was in the back seat with the handle angled towards the back and that mr walker in response to commands to get out of the car take off his seatbelt keep his hands in view and stop apparently all at  time made a deliberate motion along the lower side of his torso turning his body away from officers of the driver side door towards officers at the passenger side door in a manner that you know the jury might  that it apparently did on the fact that that was rather an unnatural response to a rather specific set of instructions about what mr walker was supposed to d tough standard here you know i mean coming up and saying it's not necessarily certain that this shows he had possession or control doesn't get it done for you i mean so a jury found that he possessed the weapon and so the question before us is whether any rational jury could find that he had immediate possession or control i guess of the ammo in this nine millimeter that's wedged in the seat between the door correct that's a fair statement of the issue is  that yes your honor with the caveat that under this court's decision in united states versus family i think you stated actual possession right constructive possession is that what was instructive here can be constructive or actual i thought it was actual the government has attempted to defend this as an actual and so the question is whether any rational jury on this record could reach that conclusion we start with the fact that the gun is is wedged into the sea inches away pretty close to us even  worse and i know that case said you know it's probably rubbing up against him i don't know that you would say that's a scene a quite known for the for our decision in that case the rubbing up against thing i mean were you know this is almost in the same location we don't know if it's rubbing but it's pretty darn close start with that i mean the location of the gun i don't hear the key answer that point because the way you started suggests that it was more in the back seat in favor of the verdict do you agree with judge kept ledge that it's next to him and if not rubbing his hip or knee close i don't believe that that's because you're all i don't believe is the only testimony as to the location of the gun came from officer started yelling and don she did have to give the wrong well but who needs to do anything if it is a good idea to let the criminal know you see the guy just grab the gun and then say we got him don't worry well i would refer the back seat like where you could reach and grab it and come up with it like it was a normal hole i recognized as good things and bad handle was a tortoise on a back seat correct it doesn't really that doesn't really say what how the gun was exactly position but it's not really it was in the back seat it's really a reference to the positioning of the handle right well i think her answer was was it in the back seat yes and then she goes on to say that think that or more so than you certainly have testimony if the going is rubbing up against the gentleman there is no is the court's wild speculation i guess in that case but i'm just sort of joking around but i mean that wasn't testimony that was a characterization of  that rule it's pretty hard not to hurt us a gun wedged into the seat right next to you well i did hear i think that it would to some extent depend on where that gun was and i do think that's why i was asking that but i think this the point that the handles up facing back just two options it's wedged into the back seat next to the door by the front seat next to the door i just don't understand any other option and if and i think there were the plausible one for the jury says the front seat i don't know possible the door wasn't open oh sorry you mean it but i'm just saying the only person who clutter seen it didn't see it i'm just not sure we can draw much from the back of other officers didn't see it i don't know how they could have seen next to would you concede that the jury could infer that mr walker knows that when it's so close to him i would dispute that on the ground that we're not ok for me i see intent ok so let me and i just so i just so you do argue that that's not enough but then when we add in the fact of this unusual movement which is i understand it and please correct me if i'm wrong ends with his hands they must have been in very close proximity to the weapon own question with and he's oriented towards the weapon that's why the officers are going bonkers because they can't see in front of him so and it's right in front of them his hands are right there can a jury then say he sees it well his and he's actually moving towards it his body was oriented towards the towards the offices driver's side window i mean whether he saw it or not really would matter i mean if you if you're aware it's there and you're making motions that are consistent with attempting to reach it that would could argue it and if the jury believed that that would be hav was he didn't know it was there in light of what were described as highly purposeful movements i don't mean that were described in that conclusory what i am saying the jury could conclude th purposeful movements could suggest that he was well aware of the location of the guy that it was his gun all the certainly the government didn't have to prove it was his gun and so he was going for it well to answers i gun was there or that he was aware other violations and that was insufficient to prove the daily news of the guns there applying the same logic we would say that the government's evidence was defendant was reaching for the gun that was right in can you can you explain next i think maybe my sense is all different from judge givens and just kept that so maybe i'm not getting what happened or what the testimony is i thought the way it worked is he's facing this way they say you know get out raise your hands unbuckled all this stuff and i thought he reaches left away from the gun to start right right and then i thought the officers anxiety was all about this blading point that at that point he's very slow and he's obscuring from them what he's doing with his hands three feet away from the gun not exactly ok so you're saying but for the gun was identified through the back door the perspective of the officer next to him at the door was the initial move as he comes around it's getting safer well let's see oh no no no no i'm gonna part doesn't bother the officer because you don't have to see if you description multiple officers reenacted it but there is direct testimony that that walker was reaching for something and as soon as both he opened the door they saw that that something was a gun that distinguishes every that the defendant relies upon appeal and actually i mean i would say to the court don't take my word for it that wasn't actually the defense theory at trial was that the officers weren't telling the truth about where the gun was right the defense theory was oh no the gun wasn't where she said it was the gun was somewhere in the back seat where we don't know who it was if you look at the defense closing argument the defense look the defense argued to the jury and was right here and he's reaching for it he's that close and he's in that kind of possession of it why would they need to send the gun for fingerprints that was the theory and then the next he goes on the ark of the defense may not but i mean it just seems to me i mean actual possession is she could you either got it at the time of the event or there's evidence from which you can draw an inference that you previously had it now there may be evidence that he knew where it was but whether there's evidence that he previously had it in his hand i'm not sure but isn't it much easier constructive possession  because the and actions would show the his intent to exercise dominion and control over it now as i understand the difference between actual and constructive and it may be as i said i don't think it makes a big difference in this case but the way i think of it i think the yeah let's see i would disagree with you about the definitions oh ok well well i think i think constructive possession is all about ability to control well i but i think the way i view constructive possession is that if i own that pad  paper and my colleague is is out in one thousand it to him to hold out in the lawyers lounge and i don't have immediate access to it or the ability to control it physically right now i still have constructive possession of it because it's mine and i told them to hold it for me and i have the intention of reclaiming it that's what i would call constructive to tell them tell me this have the gun back in the left side then you would have said all these movements mean nothing in the case turned solely on its handle being up and right next to him right that's morrison and you would say he would say that's still possession i would say yes and that's i think that's the morrison cagers which is pretty darn close to the line i think morrison said hey this is a pretty thin case because i find myself saying well ok well maybe i'm not agree then i i find myself saying this whole movement thing is all highly relevant to what officers could do to protect themselves seizing grabbing them all that stuff no doubt i just i'm just not sure what it adds to it i want  has possession of the seat belt i mean your whole conclusion is it's not like he let go of it i mean he still you say he's reaching for something when he's hands are still on the seat belt ok and so  in your view is a pretext to get your hands exactly that he didn't want you to the pretext told me he didn't launch into that he was told to undo the seat belt he was told to undo the seat belt and to keep his hands inside let's put it this way when was the last time you unleashed the seatbelt by pushing it and just going like this this is not what you do no one just lets it leak while you let it you unbuckle it and you bring it over now that your whole point is he does it slowly your whole point is he does it slowly right no of what the police are asking him telling him to do many times over it's an extremely tense situation so it seems like it's pretty darned deliberate now even if you let's turn to every direction i mean you're being a little bit of a government lawyer there  who shot about five cops and everybody's yelling at you you're going to move slowly it does strike me that people are moved slowly when they're being yelled at they didn't have any they have no problem with the driver yeah  to prove my theory let me ask you yes please i want to ask a question at the ammunition if i absolutely if we you know say so you the agent testifies that the round was made in russia because of the stand and the defense points out that the stamp is only just a component your response is that the agent also said these are cheap rounds and it's unlikely that somebody would reload these as opposed to just buying new ones all of that is almost entirely a correct reflection of the record i would make two amendments to the testimony which is only takes up three pages so  the agent didn't say i believe these rounds are manufactured in russia because of the case in he said straightforwardly after being qualified to give an opinion that his view was that these rounds were manufactured in russia the possibility of that he had been reloaded it was just the right line of attack on cross the only other point i would make is that on redirect it wasn't simply that he explained the cost but also that the first question right off the bat was in his experience he'd never seen war reloaded so i guess my question is the testimony about never seen wolf reloaded it because it would be asserted cost foolish to reload these things that's enough for a jury find beyond a reasonable doubt that it wasn't reload yeah the jury could use it's common sense that this agent who sees this stuff all the time has all this experience has never seen it wouldn't make sense cost wise to do it and no evidence that  actually was done but that would be sufficient evidence to find that those particular rounds had in fact been manufacturing russia as the agent testified so i that's my question  i would just like to add a couple points on that since we are are discussing and i do think that you can't make a constructive amendment claim without having the jury instructions i think that that that point was made in our brief and i want to stand by that i don't see how you could say that the defendant that that's a four is not a form of forfeiture point yes ok so i mean i would have thought that if that's true and i'm not sure what it buys the government because i would have thought what would happen is for us that one thinks that to the extent that one thinks that a constructive amendment would require reversal that would not be the case under a plane air or standard if it without the  instructions oh i'm sorry i don't i thought the point you were making is you can't do this if you don't go through the trouble of putting the jury instructions in the record and then explaining how this misfire right ok so then i guess i would say maybe i should put it in terms of waiver it's a waiver in litigation in terms of at the appellate level that we've got no argument about what the journals for that waiver when it's waivers knowing you know what's in front of you it's waiver is at the trial level the judge asked you directly are you go anything about this and you say no that's waiver seems very much like forfeiture it's a forfeiture if you don't object at the trial level to the jury instructions and i don't think that there was any objection raised but what's your case that says if you don't put your instruct your instructions in this kind of a variance setting it amounts to a waiver well no i would just say that it's in the nature of the articulation of the test itself that the what a constructive amendment is when the nature of the evidence and the jury instructions authorize conviction on and for something other than what was charged if we don't know what the jury instructions were and there's no way to say that the jury instructions authorized conviction for something else there's all these arguments that might be i might be batting back and forth with friend you have one of you it either is a failure to adequately preserve the record for the appellate court or you could view it just simply  start to go down that road then the only way to deal with this though is to go back and get the instructions to figure out how to work on the contrary the way to deal with it is to say that if there was a if were which we can remedy in which case it might be your future your bootstrapping the forfeitures i think i mean i think you're right if you can call it a waiver i think that's pretty extraordinary that you could give it that label you're right if it's a waiver and a story but if it's a forfeiture i of course they don't have a record that's the whole point they neglected to do this and of course that means not only do you not accomplish anything on direct review because we have to send it back to you comp you can last when it comes to twenty three fifty five i guess the trouble that i was trying to avoid in part was getting into a discussion about whether we have to say that chamber's is right or wrong what we have to distinguish chambers in this case whether chambers all that stuff about whether a constructive amendment mandates reversal is actually an accurate statement of the law as it currently exists and so i'm looking for a way to make the courts life easier for perhaps i'm making it harder and i should just what i wanted to ask you about is i have looked in light of this most recent discussion i've looked back at the constructive argument in your brain and it appears to me that it's really a repackage which i'll admit does invite consideration to restore but you don't have a constructive amendment argument unless sure if i understand the argument unless your argument is correct that the government somehow failed to carry it burden of proof with respect to the ammunition back only proving that the casings bore the stamp that would indicate a manufacturer in russia is that right that is correct or are ok and no it's indicative that the shell king well and or put another wise the evidence presented at trial was insufficient to prove the charge in the indictment because the government somehow had to prove that each component of the ammunition and then put what happened in that fit circuit case though was a constructive whatever right amendment that is true and that's the thing and the reason you're in this box is because actually just a component is ammunition and so if he had just had the casing he would have been guilty of this crime but you know so you can't just argues insufficiency outright instead you have to say well that's  one by instructions that were different if the evidence supports what was you were indicted for you would always say no prejudice so it's always sufficiency isn't it well i disagree you're in the sense that chamber says you know  the casing traveled in interstate commerce that is not proof of this crime it was just not what was charged there that is correct that would have the government charge properly this is if you would not  know well we appreciate you very much the argument you've both given will consider the case carefully mr cascio we're particularly grateful that you accepted the appointment in this case under the criminal justice sac and we're  appreciative of your advocacy on behalf of mr walker and i think that that