses the drugs it's not possession of the drugs in an apartment from which he's stealing the drugs it's possession of drugs you know car from which he's going to continue his is just and the gun is in the same place well but there's also his t v there's also tons of clout in the pillow case but in the car in what cars by the way i pillow it's a pillow it's a pillow your honor so it's a pillow and there was some testimony that was unclear but it was actually a pillow that had that the crack in the gun thrown in it and i think the point is that seems to me to be much  throw things inside pillows as they're running out a door not usually in this circumstance where he has no boxes he doesn't have anything he has no what he but in a pillow you mean you mean there was a pillow case on top of the pillow when he put it inside the between the little case of the  because again he didn't know he was being a victim so he's carrying bundles and there's tons of testimony about this and i know that i'm well over my time so i was just there thank you very much no peter levitt for the united states it's important at the outset to note the procedural posture of the objections the present objections to the jury instructions  the defendant has waived the ability to challenge those by expressly agreeing at excerpts of record three forty nine and three fifty to the propriety of the jury instruction that was ultimately given excerpts of instruction as given considering all the evidence in the light most favorable to the government as it has to be under jackson versus virginia and police supports the nine twenty four s and i'm saying you know look at the given you look to the actual requirements of the statute you yes and i believe the evidence as a deuced viewed in the light most favorable satisfies the statutory requirements or you just said the opposite  you draw my first representation and go with the second the drugs are in the same pillow pillow pillow case as the drug has the gun he admits he's a drug do with a bell why you would ever do such and think it was permissible i don't know and the prosecutor statements at the prior mark i never seen it before it was outrageous and i don't know what to do with it because it was so outrageous even though there was an instruction have a preference as to which they should respond to how i don't i'm just telling you that my deal in this case is there were two completely outrageous things john but there is a significant harmless error question in this here in the in the instruction given by the judge and what do i do with that the answer to the last question is affirm i agree with your honor's characterization that there was an error and we had met there was an error with regard to the closing argument there arguing propensity in violation of rule four zero four big and we are grateful to the district court for intervening promptly and comprehensively not in a pro forma manner but in a careful discursive manner in joining with the jurors and i want to repeat that again this may be considered only is it bears on knowledge intent that curative instruction with the following curative instruction i don't want the argument of counsel to be considered by you as a suggestion that because he has engaged in were been point your honor and i may be talking not about the particular curative instruction here but in the risk that in here as with any four zero four b situation i guess what i'm asking is is there a point that we just missed in the prosecutorial misuse of this information that way despite all the case law about how we assume that is follow instructions that that's going over the top yes your honor i would agree as a general proposition that there is a point where such arguments can be said to be incurable you know i wouldn't have indicted this had i not known he is guilty that's the end of the story put yourself in their shoes that's the end of the story this however was an error if what we admit was an error we are grateful to the district court for correcting that error as timely and comprehensively as he did and all of on the on the gun charge i believe respectfully your honor that it is that it's in the same place this is this is a previously convicted felon drug dealing is a cash only business if you get ripped off for your narcotics you can't file a police report you have to pull out your gun and take that's essentially saying that any i mean what you're saying is that any no way that this could have been appropriate i mean all kinds of people have all kinds of violent posters up in their rooms what does it prove nothing and it's a first memory problem but your own arse setting aside the first amendment problem for the time being innocent people have beakers innocent people have bad like these have but those are functional things and if you have a bunch of them which this guy did that's one thing but this is not functional any way except attribution toas character essential way from the fact that he likes a certain moving and it's just beyond the pale in my view i understand you're on your skin cern with the introduction of this evidence i would reiterate as argued in the answering brief that the solitary objection there was no objection to the picture of the poster the solitary contemporaneous objection was based on relevancy to ship worth's testimony regarding it and the district court concluded that it was provocative of knowledge and intent and that it could therefore ship to the agent could be permitted to opine very briefly on the significance of this it was a it was a situation where the officer explained it's about a guy who rose to the top and he's somewhat of a hero to drug traffickers it occupies a very small i won't say de minimus position within the context of the overall trial fabric with the rape retired litigation about that poster i do not believe so your honor i believe most of the pretrial proceedings were wrapped up in the motion to suppress that formed the basis of the first appeal sure but there wasn't for example the government didn't move eliminated try to get that poster in i believe the answer is no your honor but i am not certain  for all of the reasons therefore set forth in the answering brief and a set forth here today would urge this core to affirm the judgment of conviction thank you very much  thank you to answer judge owens question it with the scarface poster was not let a good pretrial i just want to reemphasize that there was the misconduct with respect to the scarface poster there was the misconduct with respect to the closing argument and then there was the improper admission of at least the facts surrounding the prior conviction and all of those three things work together to encourage the jury to convict mr scott simply because he'd done it before and whatever you say with respect to the other counts i don't think there's any argument that the evidence on the one twenty four c charge was overwhelming and in fact the court when he was the district court judge when he was looking at the motion for judgment of acquittal he himself said there was no direct evidence because there wasn't there was no direct evidence on the start and for that reason we would ask this court to reverse the district