number fourteen dash eight hundred thirty one thousand and five conviction for the exact thing that for which he was on trial wasn't needed in there and that there was not harmless second jesse penn was prevented from presenting evidence of his ex wife's extreme questionable bias  by looking at two recent cases that were was decided by this court the caldwell case and the eben brown case is that you're right but let's not start off with what is the standard here that seems like we have to suggested a higher standard because of the error in this case and the burden placed on mr penn's presumption of innocence however the court doesn't have to grapple with that because the error here does not meet the non four months ago and file right i think that the court could do exactly that because the error here is so serious and when you look at the government's case the government seems to be arguing that so long as the it's certainly well within the non constitutional standard then can i kind of get an answer to my first question why correct if we rule for you in your primary argument there's no reason to address the second argument because the second argument about it issue of how to handle those text messages is some moot point because you have to handle it again all right that's right ok and one interpretation is that he was looking for a way that he and perhaps his right could not be charged but he never said oh you got me or anything of that sort so this statement really cannot fall within the category very similar case that the court was it pains to say that the government did bring forth a witness to put the gun in the defendant's hand but here the government's got his own strange way well that's where we get to didn't work out well for your client but it was a choice not to cross examine with the text messages so why isn't your coin just stuck with that he had sort of and with an eye witness putting the gun in his hand well because they wasn't a strategic can take it in this case your honor it was he thought he did not need that and when he was trying to comply with the court's order that he had a witness then he asked to call generic say hey you know it was bad here is even more proof of why the relationship was money rather she did have motivation to change her story because she was afraid if she didn't tell the police what they wanted to hear she might get arrested or lose custody testimony it doesn't have to pertain or be the subject of the web and it is just a reason to not be maybe whole be truthful or completely honest and he needed to have that text message and we have her testimony putting the gun in the defendant's hands then is the rule harmless no your  american government has admitted to the only thing they say is that it wasn't harmless but that error in and out itself does not leave this court with a sure conviction that it did not unfairly prejudice him you really are he the two reasons work together for why he did not have a fair trial however either one right it is highly it's still high standard to it's a very high standard that the test would be whether it is highly probable that the error did not contribute to the judgment and certainly the error here contributed to the judgment especially when you look at the poking form that that two thousand five conviction was presented to the jury there was an agent testifying that published the  mr penn to be able to poke at her testimony and poke holes in it and he did he was able to to some extent but there was also the attempt to show her  a lot of people would ask that question but it's easy answer that's what mission the it's an admission that's an admission you know the admission is what his answer was which was quote i will do anything to get rid of those guns now he doesn't say what guns  truly not known that the guns were present or if they were his wife she would have said self and this was argued in the closing the jury was free to believe are it's a credit to discredit argument and chose not to how how do you know they discredited that work except that argument this is not a case where that's your evidence is your evidence also includes the world would be evidence that is so badly admitted that you yourself are declining to defend its admissions so you've got a pool of evidence and you can well can you tease that out for us how do you know what the jury or credit event didn't have to look at th with firearms is a proper non propensity purpose we deal with constructive possession case no hold on a certain i'd be curious to see where you find that brown brown that caldwell possession so things he said bear by implication don't apply in a constructive position case but even in a constructive possession case there's got to be some some question about knowledge or it page two ninety two of the crown decision on judge smith discusses the classic constructive possession case was the guns are found in proximity to defendant not found on the defendant's person and right and th proximity to the shoe box so you're the logic of your argument is that every time there's constructive possession as opposed to actual possession you're allowed to put it in a prior conviction for the same offense because it's so facto by the n purpose for offering the evidence of the browns previous straw purchases so i'm asking you is the logic of your position that every time the government makes a constructive possession charge by that fact and the fact that the defendant's not guilty  entitled to put in as for for be evidence of knowledge and intent a prior conviction for the same offense we uprooted to offer it we are not entitled to have it admitted we still have to go through the procedural is as in cardwell where the defendant was willing to stipulate knowledge if the jury found possession well i thought that's precisely what happened here but the argument we received in the briefing and which we can read in some of the transcripts is mister penn saying i'm not saying that i had something by accident or mistake and i did know i have it i'm not saying i didn't know what it gun was i'm not saying i didn't intend to have it if it was my i'm saying i had nothing to do with that knowledge and intent have nothing to do with this it's not mine i had no what i just i'm not connected with it in any way shape or form no no accident erroneous to admit the evidence of the conviction in this case i think we need to look at the other harmless error cases when we deal with the for the cases especially in cardwell and especially in brown the one fact that this court will take into account is the nature of the defense i believe when the government's argument in cardwell was rejected about harmlessness they noted that mr caldwell had vigorously contested presented a case he testified in his own behalf he presented cooperated witnesses so it's it's it's incumbent on the other side of bush we're supposed to look at the defendant who's got no obligation but i mean a case and say you did fight hard enough so this erroneous limited evidence is harmless that seems to be three police officers testify to him say they see the gun in his hand or one of them says a hit sees him but i see the other guy's hand implication he clearly didn't have it when the gun drops so you've got the testimony of three police officers and we're looking at that that's not harmless here you've got to you've got to have a gun we're assured box with some cell phones and papers and an angry wife's one word answer now as between the two if if we were looking at caldwell and said that's not harmless how could we look at the want of a better since you provided in this case and say overwhelming there's no way he he admitted the guns were his so it's it's me i'll make the guns go away to be it that's the admission that you think puts it over the top yes the admission ah the wife's testimony that she saw him with a gun that she found the guns in the backpack with the holster after he shouldn't have then she in the air jordan backpack subsequently found the holster later was found in a men's temperament in the same storage unit by the police right i'm struggling to see how the fact that there is evidence that there's a gun makes that evidence that it's his gun or that he possessed the gun at some point she saw him in possession of the toys pistol ok you can say that that's certainly evidence right but the fact that she found a backpack with a gun in a holster a how does that prove anything about him she confronted him about those that there were there had been evidence of an agreement that he was not to permit that he was not permitted to bring in these items into the house that she found them in the house and that possession just because this backpack in a storage room was near something healed well it's sound proximity and it certainly would be consistent with the story that he had recently moved into the house and is items are not found strewn all over the residen interesting thing is the last one had been read marked read at like nine fifty three odd which meant that mr pena presumably presumably mr penn was reading these texts and then he went into the storage unit he put the cell phone argued it was harmless because of the stipulation but also in brown and that was expressly rejected his is the question i'm asking you did government did make that argument around and it was explicitly in fact we rejected by the court so i'm putting it to you is it are we in the same posture here when you say well we can refer to it in closing arguments so it's really not that bad no i don't believe so and i think you miss your responder davis the one of the two cases where the court this very in this case gave a very very strong worded instruction to the jury which was you cannot consider this evidence in till you find that the government has proven beyond a reasonable doubt that the defendant possessed the gun right already then and  i understand you folks to be saying that that that four four be evidence should never have come in in the first place so that we're not even thinking about that information right we're not we're not we're not in a position to say to ourselves it's really ok because they didn't refer to it in closer opening or it's really ok because he gave a cut very instruction because the government quite rightly points out it should never have come in briefly i think the court is correct in asking the government just what was their obligation in this case i'm you can see from the judge's instruction how confusing well they have to prove beyond a reasonable doubt that the possession was knowing but mr so why can't they prove them by showing he's got a prior conviction he knows what it is that's what i think their argument to be well because it they non propensity purpose is is really not significant and the prejudicial why not impact prejudicial beside the moment we deal with for three at a different time or place but for for now is are they correct that it's proper not propensity purpose in a case in any case where there's constructive possession of lives no in the way i think that  opinions that make a distinction between actual possession and constructive possession might not be as helpful when looking at this case this case really defend it as though it was an actual possession pace and  it's not so much that mr penn inadvertently had it or mistakenly had it he said those are not my i did not possess it sure and they may come back as the district court judge and and respond to that argument by saying look that's your theory but there is change their burden of proof is what it is they have to prove knowing possession of the good beyond a reasonable doubt so what's in it is an element and it's in play that's the argument they're making but i guess i'm asking you if you have a response to that and if your if your response is that it may be an element but it's more per judicial the program on but if you've got another he answered but i'd like to hear my other answer is that just like actual possession when you meet the element of possession then the knowledge it's not as though it's a question whether a person kno they have a gun or not in any case i mean this constructive possession case was really like the analysis of an actual possession and in those cases this court has said that when you're not rarely you're barely looking at whether a person knows they have a gun or not or whether it's a tory when they either have it or they don't and that's really what was taking place here he there possessed them where he didn't and this for of for be evidence is not probative knowledge because just because back in two thousand and five he had a conviction for possessing a gun has no relationship to the current case of whether he knowingly possessed the gotta hear those there is no relationship whatsoever except that there is this high highly prejudicial it i just want to make one point about the six thirteen b evidence they quick ok yes this was not a prior inconsistent statement mr hand was offering evidence of bias which is different ok if you think you