about the jury instruction or the trial court so suiting evidently is all instructions were correct instruction both parties agree that the instruction is playing the iranians for based on my reading of the government's briefing they take issue with problems three and four of plain error as they believe that this is this is an element and the jury instruction it is and as this court recently recognized in juneau gets in light of the revered status of the beyond a reasonable doubt standard in this court's criminal jurisprudence a jury instruction that allows a conviction where one important element may not have been found against the defendant by such a standard cannot be overlooked well we'll let the government  i don't there's no reason paul does so as we believe there is no argument to the government's weak the government's evidence at trial was far from overwhelming quite frankly it was underwhelming and bu jury instruction a jury would not be compelled to find some or a guilty rather it would almost be compelled to return an acquittal and what about on actual possession there was no jury possession was correct yes your honor this is not an actual possession case the government offered no evidence that put the gun in mr seymour his hand at any point in time the best of it wasn't wasn't the d n a evidence an indication that it had been in his hand and he had the breed dominant d n a signature on the gun no your honor actually the d n a evidence from the gun show that at some point in time prior to mr somewhere being arrested he was in the same space as the gun it does not put the gun in his hand and quite frankly the evidence that the d n a was retrieved from the trigger in the handle it was retrieved from the handle absolutely well the point being that there was d n a his d n a was on the gun sure and that was not disputed at trial and he was a major contributor multiple d n a on that gun i think there are several misstatements with that he was the government's expert found ten anagrams of d n a on the gun half of that five dollars nanograms were from men at least one male maybe more the government expert could not say and from that five four nanograms the expert was able to determine that mr some more of was the major profile she couldn't say how much of it was or how much government's expert testified to was that there were ten grams of degraded d n a on the gun at least three people contributed to that d n a sample half of that the d n a expert was able to identify as male over the passage of time so that it was unlikely that mr seymour it handled the gun on or about may th two thousand and seventeen i didn't know that you were actually questioning whether he had ever handled we did your honor and you the nd part is absolutely correct there was no way to tie mr some more had to the gun via d n a at a point in time near the date in the indictment but and it's maybe not it's not secondary transfer but there is not enough evidence to say that definitively had the gun in his hand as the government's expert testified he could have spit on it he could sneezed on it he could have had a bloody nose all over it and she does say he could have done that but the chances are about one in ten bill you know that was well that it was for it was secondary transfer which is something entirely different than being in the same space and sneezing all over it such as this timer i'm not holding the timer but i could sneeze all over it and my d n a would be there seymour could have been looking at the gun in somebody else's hand it's nice don it and we have no way of knowing that we cannot put it in in his hands that's an inference without any support in the record what if we conclude that we disagree and that there was jury verdict is not clear and failing to instruct a jury on the essential and essential element of the crime is an violates the th amendment jury trial guarantee  be an element error does not mean that it's reversible the government's effort in order for that to be the case it needs to be clear from the jury verdict on what the jury was relying and the government evidence excuse me must be overwhelming and neither is the case in this instance moreover this court applies plain error less rigidly when there when the correcting a constitutionally are such as failing to instruct an essential element of the crime major contributor to that work where does that come from it's not a major contributor and this is a fundamental issue with language it was the major profile ok so the word is a major profile which means watch it means that out of contributed some d n a to the gun that's evidence than that we have in this record it is but it is not evidence that puts the gun in his hand based on the conviction doesn't that suggest that the jury credited the d n a testimony from the prosecution it's not clear your honor it's a general verdict that he simply  that they the jury credited the d n a test by your honor it is impossible to determine and i would say based on the record evidence the jury was more persuaded by the idea that some d n a got on the gun somehow and that was enough to convict mr some more and that's not what this crime requires there's a much greater specificity in terms of both the mens rea and what the government needs to prove and whether the jury disbelieve that miss her and it's put the gun in the car where the jury just believed any evidence that on the sufficiency of the evidence question though we read at a judgment from the a verdict from the jury don't worry review that in the light most favorable to the government know under the law of the in the circuit at the time of trial there was no evidence a deuced by the government going to intent and with that i will reserve the remainder of my time i reviewed the record he was linked to this gun at trial on six different levels number one his d n a was found on the handle of the gun in sufficient quantity for the d n a expert to label and the major contributor to he was alone in the car with a gun for several hours before it was discovered three while he was alone in the car with the gun he was in close proximity to it it was mere inches away from right hand number four while he was alone in the or was number miss three is that while he was alone in the car yes he's in close proximity to the gun itself found in the console just inches away from where his right hand would have been for while it's in the car it's nearby his wallet in cash so close in the sense that everything so i guess it sure sure except everything everything is not in the same distance or something in the backseat is different than say ride but if you imagine a driver sitting in the driver's seat and he needs to put his wallet somewhere in any sport his gun somewhere the gun is inches away from his right hand the way that this car is set up in his wall in cash or inches away from his left it's at least some circumstantial evidence number five he flees  needed didn't want to be arrested in didn't necessarily have anything to do with the guy in our view there are equally reason why i think you could draw the inference that he ran because of the warrant but i think you could also draw the inference that he ran because he knew he was a felony had a gun inside the car had been driving  i don't know that one would be more or less reason by me to be clear we're not relying on that it's the principle piece of evidence there's a reason it's a number there was no an inventory of the contents of the car correct yes and when they take those they distinguish the location of various items in the car what we have in this record is a police report indicating what was found where it didn't indicate what else was found in the glove box i don't recall there being relying on the cigarettes obviously as a principal piece of evidence i mean in our view then coming to the more specific piece i think the d n a is the strongest evidence and quite frankly i think the d n a is the evidence that distinguishes this case from other cases in which you've reversed i did your expert talk about what major contributor or major profile which which is the correct term which term did your expert use i believe she's the phrase major profile and ok did the expert further testify as to what that meant in a vacuum and also in relation to the other profiles d n a profiles on the gun yes to both on pages one hundred and seventy eight and seventy nine of the record she says that this is the major profile and she says that it means quote you contributed more d n a than others she then puts up a graph she's questioned about a graph she says that there's quote disparity this page one people but what we do know is that his d n a profile is what she refers to as the major d n a profile meaning he left more than anyone else in and where was his d n a found on the on the handle on the say unequivocally there is sufficient evidence on which a jury could find actual possession how can we have doubt with that would you argue that we can affirm an alternative graham yes well how do you affected the defendant substantial rights and we have a general verdict how do we know what the jury relied on that's strong as yates and these were cited where there is absolute certainty and so refund they all require us to reverse you don't know but that's the reason that you affirm and let me explain why and on cross which we did sign our brief uses the following language just says if the alternative ground on which the evidence on to stink theory you haven't cited a case and if you have you know me because i looked at i didn't find one where you had you can affirm an alternative grounds because there was sufficient evidence on one theory and an review on a sufficiency review if a theory was presented to the jury in the jury instructions you then draw all reasonable inferences in support of the verdict and that's the hornbook language you look at the evidence for selves and if there's evidence in the record from which the drury could reasonably find the elements then you stop so here if you have two theories that are equally presented to the jury and we can get into that but our view is they were and the defendant has only chosen to challenge one of those theories on appeal that doesn't tie your hands it doesn't prevent you from doing what you ordinarily do we just look at the evidence in the light most favorable to the verdict and say did the evidence presented at trial reasonably support conviction on this theory that was actually presented to the jury this is so if let's say we agree completely with what you say it so part of your argument presumes that a problem three on the constructi possession theory that we have already found that the error in the instruction has affected mr some more substantial rights record so you're saying that no you know there is no there is there is no error and you know what because there was sufficient evidence of a different theory actual possession that we still should affirm even though we have already found that the instructional errors affected the defendant substantial right and his seriously affected the fairness integrity and reputation of the city yes and here's why and i'm going to quibble little bit with the premise or question and i think it's the answer to it under prong three that the standard in our question is is there a reasonable probability that this particular  evidence of the other theory for which there was no instructional error then it's not the case under prong theory that there is a reasonable probability that the error actually affected the verdict because there was stronger overwhelming evidence of the other alternative  i don't think that you've treated it a plane or a specific rubric for this particular kind of problem i think you are now analyzed this under ordinary planner principles which is if there are reasonable probability that this particular error affected the outcome and so if you imagine i'm going to hypothetical or if you imagine a case in which it wasn't just overwhelming but it was the strongest evidence you could possibly imagine of actual possession of the guys on video nine different people look at him he's holding the gun no reasonable juror could have not overwhelming evidence you know what we think this is a romance i'm not aware of a single case that you've confronted in this area of law in which the defendants d n a were and where fingerprints were really his d n a was all over an item in question that he'd been a left alone with the space and which the court looked at and said well that's not evidence of possession the only evidence let me put it this way we're not talking that clearly it's evidence clearly is evidence it's question is is it overwhelming evidence it is a wrong in evidence because there is no contrary testimony from any expert there is an in your consideration of overwhelming evidence do you consider at all the testimony of mr hernandez we relied on her for the time and purposes the timing of when he's alone with the gun but in terms of in terms of him helder what about the proposition that she she had a gun and to protect herself in her house and yet the gun was in the car and that right i mean i think there's one of two ways to look at it and either way he's convicted when number one is she's just lying wholesale and it's the defendant's gun in which case he possessed it or way number two is you accept her testimony at face value in which case she gives very specific timing testimony she says she put the gun in the car a couple days earlier and the st time he's in the car after that is that day so either way he's possessing it that day but let me come back to the quantum of evidence d n a stuff the testimony below from the d n a expert was essentially on contradicted about the following points one his d n a was on the handle of the gun two more of his d n a was on that gun and from any other person who handled the gun and three she says it's quote unlikely that his d n a would have gone on the gun in that quantity if through some sort of secondary transfer no expert says otherwise how much time passed from the time he was apprehended until the d n a testing was done i got them i know it was a couple of that's my that's the question of were goes that i but clearly as it was on that day right and nothing to the jury that shows at all that day that he actually possessed good good so alkan that the overwhelming  that day there's no other timeline that's presented to the jury from any other witness and so if the indictment says it's got to be on may th and maria hernandez says without contradiction from anybody that she puts the gun in the car a couple of days earlier quote and that he borrows the car quote earlier that day and he had borrowed it a couple of months earlier or the car regular he did but i think at that point you end up with one of two scenarios both of which lead to conviction number one if the jury as they did but the evidence is stronger here than it wasn't going for it because in that scenario it was a jointly occupied bedroom alongside his wife's purse which was a point that you emphasized in your opinion here we have a guy who's alone in a car for several hours with the with the gun and so we don't have that ensured i'm so even if we did make my point clear if you possess is it that day if you believe maria hernandez it's actual possession on that day if he handled it some other day which nobody says but if he did handle it some other day then then what you do is you say we constructively processed it that day why because he had power in intent and knowledge that day and how do we know that he's alone in the car and inches from his hand we know we handled it some other day this is the benford language and so forth he ran from  s and then you get there so you can get there either way one question it doesn't doesn't it has nothing to do with helping us decide this case are you aware that there is another case from utah argued last  term i can't remember the name of the key cortez is that the same error occurred and that is that there was no element of intent in constructive possession that there was neither an objection from the defense attorney argued in january right and what i can assure the court of is is this is a problem that our office is aware has happened and we have made a point of talking about this with saves to to try to make sure the fairness and if you made a point to point out to the judges well when we submit the instructions yes but it's something we'll certainly have sizemore you've got a very brief sometimes counsel like thank you to address a few points that were brought up profile there was there were still blanks for the more related to the date all of the d n a i think it was not a whole profile no it was not if there were black is i mean i don't know that me i mean she couldn't see all of the stuff that made up that person's d n a to put it quite simply but but were bad enough to identify it as belonging to the defendant she had enough to make the conclusion that based on the d n a taken directly from the defendant at the time history she could make that comparison that was it all of the d n a on the gun was taken from the handle so everybody's d n a that was found on the gun and there were at least three people if not more were taken from the handle because if if we as a court say ok there was an error made in failing to give a proper instruction and we're reversing on that issue and we're don't go along with the  or would not be retried be it what you would not be retried which i thought was absolutely but sort of in relation to one of the questions asked to my steam counsel opponent in terms of what affirming for possession versus constructive possession this court noted in a footnote in simpson that when there is a general verdict and it's not clear upon which theory of the case the jury decides i'm sorry what but not i believe it's footnote seventeen and since then and i think i will said request that the court respectfully reverse an remand and i submit the case i have a similar on a question of you lose this case tried from your office it was your honor  instructions will be not just rely upon the stipulated ones and then they listen closely in the courtroom as those are given yes your honor there are already discussions to that effect do you have any explanation of what in the world has gone on we have two cases now were an element is missing i'm shocked and yet we are all human which is why we get the benefit of this court to correct our human