you the way i look at this case there are three problems they're all interrelated and they all i believe lead to the relief that i request you on behalf of my client which is that you reverse his conviction on the basis of insufficient evidence if if you don't reverse then i believe at the very least he's entitled to a new trial starting from the backwards forward there is instructional error in this case this case is a circumstantial possession of drugs case the charge mean possession intent to charges of possession with intent to distribute for a virus so during the deliberations the jury asked the court to define further define the instruction given on constructive possession in the court came up with a synonym for the word right in said ability and as i've indicated in my brief those are really not synonymous in the context of constructive possession it indicates that the jury is struggling with the concept of possession moving backwards from the ad we have the issue of the use of the so called background evidence in this case started at the very start with a tip from a confidential informant that my client was packaging drugs at this address and euclid ohio that the defendant was packaging drugs the jury struggled with that the court did give it a an instruction a question instruction but i think in this particular case in our unique case here i don't think there's any way that any curative instruction could have prevented the improper use of the information essentially the government was saying we have a witness outside the wanted to ask you about the instruction and i believe there were two curative instructions and the nd one was given the typically in response to the jurors and juries questioned as to whether or not that it could be considered in told that the term has been used background evidence and then the jury is told you can't use it as a sense and we as lawyers may pick up on the nuances of the i don't think it's realistic to assume that the jury could and in the unique setting of this particular case where it's a very thin amount of evidence against my  client i think the extra precaution is warranted and i think the courts have granted the motion literally the danger of unfair prejudice to my client was just simply too great it's not a case where you can say there's other things that didn't really hurt i think it really did hurt so that's my response to your question will if you're limiting principle then why that where you only have circumstantial evidence of a field that you can ignore or you can determine you can presume that the jury doesn't pay attention to jury instructions in that circumstance i'm trying to figure out where we're here draw the line here is right sure a jury does not follow instructions and when you think does follow instructions well let's look at this specific evidence was offered here it's testimonial let somebody else saying he did that which he's charged with it's different than just saying you know we got a tip without going into the details of the tip it's a very specific statement that's being offered and then the jury is told well don't consider this he's on trial for possessing don't consider it so my my theory on this  to the house you don't need to get into that and i cited cases in my brief and i know this court has sort of a boilerplate statement in the hardy case about how you know background evidence in general can be used but i think i think you still have to look at very carefully in each particular case and sanitize it and limit it so there's no need there's no need to even bring that type of danger into the case and let's think about it why is it being offered in the  place it's not even relevant but if it's going to be offered why is it being offered we want the jury to know you know that the police didn't just appear out of thin air but it's not why is that relevant why is the police there this was not a case where the defense was police misconduct police overreaching that's not it at all it's just a current variety search warrant case why can't we just say we got a tip we investigated got a search warrant why do we have to bring him address and gives more maybe more information that is strictly necessary to sort of set the scene that there is no instruction that can cure that harm but of structural what is the purpose of the of the information if it's being offered for everything offered as a statement about this is what happened in the miscible here say there's a constitutional problem there's a structural problem that's the powers case you can't you can't bring few minutes are not minutes but if you think before all right thank you i was basically complaining about the danger of using irrelevant information in the guise of such about such and such that's veering into a confrontation problem that's the powers case they cited in my brief and clearly in our case the jury did struggle with  and we're regulating trials we want to have a fair trial we want a decision made on a proper basis i think the court can say you can't it's too dangerous to get into these specific details because there's no real need for them why is the government offering it in the st place to set the stage i suppose but sudden the stage is not an element of the crime and it's not it's not relevant it's just not relevant so that's my discussion i has not overwhelming art sure i'll take that yes i'm happy with that position because this is like the reverberating claim you hear about another context i think there are some things that come in once they come in how can you cure that someone says he did such and such i mean that's asking an awful lot of ordinary people are not lawyers to say ok we are going to we're going to we heard it but we're going to disregard it so i will make that argument but i think i don't have to make that argument prevail because it's clearly irrelevant and it's clearly going to be in just area and the government can get bad they can get the information in we got a tip they don't have to get into the details what's the purpose of the detail if to prejudice unfairly the defendant so that's i hope that response to your question your honor and that all right finally moving backward going back to the sufficiency of the evidence what is the case against my client he stays at his mother's house and he has access to a basement the basement is also accessed by his six other brothers and his adult son and inside inside a cabinet in the basement because plain view is the bag with drugs in the scales the man is standing in an apartment and it away spaces get in his proximity is a firearm and on the firearm is his fingerprint and this court says that's not sufficient so in this particular case my client is not seen at these premises while that's being surveilled he's not present when the search warrant is executed and is his d n a is any mixture  really necessary to provide the context and this is obviously the prejudicial portion so st of all and in a motion in limine was there any discussion of the government at that point saying it was not going to get into the specifics of the ten no i don't believe that there was your honor i don't believe that i think happened differently that the investigation was incomplete because it didn't focus on his skin blues or other people that had asked us to the state where the drugs were found that the government never argue that was argued however the government was very careful to state that as best not what we were using it for and that it shouldn't come into the deliberations the government needed to explain why they tested troy baker and that that evidence his a on the bench was the strongest substantive evidence of his guilt the government never stepped over the line into arguing that because we had been he was the one that was guilty it was because we had the boyko again emphasized that when he instructed them in response to the question as far as those responses to the other question about the synonym of ability for rights months or so any subtle distinction that ne exists between ability and right and we don't really think that there was one when you look at the jury instructions as a whole they were adequate and there was no great miscarriage of again there's there's more prejudiced in property value and my colleague here was not the trial lawyer in this case i almost think of this as you can't use that wink wink you can't use it wink wink it should never have been in there in the st place and that there's a difference between saying as a defendant you know you you didn't bring in other evidence that that bias the state of mind the officers not the case the cases about that the man possessed drugs or a particular time and place it's not about did we have probable cause to get a search warrant it's not about they had i mean that's a pretrial matter that that's that's not for the trial is about the jurist not have to educate was a search warrant proper that's not an issue there's no need to bring it in so i mean it why is it brought in yes i understand there is some effort here but  i think it's not effective and wholly and entirely prejudice to my client turning back to the sufficiency of the case there are many many cases of all sufficiency of the evidence and and conflicting rules as far as i can tell but it seems to be that just because you're president someplace you're not automatically assumed to have constructive possession after all this is a constructive possession case so that he stays there there's got to be more there's got to be something showing that he had to to exercise to minyan over the drugs and if you look at the different cases the talk about if you live in a residence you're assumed to have constructive possession and they also they all are cases where the person is found there with the contraband that's in plain sight or admits that it says as you move further along with the person's not even there in our case you're left with transfer d n a in a mixture and no testing of the brothers i guess that says something that his mom's d n a was and wasn't found in the next year but but even the government's own experts said you know i can't tell you when the when the d n a got there all i can tell you is we swab the bags and we found his lab we found we found some of his d n a in there and i think that's a very slender reed that to base a conviction that results in men going to prison for two hundred months i just don't think there's sufficient evidence in this case if you look at that and i asked him article i cited in my brief i mean this d n a analysis is taking cells making caught copies of them and testing them and comparing them against against against what against the no one person and all we have in this case is someone saying well it's on there it's like the fingerprint on the gun ok it's on there we don't know how it got on there we don't all went down there and it's not a case where my guy is there with the stuff in open view so for those