on two of those issues the first being the error in instruction fourteen regarding constructive possession and the second being the district court's admission of mr scott's prior conviction u intent and so then the question becomes whether that error affected mr scott substantial rights the analysis under holly when the government advances two theories in which the defendant may be held guilty is that we focus on the evidence supporting the theory on which the jury was improperly instructed and there have been three published opinions a sensually that have grappled with this issue  since that the tenth circuit inserted the element of intent into constructive possession little since and benford and we think this case is far closer to simpson  which held that the error was harmful or that affected the defendant substantial rights as you remember in little the court found it harmless because that there was evidence submitted that showed to an absolute certainty that the defendant exercised exclusive control over the location of the premises in which the firearm was found by contrast in simpson and benford the court found it important that it was a joint occupancy situation where there was more than one individual put sides the defendant who had access to the premises and the location in which the firearms located and for that reason found that the omission of intent was harmful in those cases in this case defense counsel's one of defense counsel's most prominent themes at trial was that the government had failed to explore or investigate whether the other occupants of the vehicle were somehow connected to the fire that was found in the car and that in response the government did its best to connect mr scott in particular to that firearm but then held as the ultimate backdrop that it didn't matter because under instruction was next to the gun underneath the middle of the so he so he was one of three air sorry i didn't hear the first part of the question sorry who are just i was just looking at the evidence that links the other evidence that link got to the firearm well there were four discrete items of evidence that that they tried to link mr scott to the firearm one was proximity but again there were three to at least two probably three other occupants of the car  at least one other who is sitting with the who is closest i don't think the evidence establishes who was closest i think there were two occupants in the backseat and the gun was found in the middle under the back seat and so there was mr scott in the back seat and then there was i believe mr dixon in the back seat and and on the d n a point yes mr scott's d n a was found on the firearm along with two or three other d n a profiles the terminology that she uses with major contributor major contribution and we don't what we don't know though is the significance of that evidence and i think if you look at the trial testimony you see essentially a battle of the experts as to what exactly that signif d in terms of whether mr scott was most likely to have touched the gun whether he is particularly a shatter of d n a does or record indicate whether there can be more than one major contributor it's far as i'm aware that that discussion was not part of of what happened below that that question was not posed and i don't know what the science has to say about  that what i do know is that the defense made a major part of its case its own d n a expert which pointed out that the limitations of trace d n a evidence that it is impossible to say how the d n a arrived on the it is impossible to say under what circumstances it's impossible to say when it arrived on the gun and that brings up i think a crucial point about the harmless because that conclusion of the trial the government is focusing its argument on the other act evidence which i was going to get to in a minute but if the d n a evidence was so overwhelming why did the government feel the need to emphasize to the to the jury the other examples and again it is in joint occupancy situations when this court has found the omission in that intent in a constructive possession instruction to be most problematic and the the methods the government used here to try and connect mr scott to the farm could have equally applied to the other occupants of the vehicle the second point i wanted to make this morning has to do with the district court's admission under rule for a for b of mr scott's prior conviction from lawful possession of a firearm as this court is well aware rule for a for b asks jurors and lawyers and courts to identify a chain of reasoning that connects other act evidence to a permissible purpose and a rule for or for b that does not require the jury or the court to travel through the character propensity box and when the permissible purpose is knowledge this court and other courts across the country consistently require similarity between the other act evidence and the charged offense and is that  is that really fair mean in murrin on it was ten years between the prior conviction and that opinion doesn't doesn't talk about the similarity it does and then as  thorne i don't think the question in that issue was presented with respect to whether a prior conviction the bare fact of a prior conviction was sufficiently similar to the charged offense to warrant inference of knowledge and i do think we talk about united states will versus wilson in our briefing and i understand that wilson deals with cocaine and more and deals with with firearms but if you read wilson you see a defendant who argues i did not use me i did not know the cocaine was in the backyard of the residence i was occupying he's claiming a lack of knowledge about the location of the cocaine just like in moore and the defendant is claiming a lack of knowledge about the same crime that's undoubtedly true but the but if you read page seven eighty four of wilson what you see them focusing on with respect to the admission of the prior cocaine possession conviction is knowing possession is exactly the element that is it issue here and if you read that it's now in possession with intent to distribute in the crime at issue i understand that my only point is that it is a separate element it the government in that case has to prove as a separate element that the defendant knowingly possessed the cocaine and in order to prove that element the government introduced the prior conviction for possession of cocaine and this court said that although it it suggests the defendant knew what cocaine as a substance was it did not suggest that he knew there was cocaine in the backyard and i think that that is fundamentally inconsistent be that as it may what about the two thousand and ten conviction though the underlying facts is in there's interest similarity there there is and i'm not here to deny that there is substantial similarity but what i am here to insist upon is that the government told the district court that we are not going to get into those facts when we present the case to the trial well but try that but that's not focused focuses on what the proffer is before trial that correct well the focus is on the proffer as long as the government is insisting that what it will present at trial is consistent with the proffer well it was just you know it was consistent with the proffer it just didn't include everything because as i understand from the proper my reading of it was that it was very similar here isn't it so it is so but it is crucial that at the pretrial hearing the government told the district court we are not going to get into those facts and circumstances that trial and so when the district court made its ruling as t benefit by not putting in all the facts but merely the the fact that it was a conviction for possession in fact they didn't go into the underlying evidence and that is it was stuck between  i mean it argued in a rule for a or b but it was the government who unilaterally elected to not introduce those facts and circumstances had they done so yes this case would have been closer to laws kano's the lobos where you have similar may please a court coral shock representing the united states like to begin by addressing the jury instruction issue satisfy the third prong the planer review here if the defendants burden to show that there's a reasonable probability that this jury despite finding that the defendant knew about a gun hidden under his seat which he had the power to take control over nevertheless would have found that he did not intend to exercise that control and based on the evidence at trial and in  particular a statement in the jury instruction that the jury was required to find a connection between the defendant and the gun there is no reason probability that the jury would have made that find here and i'd like first the defendant's d n a was on the guy and not only that but the recall whether there was other d n a on the magazine or whether there was no d n a on the magazine but that's correct and there was no attempt to see if the other occupants in the car the any matched the d n a on the gun there's probably would have found not not theoretical possibilities and here where the defense where the jury found that the defendant knew about the guy and the defendant's d n a was on the gun the reasonable probability is that the jury would have found that the tha wasn't alone enough but incense and that's all there was here we have a lot more than the fact that the defendant had possessed the gun in the past we have the fact that the gun was found hidden under his seat and exhibit twenty three shows that it was under the fence that it wasn't simply in the middle of the backseat it was actually under that fantasy specifically there was also testimony that it could have moved during that traffic accident i don't think there was testimony there was argument on that point there was the testimony was that the seat with not that the gun to move the point is they couldn't move yeah i think the reason for that testimony was the point that it was easy to lift it up and put a gun under there that was the context of the testimony the back seat was a bench seat the car with a felony conviction so she was the one i who had the reason to hide it we also know that the defendant knew that the jury found that the defendant knew the gun was there we also know that the jury found a conviction connection between the defendant in the gun beyond his mere presence in the vehicle so i would i would argue that the connection between the defendant in the gun i was much stronger here than it was in sense and where i began was simply found in a jointly occupied space contributor means it does indicate that and i believe i'm stating it correctly that it means that there's more of his d n a than anybody else's so so what this really comes down to is the defendant has given no reason to believe that this jury would have found that this defendant notwithstanding his prior conviction got into this car knowing that there was a gun hidden under his the a gun that he had possessed before and a gun that he had access to that night and the power to control that night but this time did not intend to exercise that control in that in the trial is to change wish from the sentencing did the evidence come in about scott anyway and i would submit that this case is actually more like fights and i recognize fights is an unpublished case a but in that case like here the gun was found in a jointly occupied vehicle but it was found in a location that was more specifically connected to the theory in the case all of the evidence that the government focused on well the government's argument pretty clearly tells the jury that they can convict if he knew the gun was there it doesn't require that he exercise control over and i mean the government argued the instruction the way it was given it did the government essentially just cited the instruction and it quoted the government essentially just quoted the instruction but all of the evidence that the government gave was presenting a theory that the defendant put it there i mean that was the whole focus of the d n a evidence that was the focus of why the government argued that it was positioned in a way consistent with the defendant having put it there the attempts to link the defendant to the bandanna and what that was found with the gun all of that that the theory the fact that the defendant was the only one with a felony conviction and therefore the only one who had the reason to hide all  think driving around with a gun in the car there might be other people who thought it was a good idea to hide it i don't know if somebody is lawfully able to possess a gun i don't know that there's any reason to pick up the backseat and put a gun  you don't have to go through those types of contortion it's a bench c e o just slip it under there sure but if you're if you're entitled to lawfully possess a gun i don't know that you have any reason to do that i don't think that the rate that an average person without a felony would get in a car accident and immediately go hide a lawful i guess it depends on what they're up to sure but but the point here is that the government's theory was that it was the defendant's gun and when the jury found that the government clearly argued that you don't have to find that it's the defendant's gun that you that everyone in the car together could have constructive possession more than one person can have constructive possession of this gun that's true and that's still the case today even with intent being a requirement there can still be multiple people but i would just submit that when the when the government did make that statement it was after it had presented i entire theory about why this was the defendant's gun and then it just simply says that at the end in addition all we need is knowledge and access and i don't think that phrase it that way just that multiple people can have  simultaneously happens to us and in you know in five weeks you had a backpack where the defendant emitted it was his backpack but that was saying a lot and know there was a gun in there and he loaned it to his friend but then they also found his passport in there they found a can and connection to his computer in there they found a bunch of stuff linking the backpack directly to the defendant i don't think this case is at all what i would say that here the defendant admitted that it was his seat and they found d n a linking that gun to him so i would say that there is a similarity in that way that he she admitted that it was in a place where associated with him and they found evidence linking him fights i just one other point on distinguishing i mentioned simpson but also distinguishing them for benford in the same way it was simply a jointly occupied space of generally but another issue in benford was that the court focused on the fact that the gun was in plain view and where the gun is in plain view it's much more plausible that you know about the gun without any intent to exercise control over it where the gun is not in plain view like here if the defendant knows about it it's more likely that the senate has an intent over it because if he walks in the room he knows about it on the other hand if the gun is hidden it's not something where or where a person would just know about the gun without having had some involvement in getting the  thing he was in fact one who placed the gun there recover my point is we know that he knew about the gun and how would he know about the gun when it wasn't in plain view unless he had some involvement in there or he saw somebody probative now if a defendant has a prior felony possession conviction it's more likely that that defendant should be on notice that he shouldn't be around guns if you nevertheless knows about a gun and gets in a car knowing that there's a gun hidden under his seat it's more likely that he intends to exercise control over that guy well then should we address the four of four be issue depending upon whether the prior conviction w before after little whether the prior conviction was before or after whether the prior conviction actually involved in intent requirement i don't think that the point that i'm making is that once you have a prior felony conviction you're on notice that you shouldn't you shouldn't possess guns and you shouldn't be around guns if you never was know about it so it's not what happened before it's that you you know that you're not entitled to have guns and so if you nevertheless put yourself in a situation where you know that there's a gun and you are close to a gun it's more likely that you would intend if it's not your gun and you have no intent to have any connection of it's gone there's no reason for a person to put themselves in a position put themselves at that risk of being so closely connected to a golf isn't it if he's in a car and he knows somebody is with then he then he is on notice not to be in that car only if he intends to exercise control over that it it certainly makes it more likely that  received this prior conviction it's more likely that he's going to be on alert to be checking to know whether there's a gun in that car if you nevertheless gets in that car first of all it's more likely that he knows the guns there because he's on alert and should be checking that out if he does know that there's a gun in the car and nevertheless puts itself in that position so is why i don't have any intent so i'm i'm good to go on constructive possession and i'm i'm not vulnerable  it's theoretical it's theoretically possible i mean i'm in a kitchen with the friend and the friend has a gun in the kitchen it's i know i know the guns there are right it's possible but we're dealing with what whether it makes it more likely or not why is it more likely because the knowledge component the knowledge component because it's more likely that a defendant who has a prior conviction would be asking is there a gun around and and therefore if is a gun around it's more likely that he would know about it than somebody who has no reason to be checked and there's no reason that they would know about a gun that might be hidden somewhere it's more likely that this person would be would be checking is assuming that we don't think the evidence is quite trial distinguished from the proffer just shows mere possession isn't that really going to convict a guy on a propensity to possess he did it in the past so he did it now and if i could answer that question i would say it's it would be closer to that i would say it would still be controlled by moran because there was nothing else there i would say that the specific propensity you're talking about is not the general propensity or character trait that for a for be as worried about so it so i would answer that that way i would say that moran controls and i would also say that as you already pointed out there were similarities here and the reason that we're not talking about we're doing the balancing we're not talking about profit we're talking about the evidence at trial correct correct but we would need to be focused on when the judge ruled on the admissibility you know but if we're focusing on what came in at trial the similarity of the circumstances did not come in it was the mere conviction sure in in that case that we'd be dealing with a plain error standard of review because there was no objection on four or three based on what happened at trial so so so yes if we're owned the firearm and it was that analysis that led the court to find that error harmless in that case it is in your best case on this focusing on the balancing left open the subsequent courts council relies on miranda mcglothin to say well the rule for three analysis is controlled by those cases here as well but here is a significant difference and i take issue with th error point counsel renewed the objection to the conviction evidence at trial not as to the ex girlfriends testimony but as to the conviction and the rule for all four b analysis and includes a rule for three balancing but at trial defense counsel set up and i believe no fewer than three times in his opening statement stated that mr scott is no stranger to guns is not a virgin when it comes to added by the prior conviction the bare fact of the prior conviction that he possessed a different firearm in the past there is no additional probative value added by that and in the other than propensity other than propensity exactly right and in both mclaughlin court emphasized the tremendous and grave danger associated with introducing evidence of a prior conviction especially when that prior conviction conviction is exactly the same crime for which the defendant is