may please the court elizabeth all come behalf of appellant charles burns who is in the audience today mr burns stands convicted of possessing a firearm in a school zone despite the fact that the jury never found him guilty of every element of offense and that alone renders this conviction unconstitutional but there's more this was a close case but also entered on two of the three counts the evidence of constructive possession on the rd count was thin drea correct but then a district court entered an acquittal ok so two counts stand acquitted additional jury instruction and evidence preservation era further taint that count so the court should remand for either a dismissal or a new trial like to start with the issue with respect to the school every circuit to consider the question of a school zone and whether a school meets the statutory definition has held that that is a jury determination in this case the court took it upon itself to make that determination and that was unconstitutional there's simply no further words to say the court considered the exact situation in medley with respect to whether or not a state court judge erred by taking a jury decision away on with this act whether a firearm constitutes a foot flare gun constitutes a firearm and on hay vs review this court reversed finding that that should have been a jury determination here the review is to novell and there can mean no doubt that the definition of elementary school it's whether it provides elementary education and that is a that is about the characteristics of the school that is a purely factual decision the only case the district court cited for the proposition to decide whether leo well the court the district court found that based on the superintendent of schools amicus brief that a transitional kindergarten program that meets the statutory definition would be considered elementary education so the jury instruction would be the court has determined that transitional kindergarten as statutory defined is elementary education and it is for you the jury to decide whether or not we all have  provided that education the evidence on the trial record is scant and whether or not that was the case the government noticed a witness late two days before trial the witness was not qualified to testify about whether in the applicable school year two thousand and fourteen and fifteen which is when the sale took place that school provided transitional kindergarten she wasn't in an early education role she didn't know the age of what transitional can or gardeners were she confused whether or not teachers needed to be certificate or credentialed on balance on the whole her testimony lacked credibility so this court should remain on for a new trial on that issue so your argument is the judge has it with him his or her power to determine the definition and a transitional qualifies as an elementary school with them the question is whether the school actually is a traditional school at the time of the right and just to be clear it's a provide elementary education so it's not even like the drug's own statue where they have to prove it's an elementary school in fact the school would definitively have not qualified under  sixty because the definition in that statute is an elementary school the school is not an elementary school the principal of the school testified at trial at six hundred and eighty five dollars that this is not an elementary school so it's because of this weird definition provides elementary education that this is an intensely factual question and mr burns was deprived due process of law because the jury did not get to make that determination the error was not harmless and the government bears the burden of that and it would have to show that the error was harmless beyond a reasonable doubt as to whether we all have our provided that education so on that issue alone this court should remain for a new trial but as i've indicated there is more there is also significant jury instruction error with respect to the reasonable cause to believe element which is part of the school's own count the district court error because it did not accurately describe the mens rea element of the charge crime to the jury in a supplemental jury instruction the jury was clearly struggling with the definition of reasonable cause to believe couldn't be any clearer when the jury sends a note please provide us with the legal definition of reasonable cause to believe the district court only gave half of the th circuit models instruction on the eight hundred and forty one dollars aspect of research cause to believe the only the district court omitted the critical part of that instruction which comes from and that is that he did not the district court did not direct the jury to evaluate science or through the lens of the defendant  cannot be clearer the district court in its supplemental instruction should have written you must consider the knowledge and sophistication of eve of the defendant or the person that he allegedly aided and abetted in order to find model on possession this evidence is thin and the court found the aiding and abetting context much stronger but here the jury knew nothing about the alleged eighty eight dollars or in a better being a guy being a guy all we knew about the new guy was that the agents had never seen him in the area before they couldn't find him we don't even know if he could read we have no idea what the state of his knowledge or his level of sophistication watts with respect to that familiarity on the air on in that area the district court omitted half of the model instruction that is fair and it's fair that requires a reversal unless the government can prove it was harmless beyond a reasonable doubt in other words this court would have to be convinced beyond a reasonable doubt that mr burns would still have been convicted even if the jury did receive the full supplemental instruction there's a further error that infected this trial and that is respect to missing evidence this case was about control the jury district court found the mr burns did not physically there was there's insufficient evidence that mr burns physically possessed the firearm this all came down to construction constructive possession and aiding and abetting it was the whole case was built on the communications between mr burns and the c i fifty eight text messages were not preserved by the agent in this case only fourteen were preserved and critically the text messages that weren't preserved seventeen of them were on the day of the transaction the district court found this troubling especially because the earlier calls that were preserved repeatedly show that mr burns himself did not possess any guns at all he was was a middle man he was t bring buyer a together with seller be at exhibit three he said let me call and see if my brother still got it at exhibit a he says mr burns said to the c i his partner got rid of it yesterday i'll try to find something else at exhibit eleven this is a critical exhibit eleven when the c i tells mr burns he can't do the transaction that day this is with respect to the nd failed purchase and he should hold it until monday burns exasperatedly says well there's there's no federal statute to convict a middleman on one sale so the statute of conviction is possession ok would have had to possess the gun either concert you would have had to control the fire and that's what's illegal and you're saying there's no evidence that he controlled the firearm that the evidence may or may not have been found in these texts correct because they were seventeen on the day of the transaction so for example any text that says my brother's running late he's not going to bring it till x time or my brother says it's eight hundred dollars not seven hundred dollars that kind of evidence would have supported a lot of construction possession theory and because the agents didn't preserve that evidence we don't have it and when a case is like this where the evidence is so thin to begin with that that that's a significant error but what you will but let me understand the argument i understand the potential bad for you know you do not and that's where the district court erred say more on that point ok so the district court failed to consider that the controlling authority on this point is the concurrence justice kennedy's concurrence in loud hawk which very clearly set forth that bad faith was it was a factor to be considered but it was not required in that case to find that an adverse inference instruction was appropriate there is a line of case law in the circuit unfortunately starting with the ginnell continuing through romo chavez that ignores the controlling concurrence in loud talk that says bad faith is required for an adverse inference instruction that line of authority is simply wrong it's wrong l your honor i think the appropriate remedy would be to remain and for a new trial and for the district court to apply the proper legal standard the answer to your st question is if he had applied the proper legal standard then we would be on the nd prong of abuse of discretion which would be whether his application was illogical or lacked foundation in the record but here he didn't apply the proper legal standard and that meets abuse of discretion and so then it just turns to the defendant to show prejudice and certainly that the defendant was prejudice by the missing evidence and by the lack of the adverse inference instruction given the finesse of the evidence and the fact that this was a close case well we can't quite know if there's prejudice we might suspect because i mean there's a circular problem we don't know for sure what the  might have been because we don't with the e mails well that's correct and that's sort of where the district court went but that would put defendants one impossible standard with respect to agents not preserving text message evidence right and so that can't be the right  the gun is there yes there's no evidence that mr burns ever touched that gun correct and that's what the district court found he said he found that there was no there was insufficient evidence on physical possession right possession when there's no evidence that shows that he ever touched it or that he ever had any personal control over it all want to rule the middle man right and the last point is the key personal control the answer is no the whole central issue was that of control and that's what the district court said the question in this case is did he ever control the weapon and he said it's not that simple because deals are susceptible to contrary interpretations especially when one transactions fell through by virtue of the fact that the seller sold the weapon suggesting no control by the defendant the district court saw that there was very thin evidence on control and the issue with the text messages is agent does not choose to preserve seventeen text messages on the day of the transaction and if one of those messages had said for example being a guy going to be late he would have referred to was beneath my bro's going to be late my bro can't get it until ten am that further distances mr burns from any aspect of control and that's why these honour's specifically judge fletcher to places in the record where the just or court did consider the loud hawk factors and correctly applied them here and specifically at  deliberate whether they were taken in good faith or with reason reasonable justification and here the facts show that they were taken in good faith that they were there was reasonable justification and the district court considered that testimony on the phone being thrown out came from the confidential informant and it was a bit unclear i would submit because he's asked by the government attorney did anyone from law enforcement instruct you to get rid of the phone and mr bol believe that there's a lot of facts in this record your honor that really show that there was bad faith certainly so i'm not saying bad faith but you said there was some justification and i'm challenging whether or not there was a justification yes or if i could go back to what the agents on the during another controlled purchase and our agent garza testified at that point mediately turned from investigative mode to a safety safety mode but agent garza testified repeatedly that he tried made every given the technology that he had to preserve as many test messages as possible he says this again and again during his testimony he would make every effort to get as much documentation when we met we would try to capture as many text messages as we could not only  's pretty sketchy well your honor if i could take i'd like to start with the nd point you make which is that there's a factual dispute there's there is no factual dispute here that transitional kindergarten was provided by layla harvard school and i point your honor to the record both whatever whatever things that she doesn't know about certain aspects of elementary education when she's cross examined there's still no dispute that little harvard offered that transitional kindergarten program in april of two thousand and fifteen but she testifies that they did not have a  so whether or not she testifies that in elementary school yes your honor that's elementary education if the court looks to la rue which is the california court of appeals decision that cites a supreme court decision on this point  and four year olds go to preschool they don't go to kindergarten well i don't i don't i don't see what relevance that has if this is a transitional kindergarten program your honor and it is there's no factual dispute that this is transitional kindergarten and it's a school that provides it  it's a it's a san francisco unified public school and the state law defines that as kindergarten it doesn't it doesn't seem to me that there's any relevance to what age the students are because as a matter of state law this is kindergarten and i'd like to turn to your your other question about whether it's a question of law or question of fact because regardless of the harmless error analysis which i think there's really no factual dispute that this is a t k program as an initial matter congress and after the section one t chose very specific language dictating how a court could decide whether or not a school qualified and they stated in one thousand and one dollars it's as determined by state law this is a difference from what congress did in section  sixty where it did not include this sort of copy out of its as determined by state law i would submit that that is an important distinction and that this court's ruling in medley is instructive on that point you know here's my problem with argument let's assume that we've got an element of a crime that needs to be needs to be proven and it's a factual question and there's a lot of evidence that comes in and the judge in his own mind in a criminal case says you know this is overwhelming this is been proven innocent living is unconscious and does that mean the judge can take that question away from the jury no i think it's going to depend on depend on what kind of question we're asking and that's how this is court has handled it so it is a pedo this court said yes there's always going to be some facts about whether or not an indian tribe is on the federally recognized list or not on the list or whether it's you know there will be some facts around that point well they're not so much i mean switch but this court did provide that the if there was evidence that it needed from the list the court could take judicial notice of that or consider other evidence my point simply is i think any question any question of law has little nuggets of fact the real question is is this something that gets to the heart of an element of a crime such that you probably will it seems to me that this is an element of the crime i mean in order for this to be a crime it has to be an elementary school in a school is defined here as providing elementary education and assuming that we've got sufficient evidence for the jury to conclude that this was an elementary education i think the elementary education was provided i get that does that mean the judge gets to decide the question your honor i think medley is instructive on this point so in medley this this court said that when we're looking at a state law and in that case it was the firearm and handsome and when we're looking at a state law if there is clear precedent defining that term defining that sort of element if there is if it's  fined in the same relevant statute then that can be treated as a trial judge as a matter of law and in that case it was the example and wrong in california court of appeals decision where this court of appeals said you know whether a traditional pistol is a firearm is so clear that we can decide that as a matter of law in this court favorably cited that case in making the point that there's going to be times where it's very clearly defined and it's defined in the code it's defined by state precedent and in those situations it's not an error for the trial court to say this is a matter of law that's exactly what we have here transitional kindergarten is clearly defined in precedent it's clearly defined in the code it's a matter of law under california law and i decide whether or not that's sufficient to provide a beyond a reasonable doubt even of the evidence is on contradicted she's a little bit well your honor even if even if we're going to get to the harmless error analysis here and judge judge  harvard then provides transitional kindergarten and i think that would be a fine jury instruction here but the problem for a defense on this appeal is that there was no factual dispute about whether or not transitional kindergarten was provided by leo harford they had the opportunity they called their own witness they cross examined the government's witness extensively there is simply no fact factual dispute in the record if you go back and read the testimony of both of those witnesses there is no dispute that this school provides transitional kindergarten and this is the point the judge fletcher is trying to make the fact that while there may be a clear definition of transitional kindergarden the statute looks to whether it's as the statute the way that the statutes worded is provides elementary education as determined by state law while the state law provides a definition and presumably that's a question of law and the would offer an instruction to that effect which the question remains was that provided that's seems to me quintessentially a fact question your honor if this court is to find in fact question even on that there was clear evidence that was undisputed but that's but that's my point is the judge in whenever you can under subpoena to evidence that in the view of the court or maybe in the view of the court of appeals as well irrefutably establishes the point does that mean the jury doesn't get to element of the crime that the government's to prove beyond a reasonable doubt is not given to the jury i believe that's not harm we don't review that for harmless error your honor i would submit that if if this court made an error in in simply not submitting whether hardly olah was a school that would be reviewed for harmless error i don't believe that defense counsel has cited precedent suggesting adman's and that is the case that looks at this exact issue in the school context for section eight hundred and sixty dollars and there the court said had the government simply put on a witness to describe what the school was we would not be at the stage of litigation that yes this is can be considered under harmless error review that this is exactly why harmless error review exists because we had a full some trial on this point and there was a very extensive factual record made about what what curriculum and what education harvard leo provides the problem for defense was that their witness didn't give them what they wanted didn't say that there was no transitional kindergarten program there at the time of the offense there and witness said that there was  we're left with a situation where the law is is clear under california state law a transitional kindergarten is elementary education and the record is clear your honor this is exactly the type of matter that should be reviewed for harmless error because it would be simply a waste of judicial resources to go back to the district court at this stage and i'd also say just considering the posture here where this was an instruction that the defense judge that this is something for the jury to decide and then when then when the judge was monte's is no i'm going to decide if the government says well the government as a matter of trial strategy the government out of an abundance of caution believes that it could go to the jury it should go to the jury for purposes of trial but that the government always believe that the government that the court got it right when the court said it's a matter of law to decide and i don't believe that's an inconsistent position from what we're taking here but back to your point your honor i don't believe that it was merely the district court sue a spontaneous saying that this is what the court was going to do this was a this is what the defense counsel advocated for the court to do and even when women the defense counsel said that the judge you get to decide whether or not the elementary education being provided trial defense counsel said the court should decide this as a matter of law and that you know this what you mean by this the court should decide whether help hardly at all is a school as a matter of law different question the question i'm asking is whether it is designated as such a school that's not the question i'm asking the question is whether or not the education has actually been provided at the school and are you saying that the defense said that should go to the to the judge yes your honor now you can you can point me to where that where the defense says that but i the fact of whether or not we all have our provided transitional kindergarten was not uncontested it was contested and it was not supported by overwhelming evidence this is not an appropriate thing to jump off on a harmless error review our witness said he wasn't sure about whether this program was even offered at the time that this gun sale went down ms clique said it was and then when she was asked the foundation for her knowledge she said because i was the principal and i know what the programs were that she was never the principal of the all  art she wasn't in that early education office in twenty million one hundred and forty two thousand and fifteen she didn't know the name of the teacher she didn't know the age of the students she didn't know a lot that is not the kind of facts that this court can find that this error was materiality case and they found that it is subject to harmless error in which a harmless error standard is it's the government's burden and it must be proven beyond a reasonable doubt and it's only when the element in question is a uncontested and be supported by overwhelming evidence the definition of transitional kindergarten is it meets the statutory definition when it's the st year of a two year program that uses a modified king or kindergarten curriculum there was no testimony about the curriculum at all there was no testimony about there being a nd year this is not the kind of fact that a harmless error of you applies on doesn't satisfy that's what i mean is this this record is not one that harmless error can can save the government is what i'm trying to say and with there's facts to this invited error i don't know if the courts giving that any credence at all we reconstruction of that was because it was the lesser of two evils she asked well could you just tell them you're going to defer the decision because at least then it doesn't look like you're directing them to find that this is a school zone and that the government's met its burden and the courts said ok that's fair i can redo it in that manner but that was after days and filings where he we had objected to the district court's procedure that's actually a complete misrepresentation of the record their waiver argument and i will submit on the issue in the only other point that i wanted to one hundred dollars the agent freely admits that if the techs were incriminatory he would have kept them so the district court did find an element of willfulness and deliberateness in the actions of the agents not to preserve the text messages and at minimum it merited an adverse inference instruction