any evidence would be found on mr henry cell phone then you have mr henry's prior conviction for possession with intent to distribute that prior conviction had known violence apart from predisposition and was far more prejudicial th probative finally a police expert was permitted to go far beyond providing the jury with building block general information about the drug trade it was not personally involved in the investigation and summarize the entire investigation jurors can even with all of this or will use the admitted information the evidence at trial did not come help a finding that mr henry had the intent to distribute yet because in hogan's from included instruction was has a charge conference at that point the judge says she is inclined to not give the lesser included but has not yet decided the next morning for the instructions the judge comes ahead and she begins with her ruling was any intervening but i also think that the concern about the defendant didn't want us i think it's not present here and i also think that the courts have talked about and where that is a concern that you know that this can be a double edged sword that lesser included instructions can go both ways that despite that a lesser included instruction is very important because it preserves the jury's back ti theory of defense is but it's also clear under the lesser included instruction cases which come at the end of the trial when everything has come in here the prior conviction didn't come in you know that mr henry lost by a trial and where that has come  an actual concession where there was no concession here the argument wasn't mr henry didn't possess but in possessing intended it's mr henry didn't possess and you don't even need to get to intent because he didn't possess can eat  evidence has come in once everything has unfolded at trial i think that that statement related factor into whether or not he gets a lesser included instruction because nuts are included instruction analysis shape or for the united states as with respect to the lesser included offense instruction this course cases make abundantly clear that plain error review applies here the courts cases and rule thirty require that a defendant restate an objection to the entrance to the jury instructions after the instructions have been provided here or as the the court noted mr heller was given an opportunity to restate that it ha objection and he chose not to he specifically stated he has no more objections and there's a reason for this rule as some of the court's questions alluded to after the jury has heard arguments and the court has had an opportunit arguments after the court has read the instructions to the jury and heard how they sounded and had an opportunity to rethink what the evidence showed that is where the court might have an opportunity to rule think it's former denial of the object standard instructions and then the parties made their closing arguments and then the court gave its remaining morse i guess substantive instructions and then at that point it kind of counsel to a side bar and ask if there ever objections in and i think judge had asked this question the court is the word noted just to clarify that point rather than preserve i'm not sure it really makes that much difference the point is that through this court cases and will thirty counsel for both sides he they have to be restated after closing argument were a judge may infect effectively instruct someone that they don't they are not to present their objection rather i have seen cases dealing with that well it's not a bet so much on your honor as a defendant who previously possessed is the this case as a as an example the prior conviction involved for teen separate package rocks of crack cocaine here the evidence showed that he possessed twenty one separately packaged rocks of crack cocaine the fact that he knew and had the intent in the previous case that that sort of packaging and distribution packaging and quantity want it well first they also testify that it's very unlikely that they purchase it in that manner he was the piece acceptable if you were buying a pizza to eat at that time or to take home for five people let's say or to say for later buy an entire pizza not separately packaged slices of pizza to take home on the other hand if you're buying a pizza to walk out and we saw on the street we don't know about it and separately package people buying volume which is why you can try to go to the grocery store and you know pick up ten small packets you pick up one big one but that's not always the case there are a number of sales i think you would have knowledge and routine practice where street level distribution but the jury heard all of this as well as the expert testimony as well as the cash that was found on mr henry a small denominations and so the evidence here was clearly sufficient if not overwhelming first of the court's instructions make clear to the jury that they are not to give any special weight or extra weight to expert testimony and we do presume that juries follow their instructions secondly the defense does have the opportunity to cross examine the expert which they did here and to argue to the jury but these interpretations just do no water and they did that here it's also possible and i'm not aware of what pool of such experts there are out there i haven't looked into it but i don't see why a jury couldn't call an expert who has some experience in street dealings maybe a former law enforcement officer maybe a former drug dealer who could testify as an expert if qualified that these words don't mean what the government is having one of the problems with this kind of testimony is that officers are often called to testify as an expert bed people use coded language and then the prosecutor wants to have the expert to decipher the coded language but they are able to decipher it by saying this particular code was used is used commonly on the street just say that's code for cocaine how do you know that because drug dealers always use cocaine  requiring that the testimony limited to that which is really a matter of expertise that i know a particular trial because of my involvement in other cases has a particular meaning rather than simply i know people use code this is my opinion code specific prior cases he had been involved with were turned down his years as a code word for drugs i'm not sure when he said that specifically but he didn't say well that must mean cocaine because that's how i see it here he said that that's what that means and i think based on the fact that he had been qualified as an expert in front of the jury based on his training experience and involvement in hundreds of these cases the jury understanding well again your honor the fact that the jury would tend to not be familiar with that parlance is exactly right the courts have allowed this type of testimony but when you combine that with the instruction that was given here th expert testimony is not to be given any special weight or extra weight and the presumption that juries follow their instructions plus the opportunity of the defendant to cross examine the expert and to argue in closing that this language could not have meant what the expert least that but it is commonly used term for marijuana and instead of her response no flavor that it probably another drug again i'm not the expert so i'm not saying that but that's what our expert has spent the century testified to here and that's cause to search their computers at home and cell phones they don't have with them but is to ignore reality isn't this the way in which drug transactions take place is with text messages on phones and when you find the phone