showed him approaching their vehicle and turning in a key that contained a firearm based on this evidence johnson sought to with to argue his innocence and question not only with the denied but the court gave an anti innocent confession defense by instructing the jury that well considered as a whole and they were wrong of the law not only because they omitted an entire element of the offense charging that the government must prove knowledge of that it but the core provided an unprecedented instruction that well meaning possession is not a defense to this charge and we haven't found a single case giving this charger up holding the charge and not only was the innocent possession defense charge request that was  gated prior to the trial denied but the charge that well meaning possession it's not as if and removed the enter from the equation it took away the jurors ability to acquit mr johnson based on a lack of knowledge definition of knowledge traditionally excludes conduct that is done mistakenly accidentally or for other innocent reason why what the juror you consider what it says you think you  i think yes your honor the jury the jurors could have considered mr johnson's behavior as mistaken or unknowingly done because he's doing something or we he they could have decided based he did not know the law or his status because they were not charged on that but they certainly could have deliberated have they been instructed correctly they  they would have acquitted based on lack of knowledge about it because there's no evidence in the record on that and the innocent the well meaning possession charge contradicts the rahane case that explains that nine hundred and twenty two dollars g b is not intended to apply to definition of knowingly does include some consideration the jurors can consider whether the behaviors were mistaken and acted that don't work for other innocent reason that's the definition of knowingly so it does the text alone does allow for some inquiry by the jury and consideration as to all of those things i think it's a great area it's not a bright line as the government argued and the charge the charge and tail of the charge why don't you want your argument this is a judge livingston the use of the well meaning possession language so confusion in two different ways one on the rehab issue whether knowing status and one on the just sort of just broader issue of mistaken you know if you knowingly mistakenly possess a weapon that you don't realize you're possessing that could be taken by the jury to be a form of well meaning possession that's correct your honor  and it went beyond just not giving an innocent possession instruction it undermines the actual element that the government is required to prove and thereby lessen the government's burden of proof and it was computing and it was wrong  and it wasn't harmless the government cannot prove beyond a reasonable doubt that there are rational during what had found johnson guilty absent the error and turning to the sufficient p of the evidence that should be reviewed to noble and  again the judge livingston but the was this help me understand whether this year was in fact preserved i mean i understand from the record he made a rule twenty nine dollars motions that he didn't renew it at the close of all the evidence so wouldn't you receive plainer review didn't raise the question of how the lack of notice affected that defendant casey johnson was not on notice of the elements of the offense and due process required that the defendant received notice of the crime so that he may pursue defenses based on the crime itself he wasn't given notice of an entire element of the charge and couldn't person defenses based on possible mental state or any other subject reasons and i believe the fairness integrity and public reputation of the proceedings is harmed by this and i believe that even the plain error analysis should go in johnson's favor here and turning to this record i mean based on what we've said about it i realize we haven't decided on it but we clearly of if it exists it's limited to very narrow circumstances and the evidence in the record is that he found he said he told the police they found the gun in some bushes someone and given it to him but critically that he'd acquired a day or two ago that's what the police testified that he told them that after after their encounter  jury charge i believe he would he is entitled to it as well based on the fact just the fact alone that he approached a police car and said i'm turning in a weapon that is enough to show his  well meaning state of mind and for the jury to determine lines of united states in a sense that the firearm with a pain in it in a sent me and i held the no illicit purpose and possession was transitory and that is in light of the circumstances presented there is a good basis to find the defendant took meaning possession obstruct instruction but didn't object to the st two sentences that preceded it which the defendant conceded were appropriate and those sentences related to the instruction that motive was not an element of the offense and that the government was not required to prove or disprove that the defendant possessed the firearm with any particular purpose or reason having conceded that those were proper the defendant can't show that the well meaning possession struction cause any additional error or prejudice and given the facts and circumstances of this case in which the defendant essentially argued the defendant's good intentions in possessing the firearm throughout the opening statement into the nation  it was necessary amplification to ensure that the jury was aware that what the defendant was really seeking to do there was no occasion right to argue that the jury should have quit the defendant on the basis that wasn't  the police officers down there in their patrol car the police officers did not characterize it that way when they testified and they rejected when defense counsel cross examine them and whether they would characterize it as being flagged down they stated the baby observed him on the street corner making a larger hand movement and appeared agitated they pulled over to ask him if they could help him and they noticed that he was carrying a gun case that was marked gun guard and at that point he said to them i have a gun and one of the officers the innocent possession the objection to the dealer to give an innocent possession instruction was and wasn't preserved and i'm having difficulty understanding that because judge mascot did just the nativity rule that if he testified consistent with his affidavit she was going to decline to instruct  and when it came when the case was chant transferred the judge as rack and help me if i'm misunderstanding or misremembering the record she at one point affirms that the judge mask up its rules on the innocent possession defense and the government agrees judge ruled on it she did rule on it so in those circumstances why would there be an obligation to raise it again at the charge conference i think for two reasons your honor st when judge mascot issued the ruling she stated that she direct and i think that's a slightly different scenario are walking down you know defendant says i'm walking down the street with my buddy i realize he has a gun and i ask him what he's going to do it he says i'm going down the street and shoot in possession i think in those circumstances your honor i think that's a scenario in which there is in the potential necessity defense right because the actions that the defendant in that scenario is taking are to protect the protect the life of another from an imminent risk of harm but that isn't that isn't the scenario that we're presented with here and the innocent possession defense that's been advocated by the defendant in this case and in others it is a broader to say it is a defense that allows someone to just pick up a gun on the off the ground and take it and take it somewhere else and it doesn't require them to take sort of immediate action to protect life of another and expands upon their ability and essentially forces according to an inquiry about their motives and firearm he could have used back gun to call the police and summon them to the place in which he found the firearm but he did not do so in this case there were sort of there were different reasons that were given to the police officer and different explanations were given to the police officers by the defendant as to where you found the gun when he had found that he was equivocal and in those circumstances in particular i don't think we're talking about some of the other concerns that have animated for example t necessary i'm wondering what your response was call it does not already held was that in addition to knowledge of the possession that the defendant must also have knowledge of this status as a prior f five is not to the contrary and that the decision be dependent had objected at trial position see the evidence to establish the element of interstate transfer and then on appeal explained how the government's failure had failed he didn't know what flag to met the video clearly shows mr johnson approaching the police car defense the defense was allowed to argue based on the fact at trial which w intend to criminalize those who make innocent mistakes the penalty scheme is just too too high and whether and it's a mistake extends from a lack of knowledge court clearly over that by telling the jury that well meaning possession is not a defense in quoting lawrence johnson who flagged a police car down to turn in a firearm out he was encouraged to under the new york but he got an amnesty program should not be found guilty of ny twenty two shey and his conviction should be reversed thank you your honor thank you both very nicely argued and we will take the matter under advisement the next case on