my name stands and from the federal defenders in denver and i'm here for then john it's undisputed in the district court plainly and by failing to include the element of intent in its instruction on constructive possession so the key question on appeal is whether there is a lease inable probability that this mistake affected the jury's verdict on the gun counts there is a reasonable probability especially on the nine hundred and twenty four seek verdict form the stipulation in the jury instructions all make clear that the jury convicted on that the copy the picture of the are knock off on the front seat yes was there a general instruction that would have allowed the jury to couldn't sit or that  and the next twenty four dollars c instruction did include that gun that was part of what the jury to consider but so your position is it was confusing though because you have this construct this constructive possession instruction with a was probably the basis of the jerry's conviction but it said in clear they could convict on that was for ten under the instructions that they were given they had to find it is simply automatic assault weapon but they were never given a definition of that term and there was never any expert evidence that it satisfied that definition that it qualified i mean could the jury from their own personal experience make that make that determination i mean i'm just looking at the not very good picture of the weapon and i can see the  magazine and to see that it's a multi round semiautomatic weapon just for my own personal experience could the jurors of made the finding as well i mean surely the jurors can bring their personal experience but i don't think it's reasonable to assume that all of these jurors had experience with firearms or would really even know what an a k forty seven style weapon was you know it was described as as an a k forty seven style if you know what differences there are whether those differences are relevant no reason for a jury finding on that i think that you know the discussion that led up to the inclusion of this special interactive trade on the part of this not in the record i don't know why but it was done off the record but again the only reasonable explanation for it is that they thought it was necessary to trigger the ten year that they didn't think the want to tend to do it otherwise there's no reason to include a special interactive type of either gun can service the ten year then so as to the shotgun in the air in the construct possession struction was prejudicial because the intent to exercise control on that was weak st there's no evidence that he mr john actually possess that so the jury necessarily relied on the constructive possession instruction client client's car also what it was my client's car that's but as we pointed out in the brief the jury had every reason to doubt mr lee's credibility on any points where he wasn't corroborated maybe he was a cooperator and he got up on the stand and adamantly denied even in the face of a fifteen year mandatory minimum that he said he didn't expect any benefit at all that's incredible on its face but its expression incredible in light of the other cooperators testimony who is mr lee's friend identical situated he freely conceded that he expected the benefit so i don't like what the jury most of them a jury have to believe mr lee to convict on a drug conspiracy charge no not at all that's what they had to believe ten but but they have to believe i think that was too squished i didn't i'm maybe i misstated i do believe that the jury credited him on the drug stuff but but i think they may have only done that because it was corroborated by the other cooperate or he didn't lie on the stand and text messages so in that situation where he's corroborated by other evidence the jury may have felt comfortable relying on him but when there was no corroboration as there wasn't d with the guns they may have been skeptical and the jury instructions allowed them to do that they said in the council they may be skeptical but that's a fact question that they get the determine the credibility on and your client got convicted well yes that's true but what i'm trying to washer ten was the testimony of the and again that you know what did the opposition testify that it looked like someone tried to clear a jam which obviously would have required handling the fire on but it's clear we know that that didn't happen on the scene but the sniper do have so some facts some of the other cases don't have you have them below the erroneous instruction you have an instruction that talks about the intent requirement and then you know as i understand it at the closing the government of the prosecutor did state the correct language in describing what the jury had to do what's your what's your rebuttal to to those points well one of them did the jury is not going to give credence to the government's power point over the judge's instructions the judge instructed the jury that they had to follow the instructions given by the judge so any discrepancy did they even notice it's going to be resolved in not argue joint session and in any event you know what these two instructions did was basically set up to standards one requires intent one doesn't so who knows which one the jury is necessarily going to go in in terms of i'm  erroneous instruction lingered so long after the supreme court decision in the henderson yeah i cannot answer that question unfortunately i don't know why a person al she might have more knowledge about that you know one other point i'd like to make is that you know jets tend to get as you mentioned that there's been several of these cases in this case is actually quite similar to some more of which was the most recent again it was a car case in that case the defend was the only person in the car although this court treated it as a joint occupancy case because the car belonged to his ex girlfriend but the gun was found in the center console which the order said was readily accessible to him the gun even had his d n a on it so the jury knew that he had handled it at some point this case is weaker than some are because one there's two people on this are not just one and two there's no evidence that he actually handled the gun residence more there was it must be quite as for the that and hence meant under c one b ceased to apply when b assault weapon ban expired the sunset provision of the public safety and recreational firearms use or protection year statutory minimum under c one b was if he possessed the water cannon the backseat the other gun the semiautomatic assault weapon that was found next to him would still qualify to support a conviction under ninety four dollars c one a which is a lesser included offense and because it does not require the finding of a specific type of firearm and for that that i think explains why the  that i mean as far as we're concerned today i mean as the assault rifle we just need not consider that i mean was the jury instruction in such a way that they could have found on the lesser included  the jury's finding of guilt it on count three before the special verdict form would be sufficient to sustain mr john's conviction on one dollar twenty four  jealous your position on whether we can uphold the conviction based on the on the washer the watts or ten can get held either under a constructed or an actual possession theory because as mr lee's testimony established that he saw that firearm in the back seat of mr john's car earlier on the same day and it was found in the front seat of mr john's car that same day that's circumstantial evidence supports his actual possession of the firearm on the day charged ok maybe unstructured number that would have led the jury did out the actual actual actual possession and b i'm sorry my camera keeps on them so it as well however constructive because the jury was correctly instructed that joint possession requires both the power and intent to exercise control dominion and control the jury could have found both the that mr john possessed both wants or ten s e that it was a semiautomatic they were not required to convict under c one and a they were not required to find it was a semi automatic assault weapon and in order to convict under see one be they shotgun in fact as the facts demonstrate mr young exercised actual control over the other three guns and traveled to the point where that guy where the gu were seized that day in order to protect a large quantity of drugs that he had supplied to an individual he had only met the day before and given that and given the fact that mr john was actually riding shotgun and it the jury could easily infer his intention to exercise control not just over the rifle that was placed immediately next to him but over the side of chalk and that was positioned in such a way and behind the driver's seat that it was readily accessible to mr young but not readily accessible to the driver mr liebeler let me ask you a question about the instructions so the instruction you and i the statute defining the offense and the elements but then the element of possession is defined generically in that one instruction on page two of four and that and that defines actual possession constructive possession and joint possession and the mission of the words and intention are in that general possession instruction which is why mr john has time to both counts three and count four on based on that possession instruction finds it incredible that misters young didn't know what to expect didn't know what benefit he hoped to gain from the government but the jury did find that credible and credit is testimony which was  most favorable to the jury verdict anyway so we would give him the benefit of the doubt well this is not a sufficiency challenge and so the standard is somewhat different but the burden does fall on mr john to show a reasonable probability that the outcome would have been different though the real question here is whether the court on review can be comfortable that the outcome of the jury trial would have been the same even with the correct instruction and for several reasons this court should be comfortable in this case st that the actual erroneous instruction correctly defined that requirements of joint possession the gun that mr sanford a center for it appears to be focusing on the sawed off shotgun in the backseat was found in a car with two individuals and therefore in determining whether to hold mr jiang responsible for that gun the jury would have had to refer to that joint possession instruction which specifically referenced the intent to exercise dominion and control next that the jury instructions were read to the jury by the court unlike there's the actual the jury instruction provided or proffered to the jury by the government was shown on a powerpoint not once but twice and that exact language emphasizing power and intention to exercise control was highlighted on each of those occasions finally  like for example in simpson the government here in closing argument emphasized the requirement that if for constructive possession mr young xor demonstrate his intention to exercise control and  that the attorney during that closing argument specifically asked who had the intention to use those guns and specifically reference the evidence of mr johns intention to find those to use the firearms that plain view they were not concealed they were not in a closed compartment center compartment they were not found in the bag during a search warrant they were one of them was literally next to him and the other in arms reach behind him and under those circumstances and given the context in which those guns were found i e traveling seventy miles outside of tulsa following another car to do a five pound drug deal the jury easily could and inferred that mr  intended to exercise dominion and control over both of those guns and for that reason these facts are stronger than those in all thirty three of these cases and only weaker than little in the  context of five this being joint possession rather than sole possession as in little but here unlike in little and the other cases the jury actually heard a correct instruction as to joint possession that it imagine circumstances under which that mission was intentional particularly given that the language is correct in the sentence immediately following we are ar thank you i'd like to start by addressing the joint possession instruction it is very unlikely that the jury relied on that instruction because joint possession was not the government's theory if you look at the closing argument what the government argued as to the guns found in mr john's car was that he had exclusive possession of them so the idea that the jury is going to look at this instruction enjoy it as action and use that when it was in the period dance to them seems pretty unlikely nd you know if you look at the joint possession instruction it just conflicts with the constructive possession instruction one of them requires intent one of them improperly does not so it is not as if the jury if they who knows which one they decided to follow probably the constructive possession instruction because that is the government's theory as to the sh joint possession so on ken lee's credibility you don't look at the evidence and whiteness favorable to the government you've assessed the strength of the government's case as a whole and that includes assessing the strength of their witnesses were not had his testimony have been supported by so much other independent evidence i think that that is possible but i don't think you can assume that that there is no reasonable probability that it could be different i mean the jury was instructed that they  could believe him believe any witness in a whole in part they could disbelieve them entirely you know the jury was told you don't have to believe everything they say just because they believe them on one thing doesn't mean they believe them on everything and it stands to reason that they're going to believe them on st corroborated by reliable evidence but when there's been he's all the government has they could be skeptical of that especially because the government has the prove everything beyond a reasonable doubt and could you respond to the point that they could have found actual possession because of the inconsistent with where the gun was found if somebody says it in the back seat they generally just mean in the back seat area that could just as easily be the floorboard as the seat but even if it was new there's no evidence no body saw mr john knew that maybe mr lorimer maybe somebody else and but it was directly behind the center console so it was easily accessible to either driver now there was a police officer he testified that it would have been difficult for the driver to access it but the jury had to photograph this isn't something uniquely with a police officer training and