can down the line through a brief st issue is the claim of evidentiary error and on these issues the parties dispute both the standard of review and the merits and with the court's permission i would prefer to dive straight into the merits based frankly on our view that mr to has to get relief under either standard of review to begin the government has conceded that started carson testified in non responsive in narrative fashion and so i would ask the court to find those errors uncontested and established other also important errors because they struck at the heart of intent and in particular that in one of his narrative non responsive answers is when sergeant carson testified on the ultimate issue in the case between the parties is whether or not this testimony constituted lay opinion under seventy one or expert opinion or seventy two and we've asked the court to rule in our favor and two bases number one is judicial stoppel on the ground that the government conceded below it when it was arguing about detective door that drug trafficking modus operandi evidence is as long been expert testimony number two is that based on that same case law for decades this court has held that modus operandi testimony and drug case is expert testimony and so one thing i'm wondering about it with expert testimony these people were never qualified it's experts true so we have the four iran sorry what that they would have qualified as experts anyway i'm less certain from the record about the other officer but there's a good chance that they would have qualified as experts anyway so i'm not sure so what we do have would have but they didn't but they didn't  n my recollection as i've seen it denied on the basis that they would have qualified as experts anyway so it's harmless but in this case what happened was they ended up testifying in a dual capacity hybrid fact and expert without any cautionary instructions guiding the jury about how to handle the judge trial and i believe it was the toral the case forgive me if i got the case wrong caution against that we have all been participate in a criminal justice system for a long time and we've seen in many of these cases and we know that you know made of carbon paper means drug trafficking or certain quantities mean drug trafficking and these things indicate drug trafficking but the court the case law in cautions us against jumping into the shoes of the jurors with that mindset and instead to put ourselves in the shoes of a lay person that is receiving testimony within the confines of an american courtroom and one of the duly qualified experts said yet this these patterns indicate to me drug trafficking but then what the jury heard and there were reasons not to believe him you know he had no involvement in the case and he just review few reports and he got on the stand in the rift off about this that nothing and he had a really testy exchange with defense counsel and maybe the jurors would have disliked him we don't know but then three other investigating officers including the sergeant who was  involved the cooperating witness took the stand and they corroborated him and they said the same thing so over and over and over again throughout this here at trial it was saturated with this idea of this evidence indicates drug trafficking it indicates drug trafficking indicates drug trafficking so they heard from four officers and we know from the case i'm from common sense that officers or take they take the witness stand with him from a tour of reliability and believability and jurors are inclined to trust law enforcement officers and so at a bare minimum of asking us to take this issue into consideration as far as part of acumen a very analysis moving on if i could to the nd issue which is a special verdict form here again to the government's credit it has conceded the error regarding mens rea and so if i could also move on then to the instructional  which we framed in two ways and with the time i have like to focus if i could on specific unanimity i think this case presents a pretty straightforward application of leap year case both cases involve a question of genuine possibility of you're just sort of making up that they could have thought there was some other conspiracy but no one ever brought up or any other conspiracy or any other person you know it was actually trying to speak more to the specific you know limited to the other issue cheri instruction question  so if the jury instruction if we view the special verdict form as essentially supervening what was the construct and correct construction right the instruction was correct the special  was wrong right well think back about with instructions said about quantity i'm sorry what i had to think back about what the instructions specifically said about quantity i don't i don't remember the instruction saying anything about no imposition i could be wrong  pretty straightforward way that the jurors could have iranis they found reasonable foreseeability now this is about count two and count two focused on the apprehension in the malibu car contraband and what we have was the officers were chasing mr to hot on foot and claiming that they saw i'm throwing smaller quantities of drugs after this person was even recovered and compose for a photograph and they took to ensure that the jury that would have been of certainly plausible basis for the jury to find guilt on that count but what defense counsel was contesting at trial was no one possession with intent to distribute of all the drugs in particular in the car and this there was a large quantity of drugs in the wheel well underneath it and hidden from view except for a teeny little part of a plastic bag poking out and that to me screams out for reasonable foreseeability because if the jury if any of the jurors maybe had a reasonable doubt about whether or not those drugs which are just different in terms of not count him correct and that's the prejudice you're under because they could have found that the drugs in the trunk in the wheel well they were busy just poking out barely were reasonably foreseeable even if you didn't know they were there they could have fallen back on the safety net of saying well this it was reasonably foreseeable indictment so they had the instruction in front of them as well as a group for right and i want to check the box on the verdict form that's the one that was actually saying reasonably foreseeable so you know if i was a juror reading that i would see all the judge as i can find reasonable for civility even if it didn't as a cooperate or she told them she was trying to work off a fourteen year sentence she had pretty obviously lied about not having any idea there was a pound of methamphetamine covered in dust in her own closet and so i think it's quite reasonable for a juror one or more jurors in this case to have said to have thought to themselves you know what i just don't really like her i don't trust her i think she lied to us and i don't want to i don't want to get involved in the deprivation of a man's liberty based on what she said but on the other hand it's also quite possible that they weren't particularly impressive there was evidence in the trial record that mr hotta was involved with other people do it with drug distribution it wasn't as strong potentially as with johnson because nobody busy else took the stand but when this problem is ever been range with more people so it was really open ended and so a juror who dislike johnson and dislike mr to heart it could have said well he had a bunch of drugs in the car he didn't give to johnson so his daughter was somebody else the chorus registered to somebody else as judge fle pointed out and there was a text message evidence indicating that he was going to get heroin from somebody else if you believe if a jury believed that the text message was actually sent by mr hot so there is evidence of mr taha in this record conspiring with somebody else besides johnson who disliked johnson and just like to hollow could have found that he conspired with somebody else and that would have been entirely permissible under the conspiracy instruction which didn't kavin their discretion in any way to a specific person named in the indictment which would have been  six grams of methamphetamine in the trunk of the you know you so you need the you need the drugs in the trunk we absolutely need the drugs in the truck and so i'm not sure are and i get that he's running away i get that he's the wrong drugs obvious person those seem to be pretty clearly connected to him but he has at least a decent argument i didn't know about the drugs in the trunk this is not my car they're not visible or not very visible why is it not plausible and we actually believe that that supports our position and therefore they were looking carefully at the fact that he was a drug dealer in the vicinity of a lot of drugs just not persuaded that he was responsible for any drugs there or anywhere in the vicinity that's correct we reiterate there for with respect to these drugs had they not been told the reasonably forseeable erroneous instruction they might have been serious as they did on the other count carefully whether those particular drugs were attributable to him well tucker looks like the jury when it would could have very easily applied a reasonable foreseeability standard to the to the drugs the near pound of methamphetamine to mr johnson department certainly given all the evidence that mr to hate and mr johnson were conspiring to distribute drugs together it was certainly the arguably reasonably foreseeable that mr johnson would have a pound of methamphetamine near the attic in her bedroom and that mr mr to hate her would be criminally liable for that but the jury didn't do that which in that case the jury was very precise in its finding takling and therefore what they precisely considered what they were told and this instance which is they didn't have to find actual knowledge well there's a lot of evidence in the record where mr tate a didn't knowingly possess the drugs in the trucks but in addition to all of the his scene at the mischance of department of the time of the sale the tip from the officers that he would be returning with drugs the the text messages between mr johnson and mr haider where mr tate is quite clearly a business partner mischance and quite clearly supplies are with drugs and he's here but clearly he has a hand and non frivolous argument that he did not know write off the spread of the shoot here we said of the defect in the verdict form it did expand the mens rea from knowing possession to reasonably foreseeable possession but you don't you don't like to live with the consequence well we're i'm living the consequences right now so you're trying else in your office yes somebody is no longer with the office so therefore it seems to me you have a hard time saying that this testimony which you caught in as  expert testimony and therefore opinions that you couldn't have otherwise gotten and presumably could then also come in islay just money well you know this is the challenge before the court i think in this case on this issue in particular as we pointed out our brief it's a very thin line i think on many occasions how can it be laid chet's monye when somebody it's it's not just specifically not his perceptions he's sitting up there and he's saying because of things that happened  other cases and because of things i learned in my training and so on i and i understand what this is which i was just for my own perception is that what he's saying to extent we agree with the court that there is some degree of specialized knowledge that was present in the lay opinion testimony by the officers that there definitely is but under von willey as we read bond really understand it von willey gives the officers just a small amount of space to rely on their training and experience to testify on their direct perceptions which incorporates their prior training and experience and they can tell the jury that i saw this item and i think it indicates drug trafficking is a small window and this is the line that separates i think expert opinion under seven o two from les opinion under seventy one dollars but under van really what the trial attorney did in this case is acceptable and i'd like to point out we didn't point out in our brief but i would like to point out today that in the trial brief filed a few weeks before the trial the trial lawyer in our office did notify the court and the defendant of his intention of having the officers give lay opinion testimony in addition to the expert opinion that would come from detective door defendant on notice that it's coming but also put the judge on notice that it was and he in the trial attorney did cite the von willey case which we believe justifies what the trial attorney did in a trial the whether the prejudice well whether the admission of this lay pinion testimony which which he would deem improperly admitted would affect the defendants with substantial rights and did it affect the outcome of the case and given the overwhelming strength of the evidence given all the evidence in multiple locations in this case that the defendant mr de heda knowingly possessed narcotics with the intent to distribute them and conspired with mr johnson to possess them with the intent to distribute that i don't the case doesn't survive plane air and the decision goes to the government and the conviction should be affirmed as the courts acknowledged he was caught he threw down drugs as he ran and he was eventually caught with more drugs in his possession in booking so given all that given all the possession of drugs that is attributed to him it's linked far fetched to begin to argue that he didn't know about the drugs in the trunk of the wheel well to move on and continue on that point the when when the cop mr to heda he immediately began disavowing or kind of disconnecting himself from the mallet and our position is this was a consciousness of guilt in he trying to distance himself from the malibu we believe because he he knew from what distance himself from the malibu the court noted earlier the car was not registered to mr to haiti so technically it was not his car but mr johnson told the officers that that it was mr tate's car that he drove it off and that she saw him driv that he would be returning to her apartment in that car the gold malibu with drugs to give to her to sell and lo and behold there were drugs in the car there were hidden car she said he was in the car now it's not registered the cars are registered to him so technically it's not his car said that she said it was his car she said he's in the car and he's going to come back in her mind it's effectively her car his car because he drives a lot in she sees him drive a lot and she said it's his car yes yes yes i thought you said he's not you know he's going to come back in the car but i don't know so i think she goes further than that i think she communicates the officers that the car is his irrespective of the small detail was whether it's registered to him or not i don't quite remember that we do have the transcript where she says that i do not have it with me but my impression from reading the transcript is that she communicated to the officers that that's the car he drove it's one of two cars he drove for not precise not th circuit were not the case we don't expect mr johnson to be talking legal title necessarily correct yes so it kind of finally just about this point up the defendant when he was caught immediately began disconnecting himself from the malibu and we believe that he he did that because he knew there were drugs tucked away in the spare tire well that's a that's a pretty good argument i wish you'd had the right words in the verdict form you're right there's nothing verdict form is what it is there's nothing we can really say directly on that point but again he said i borrowed the car the car belong to somebody else i don't know who it belongs to and in our minds he knew the drugs were in the car because of that and the jury therefore had a lot of proof a lot of evidence on the record with which to correctly find him guilty of knowing possession and correctly determined that he knowingly  possessed more than fifty grams of methamphetamine which we as we mentioned need the trunk drugs to get to the fifty gram threshold my time is running low if there are no other questions then i'll be happy to sit down and you rest of my time with the court thank you thank you your hon as mr ted is she identified a ford taurus and it was actually officer adair who corrected her based on what he remembered seeing during the surveillance so the notion that mr johnson was super intimately familiar with this car and she knew that it was asked the judge said yeah i don't like it either and the government promised not to do it and the government did it three times with three different officers so to say that it's on preserved is untrue all it's also preserved under freeman kevin freeman and the ken freeman and was there any evidence and the preservation of that issue where he specifically asked to have no none of this hybrid dual role testimony which is an old and the government promised not to do it and the district or disapproved it important not to do it because they purported that this was not and they are still arguing that it wasn't expert testimony therefore it won't get that hyper testimony there was however testimony it was on authorize an uncommon unqualified protest court refused to apply plane or review because the defense lawyer made foundation speculation arguments which basically made the essence of the dual role test without using the word to roll or hybrid kevin freeman case