Legal Case Summary

Good morning, Your Honours and may it please the court. My name is Alan DiBwan. I represent the appellan in this case, Lionel Cox. This appeal presents three separate issues, each of which I believe is worthy of discussion, but I understand my time as limited, so I'm happy to focus my attention on whatever areas the court finds. Most interesting. But let me start off talking about the admission of the 404B evidence in this case. Mr. Cox was charged with possessing two guns during the course of two separate transactions involving the transfer of guns, that occurred on May 14th and June 27th of 2012. The government, however, devoted about half of its trial presentation, presiding evidence about a third transaction that occurred on May 21st, where there was no allegation that or no evidence at all that Mr. Cox possessed a gun at any point during that transaction. Now, the government tried to, purported to introduce this evidence pursuant to rule 404B, but this evidence served no proper 404B purpose. And perhaps implicitly, wrecking this 404B evidence. I mean, it's the, this third sale was sort of sandwiched equidistant between the, the, the, the May 12 sale was, May 21st sale was sandwiched equidistant almost between the, the first charged sale and the last charged sale. And so it could be almost, it's been seen as part of the continuous story. I hear that. Well, I mean, it's because normally when you are dealing with 404B evidence, you have the 404B evidence takes place well after the course of criminal conduct or it took place years before, temporarily, it's, it's distant, more distant. And, but this just seems right in the swim of things. Well, well, you're a few answers to that. First off, the government presented it as 404B evidence. That's how they presented it to the court

. That's the grounds on which the court introduced it or admitted it. And that's the ground that the jury was instructed on how to consider this evidence. The government, we don't need to, I mean, we're not bound by that. Well, I certainly think you, you should be your honor because the, the, the jury's told that evidence is, there to consider it evidence for a certain purpose. Yet the government says now for the first time on appeal, this is the first time that they've raised this issue. Normally those types of, those types of arguments are not considered for the first time on appeal. But can't we, if we agree with the outcome, aren't we free to affirm on any basis that appears in the record? I don't think so, Your Honor, because of the fact that this was not, this, these were not to equal basis for admission. 404B evidence serves one purpose, this sort of intrinsic evidence serves another purpose. But I would say even taken on its own terms. I was saying they did more than was necessary by, you know, going through all the 404B votes. No, no, no, they did, they did much less than is necessary because 404B, they're told this serves this purpose. You are no need for this ground. If they're not to consider for that ground, they shouldn't have been instructed that way. So, what do you need to give a limiting instruction for intrinsic evidence? Well, exactly, they did give a, you know, I think it's sort of a misnomer to call it a limiting instruction. It's certainly a cautionary instruction, but it tells the jury how they are to consider this evidence. If there weren't supposed to consider this evidence for this purpose, they shouldn't have been told that. But let me say this, even taken on its own terms, this was not intrinsic to the offense. The government in its brief says they're, oh, sorry. Well, let's assume that that was what I was going to ask

. And let's assume that it is an intrinsic. Let's assume that it is appropriately 404B. What, why is it objectionable then? Wasn't the question of whether or not Cox knowingly possessed firearms a disputed issue? It was the only disputed issue you're on. Right. And this is going through a similar issue. I'm sorry. No, I was going to say exactly the same thing. Well, because, and if I could speak to you for a second, I agree with you. It's not intrinsic evidence. I don't think it is of the crime's charge. But it goes directly to his knowledge. His defense was he was just a matchmaker. He was putting this, you know, a couple of people together. And this evidence shows that he was into the drug, excuse me, into the gun trade. He was negotiating a price of a gun. He was talking to people about guns. He knew what he, this shows guilty knowledge it seems to me. And his intent pretty much as clearly as any 404 type evidence would. Well, two answers, John

. First intent is not an element of 922G. Knowledge is, but... Well, knowledge and intent to the extent that he knew what was going on. Right. It's not specific intent. But intent, general intent, is always something that has to be established. There wasn't accident or mistake. That's a mistake, or something like that. But I think the argument that the government makes and you're converting to... conflates two different types of knowledge. There was no dispute in the record that Mr. Cox knew that these gun transactions were being brokered and that they were occurring. The only thing, I think this evidence might have been admissible, had Mr. Cox.

.. The only issue was the knowingness of his possession. During a transaction in which there was no allegation of possession, I simply don't think it logically follows that that can shed any light on whether or not on some other occasion involving some other guns Mr. Cox might have knowingly possessed him. Mr. Cox's defense was not that, oh, I had this gun, but I didn't know it was there. Or I had this gun, but I thought it was a toy. The only knowledge that this May 21st transaction goes to is his knowledge of whether these gun transactions were going on. And that might be very relevant if he had been charged with illicit transfer of a web. How would the government in your view be able to show constructive possession? There was no aspect of conspicuous possession on the May 21st transaction. I think the government, I think it's clear that that's the case. But it shows knowledge and it doesn't go to show knowledge as Judge Keenan pointed out and absence of mistake. He's not arguing that there was a mistake and it doesn't show the knowledge of knowing possession. It has absolutely nothing to do with possession. But it doesn't have to be crafted to his argument that that's not what 404B requires. But it does have to be crafted to the government's burden of proof and the elements of the offense. That he actually are constructively possessed gun. That's correct. And I think if you look at this record, there is nothing, nothing about the May 21st transaction that sheds any light onto the knowingness, constructive or otherwise of his possession

. Does his defense make it relevant? And I think your argument would be a lot stronger if he hadn't used this matchmaker defense. But essentially he's saying I'm an innocent broker. I'm just somebody who's putting A in touch with me. And it seems to me that that puts this in play. Well, you're on a, again, not to blame the point, but I simply don't see that connection. I see, I would definitely agree with you, Your Honor. If this was a case involving a charge of illegal transfer of a weapon, this would clearly be relevant. But this was not a case of illegal transfer. It was a case of illegal possession. And all this May 21st evidence shows, as your Honor points out, that there was a brokerage aspect. Now, of course, Mr. Cox doesn't contest that, but putting that aside, focusing on the government's burden of proof and the elements of the offense, there's nothing about that particular knowledge that this May 21st transaction sheds any light on whatsoever. It simply is put out there to show that he is the type of person, the type of bad person who would engage in these types of illicit transactions. And I think I would also point out the fact that this really was the tale that wagged the dog in this trial. The government spent almost half of its trial presentation on this one transaction, again, to emphasize the point where there was no allegation that Mr. Cox ever saw that gun, was ever touched that gun, was ever in the same room as that gun. Yet, they went through this entire inter-rinable discussion and description of how this came, he was going to the Walmart, then he's not going to the Walmart. None of which involved Mr. Cox

. And at one point, the district court even says, we are getting way far afield here. This is almost incomprehensible given the convoluted manner in which you're trying to present it and the way in which the witness was speaking. So I think the danger or the prejudice suffered by Mr. Cox in this case is exactly I think the danger that I'm worried that this, you know, that I'm not dispelling, which is the jury is focused on the wrong thing. The government makes this appear as if this is a case about illegal gun transfer, illegal gun transaction. Well, you know what we do is we, I mean, these are trial court calls on these evidentiary matters and, and in this case, even if it's not intrinsic evidence, temporarily it's very close. And it's taking all of these things are taking place at express loop. And in this individual is dependent on is mastermind and everything and provide providing a settler with the buyer's number and telling, you know, telling people where to, where to park. And he's essentially directed what's going to happen with the firearm, you know, without his, without his involvement, the firearm would, would never move. He's, he's directing the movement of the firearm. I agree, Your Honor, but that's not what he was charged with. That's not, that wasn't the crime that he was charged with. He could direct the firearm as much as he wants, as long as he doesn't actively or constructively possess it. And that's exactly what happened on the, on the May 21st transaction. He never actually goes to, it goes to his knowledge on the other two say his knowledge of what is what I would ask the court, his knowledge of what that is going to the state of a firearm buyer convicted fellow. And again, these are 922 G offenses. He's pleading not guilty, which he has every right to do the case is going before jury. He's pleading lack of knowledge. He can't very well put that he's not a felon

. He's just saying, I didn't know. And this goes to refute the fact that he didn't know he was not, he's not an innocent. It's knowing possession. That's correct, Your Honor. And I would say that, you know, again, the May 21st has nothing to do with whether or not he knew he was possessing a firearm. But I would like to, I see my time is slipping. But that's a matter of weight, really, more than admissibility. I mean, Your Honor, I would disagree because I don't think it's relevant or necessary to an element of the offense, which is the test that this court set up. But if I could, I'd like to turn briefly to the issue about the jury instruction on the Aiding Abedding issue. Mr. Cox requested an instruction that the jury be told that in order to convict him as an AIDR in a better, he specifically needed to know that his co-definite naval war was a felon. The district court declined to give this instruction. However, he was entitled to it because this was a correct, though non-obvious statement of the law that the jury wouldn't necessarily come to on its own absent instruction. The third circadian Xavier spoke directly to this when they said, the jury cannot have been expected to make a finding beyond reasonable doubt as to the defendant's brother status as a felon in the absence of an instruction to do so. And they found the other circuits that go the other way. There's one other circuit that goes the other way, and that case was called into question by subsequent cases of the ninth circuit. Well, I've seen to me there were two circuits that went the other way. There was a seventh circuit case that dealt with a related, though, not identical issue. And that was a case where the issue was slightly to the side because it was clear that the gun was used in connection with another offense that the defendant was well aware of

. But the actual instruction that was given, you know, it may not have been in the exact words that you wanted, but the district court's instruction said the defendant knew the crime was to be committed and knowingly did some act to further its commission. Now, the crime was the knowledgeable possession. I mean, it was aiding and abetting the knowledgeable possession of a firearm. So we're saying a new crime was to be committed. Well, how would you know a crime was going to be committed under an aiding and abetting theory? You would know that the principal was a felon because that's what makes the possession illegal. So, you know, I'm not sure we even need to reach this circuit split because the instruction substantially gave you what you asked for. Well, that's a very important point. I think you do need to reach the circuit slip because if you look at the instruction that was given in the canon case, which is the ninth circuit case that held the defendant did not have to specifically though. They gave the exact same general instruction that this court did here. Could you incorporate India response kind of as a threshold matter? What you contend is the standard of review of the jury instruction issue. But as a threshold matter in responding to judge will continue to question does that make sense? I think this issue was preserved. We requested the instruction. You don't think it's planar or in other words you think you think we think we think we think we went under either standard and Xavier found it was. In fact, planar or not to give this but we think it was requested and then requested during the charge conference and not given. But to answer judge Wilkinson's question specifically in a way the government is trying to have it both ways by saying, oh, well, you know, the law is not clear on this so we didn't have to instruct. But then they say, but this instruction was so clear that the jury would have gotten it anyway. Well, the flaw in that argument I think is that the canon case which held that the jury need not be formally instructed about this point. And looked identical to the instruction given here and what that means is that based on the instruction given a jury could reasonably conclude either that the defendant had to know that his principal was a felon or that he didn't have to know there was a felony that this. This point needed to be addressed by the district court given the very

. An obviousness of the. I know that a crime was going to be committed if he wasn't aware that the principal was a felon well that's what the nine circuit has held I mean that. But I don't know, but I'm still perplex because. You know, we can we can quibble about the meaning, but he is we're talking here about an eating and a betting theory and we're talking about the. The knowledge that a crime was going to be committed the instruction given by the district court said the district the defendant knew a crime was going to be committed and knowingly set out to further its commission so there's a center element and the men's Ray element clearly in these instructions. And I don't see how you could know that a crime was going to take place unless you knew the principal was a felon because that was what that fact was what was what differentiated the innocent possession of guns from the criminal possession of gun. I think that's correct and I think I think as a matter of law you're absolutely correct that's the position we're arguing is that he needed to know our point is that that is not something that a jury would necessarily take from this general jury instruction that's what the third circuit held in Xavier that's what the six circuit held in garner that this is not something that so intuitively obvious that the jury should not be instructed on it. I think that conclusion is bolstered by the fact that the ninth circuit which doesn't. Subscribe to that theory gives the exact same instruction the instruction is opaque as to the knowledge of whether as to the requirement whether the defendant must know the principal is a felon and that's why in this case the jury needed to be instructed on it. I see my time is up but I. Judge Keenan had a question to do. I was in the room. Thank you. Thank you. Sure. Good morning. May it please the court. I'm Shalke Shah here on behalf of the United States. Now we spent the defendant has spent a lot of time talking about the four or four B evidence issue and the jury instructions

. I'd like to first start talking about the issue related to the jury instructions and that's because I want to first go to a threshold matter before we're talking about whether or not the instructions were sufficient whether or not they cover the instruction. The fact of the matter here is that if you look to the full dialogue before the district court. Regarding this aiding and about the instruction you see that the defendant was faced with competing interest and therefore made the strategic and tactical decision to abandon his request for a jury instruction that the defendant was required to have knowledge that never bored was a felon. And if I can walk the state is wave. Yes, Your Honor. I'm arguing that it's it was something that they did raise it was in their proposed jury instructions as the discussion progress. Plane error issue rather than a waiver. Well, Your Honor, I think there are two separate pieces to it and we're not talking about their failure to object to it before the district court which would then would be a plain error issue. But here what we're talking about is the defendant completely abandoning that request and making the strategic and into how are you saying he abandoned the request other than the fact he failed to object. Well, Your Honor, in this case he actually did raise it as part of the dialogue about the jury instructions. He didn't necessarily fail to object because he did ask the court to include this instruction. Well, Your position it seems to me you're arguing a distinction without a difference in this case because if it's if it's plain error. Then you win because there's a circuit split. There's no controlling precedent here. And if it's waived, you win. So why are we arguing this? I mean, isn't isn't the real issue here? Oh, it seems to me whether this is a plain error situation. Well, I think you're right. Your Honor and your characterization that if it is subject to plain error review, we would win. I think that they're okay. Is there a substantial injustice here involving this case? No, Your Honor. No, there's not. And the reason is the instructions that were given covered what the defendant was requesting. Now, we've all talked about this circuit split. Yes, there is a circuit split as to whether or not it aiding and abetting felon in position. And the reason why it was a misuse of a firearm requires knowledge that that individual was a felon. Now, I'm inclined to agree with Judge Wilkinson that it might require that. And it seemed like the district court here was inclined to agree with that as well. And that's because she aired on the side of caution and included in her instructions a requirement that there be that sort of intentional act in furtherance of the commission of the felon in possession of firearm, which required the knowledge that individual would be a felon. But how would a jury know that from that instruction? Well, I mean, it's really kind of abstract, isn't it? It is so much more abstract to say your charge at the jury. The defendant had to have knowledge of what was going on rather than to say the defendant had to know or have caused to believe, I think, as some of the other circuits say that the. The defendant was a convicted, the co-defendant was a convicted felon. I mean, one is very abstract and one is very concrete. And why wasn't he entitled to the concrete one? Well, your honor here. I believe the jury and the district court's jury instructions were clear. She talked about them in three different ways. First, she started. I guess I want to be clear myself. I'm not saying they were erroneous

. Is there a substantial injustice here involving this case? No, Your Honor. No, there's not. And the reason is the instructions that were given covered what the defendant was requesting. Now, we've all talked about this circuit split. Yes, there is a circuit split as to whether or not it aiding and abetting felon in position. And the reason why it was a misuse of a firearm requires knowledge that that individual was a felon. Now, I'm inclined to agree with Judge Wilkinson that it might require that. And it seemed like the district court here was inclined to agree with that as well. And that's because she aired on the side of caution and included in her instructions a requirement that there be that sort of intentional act in furtherance of the commission of the felon in possession of firearm, which required the knowledge that individual would be a felon. But how would a jury know that from that instruction? Well, I mean, it's really kind of abstract, isn't it? It is so much more abstract to say your charge at the jury. The defendant had to have knowledge of what was going on rather than to say the defendant had to know or have caused to believe, I think, as some of the other circuits say that the. The defendant was a convicted, the co-defendant was a convicted felon. I mean, one is very abstract and one is very concrete. And why wasn't he entitled to the concrete one? Well, your honor here. I believe the jury and the district court's jury instructions were clear. She talked about them in three different ways. First, she started. I guess I want to be clear myself. I'm not saying they were erroneous. I mean, I think they were absolutely fine, except why wasn't he entitled to more? I don't think more was necessary. If you look to the dialogue regarding the jury instructions, where the defendant asked that the instruction be given that the defendant had the government had to prove that the defendant had knowledge that word was the felon. The government council then responded and said, I believe that's already covered by the instructions and referred to the specific page numbers. Those instructions were asked to counsel one and two. The government must prove that the defendant knew the crime charge was to be committed or was being committed. And so on and continued beyond that. At that point, the defendant did not say that he did not agree, but then instead agreed, okay, we don't need it. Essentially, conceding that those instructions. He just said nothing. Well, he didn't say immediately, yes, but later in that discussion, he did. Where did he say we don't need it? It's on joint impetics. I believe the discussion starts at 273. So I believe it's on page 275 where the defense council comes in and says, I'm looking at all these. We've now talked about three different jury instructions all relating to Neville Ward. First, we're going to instruct that his, the evidence that he pled guilty to counsel one and two cannot be used as evidence of guilt of the defendant. However, it is relevant to eating and abetting. But then they asked for the instruction about knowledge and he pulled back. Defense council pulled back and said, we're going to confuse the jury with all these different instructions. I, I shared judge Kenan's, I think, perplexity is to why you are making this argument

. I mean, I think they were absolutely fine, except why wasn't he entitled to more? I don't think more was necessary. If you look to the dialogue regarding the jury instructions, where the defendant asked that the instruction be given that the defendant had the government had to prove that the defendant had knowledge that word was the felon. The government council then responded and said, I believe that's already covered by the instructions and referred to the specific page numbers. Those instructions were asked to counsel one and two. The government must prove that the defendant knew the crime charge was to be committed or was being committed. And so on and continued beyond that. At that point, the defendant did not say that he did not agree, but then instead agreed, okay, we don't need it. Essentially, conceding that those instructions. He just said nothing. Well, he didn't say immediately, yes, but later in that discussion, he did. Where did he say we don't need it? It's on joint impetics. I believe the discussion starts at 273. So I believe it's on page 275 where the defense council comes in and says, I'm looking at all these. We've now talked about three different jury instructions all relating to Neville Ward. First, we're going to instruct that his, the evidence that he pled guilty to counsel one and two cannot be used as evidence of guilt of the defendant. However, it is relevant to eating and abetting. But then they asked for the instruction about knowledge and he pulled back. Defense council pulled back and said, we're going to confuse the jury with all these different instructions. I, I shared judge Kenan's, I think, perplexity is to why you are making this argument. Why, why does it matter? You, why, you almost seem to be resisting the notion that it's plain error. I realize that you argued for waiver in your brief, but is this really the best use of your time? It appears not your honor. Now, I don't want to cut Judge Kenan's question, but I really don't, I'm not quite seeing how, how it advantages you to argue that it's waiver as opposed to plain error. Yes, Your Honor. I, I have to agree with you that it might be better to argue plain error, but I still think that that dialogue is relevant to Judge Kenan's question of was a jury entitled to the more specific instruction. And at this point, you see this dialogue between the court where the defense council then said, we were running the risk of confusing the jury by including what we've identified as what would be maybe a more specific instruction. And instead, both parties agreed to argue that in their closing and agreed that the instruction has given would be better to cover what, to cover this knowledge requirement in the intent and mensuray report. And I did not meet the cutoff Judge Kenan's. Oh, not at all. No, no. I mean, that's where I started out, too. Why are we arguing about the distinction from your position? Your Honor, I wanted to also discuss the 404B issue and the defense council has argued that it's not relevant to any element of the offense. Well, let's start out with, do you believe it's intrinsic or extrinsic or and do you believe it makes it makes a difference to the analysis and ultimate disposition of the issue? Well, I'd argue that it's intrinsic and the reason for that is that this offense, the evidence of the May 21st transaction occurred within one week of the first of the offense conduct charge and count one of the indictment. It occurred within the six week period between counts one, the offense conduct for counts one and counts two. The offense itself, all three offenses are all three instances involved the defendant initiating the sale of a firearm. All three offenses took place at the defendant's place of employment. There were distinct similarities between these such that they were inextric, the events on May 21st were inextricably intertwined with the charge conduct. Therefore, I would argue that it is intrinsic to the offense. I think the government was exercising precaution in introducing this as a 404B of evidence, which required further required the government to demonstrate that it was relevant to something beyond propensity, that it was relevant to knowledge, it was relevant to a common schema or plan, it was relevant to his absence of the mistake

. Why, why does it matter? You, why, you almost seem to be resisting the notion that it's plain error. I realize that you argued for waiver in your brief, but is this really the best use of your time? It appears not your honor. Now, I don't want to cut Judge Kenan's question, but I really don't, I'm not quite seeing how, how it advantages you to argue that it's waiver as opposed to plain error. Yes, Your Honor. I, I have to agree with you that it might be better to argue plain error, but I still think that that dialogue is relevant to Judge Kenan's question of was a jury entitled to the more specific instruction. And at this point, you see this dialogue between the court where the defense council then said, we were running the risk of confusing the jury by including what we've identified as what would be maybe a more specific instruction. And instead, both parties agreed to argue that in their closing and agreed that the instruction has given would be better to cover what, to cover this knowledge requirement in the intent and mensuray report. And I did not meet the cutoff Judge Kenan's. Oh, not at all. No, no. I mean, that's where I started out, too. Why are we arguing about the distinction from your position? Your Honor, I wanted to also discuss the 404B issue and the defense council has argued that it's not relevant to any element of the offense. Well, let's start out with, do you believe it's intrinsic or extrinsic or and do you believe it makes it makes a difference to the analysis and ultimate disposition of the issue? Well, I'd argue that it's intrinsic and the reason for that is that this offense, the evidence of the May 21st transaction occurred within one week of the first of the offense conduct charge and count one of the indictment. It occurred within the six week period between counts one, the offense conduct for counts one and counts two. The offense itself, all three offenses are all three instances involved the defendant initiating the sale of a firearm. All three offenses took place at the defendant's place of employment. There were distinct similarities between these such that they were inextric, the events on May 21st were inextricably intertwined with the charge conduct. Therefore, I would argue that it is intrinsic to the offense. I think the government was exercising precaution in introducing this as a 404B of evidence, which required further required the government to demonstrate that it was relevant to something beyond propensity, that it was relevant to knowledge, it was relevant to a common schema or plan, it was relevant to his absence of the mistake. And also required the district court to offer a limiting instruction, which the district court did offer not once but twice and offered it dirt when the evidence was introduced and again in the jury instructions. Now, the May 21st defense, I just don't get how you say that's intrinsic because you got a different transaction on a different day to different principle, different firearms. And we've said that in order to qualify as extrinsic, the acted issue must be inextricably intertwined with the charge act or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charge. You don't have that here. Well, your honor here, I think because of the similar area of events and because the sequence of times and the temporal proximity we argue that it was even. Please use the lady analysis and tell me how this is intrinsic. Well, your honor, if I think we make an alternative argument and I think this is why we did introduce this as 404B evidence at trial was because there are certain limitations to whether or not this would be part of the exact of the same course of conduct. Arguably it is, but here I think as 404B evidence, it is evidence of knowledge intent, its evidence of absence of mistake, its evidence of plan. And I would like to direct the court's attention to the definition of knowledge that was offered in the jury instructions and that both parties agreed to. The district court advised that the jury that knowledge means that the defendant was conscious and aware of his action or a mission, realize what he was doing or what was happening around him and did not act because of ignorance, mistake or accident. And I think because of that specific definition that the events of this May 21st incident were specifically relevant under 404B to that intent requirement, that knowledge requirement for the defendant's conviction under felon in possession of a firearm. And you're not really, you're not conceding that it's not intrinsic because of the similarity of events in almost a continuum involving the same locale, the same buyer, etc. You're arguing in the alternative. Yes, Your Honor, it was an alternative argument and we recognize that that May 21st event, although part of that, part of that same sequence of events and there were distinct similarities, it wasn't a separate charge defense. And therefore we introduced us for a 404B evidence, understanding that that would come with the requisite limiting instructions and therefore the risk of prejudice or the risk of the jury misusing that information would be limited. Was it necessary for you to proceed under an aiding and a betting theory? Your Honor, in my review of this matter, I don't think that it was necessary and I think if you look- You're one I just go after this guy as a principal. And I think we did. Your Honor, I think we absolutely went after him as a principal. I think in our opening and closing arguments, it's clear that as to the May 14th incident, we were arguing that he actually physically possessed a firearm

. And also required the district court to offer a limiting instruction, which the district court did offer not once but twice and offered it dirt when the evidence was introduced and again in the jury instructions. Now, the May 21st defense, I just don't get how you say that's intrinsic because you got a different transaction on a different day to different principle, different firearms. And we've said that in order to qualify as extrinsic, the acted issue must be inextricably intertwined with the charge act or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charge. You don't have that here. Well, your honor here, I think because of the similar area of events and because the sequence of times and the temporal proximity we argue that it was even. Please use the lady analysis and tell me how this is intrinsic. Well, your honor, if I think we make an alternative argument and I think this is why we did introduce this as 404B evidence at trial was because there are certain limitations to whether or not this would be part of the exact of the same course of conduct. Arguably it is, but here I think as 404B evidence, it is evidence of knowledge intent, its evidence of absence of mistake, its evidence of plan. And I would like to direct the court's attention to the definition of knowledge that was offered in the jury instructions and that both parties agreed to. The district court advised that the jury that knowledge means that the defendant was conscious and aware of his action or a mission, realize what he was doing or what was happening around him and did not act because of ignorance, mistake or accident. And I think because of that specific definition that the events of this May 21st incident were specifically relevant under 404B to that intent requirement, that knowledge requirement for the defendant's conviction under felon in possession of a firearm. And you're not really, you're not conceding that it's not intrinsic because of the similarity of events in almost a continuum involving the same locale, the same buyer, etc. You're arguing in the alternative. Yes, Your Honor, it was an alternative argument and we recognize that that May 21st event, although part of that, part of that same sequence of events and there were distinct similarities, it wasn't a separate charge defense. And therefore we introduced us for a 404B evidence, understanding that that would come with the requisite limiting instructions and therefore the risk of prejudice or the risk of the jury misusing that information would be limited. Was it necessary for you to proceed under an aiding and a betting theory? Your Honor, in my review of this matter, I don't think that it was necessary and I think if you look- You're one I just go after this guy as a principal. And I think we did. Your Honor, I think we absolutely went after him as a principal. I think in our opening and closing arguments, it's clear that as to the May 14th incident, we were arguing that he actually physically possessed a firearm. Right. And you know, the jury found in your favor, I realize this is hindsight, but I was just wondering, you must have had some discussions about whether it was necessary to include those aiding in a betting count. So whether you were just going to head directly after him as a principal on a theory of constructive possession. Yes, Your Honor. And you know, I'm prepared to admit to the court today that I think it would have been clearer for us to have pursued specifically actual possession as to the May 14th and constructive possession as to the June 27th transaction and to have left the aiding and a betting out. I think the fact that both defendants were felons, they both possessed firearms that led us to indicted as aiding and a betting each other. However, I'm inclined to agree with the court that actual and constructive possession was the better way to or the better theories that under which this defendant could be found guilty. And additionally, I think in our closing and our opening arguments, the government council made that clear to the jury that those were the basis for guilt that it was pursuing. We argued actual physical possession as to May 14th. We argued diminishing control over the firearm and especially over the premises where the gun transaction occurred on June 27th. And those were the theories of liability that we pursued at trial. All right. Thank you. Thank you very much. Thank you very much. I'm seeing that there are no further questions from the panel. We argue that the defendant is not entitled to relief on his claims. Therefore, we ask that you affirm the judgment of the district court. Thank you

. Right. And you know, the jury found in your favor, I realize this is hindsight, but I was just wondering, you must have had some discussions about whether it was necessary to include those aiding in a betting count. So whether you were just going to head directly after him as a principal on a theory of constructive possession. Yes, Your Honor. And you know, I'm prepared to admit to the court today that I think it would have been clearer for us to have pursued specifically actual possession as to the May 14th and constructive possession as to the June 27th transaction and to have left the aiding and a betting out. I think the fact that both defendants were felons, they both possessed firearms that led us to indicted as aiding and a betting each other. However, I'm inclined to agree with the court that actual and constructive possession was the better way to or the better theories that under which this defendant could be found guilty. And additionally, I think in our closing and our opening arguments, the government council made that clear to the jury that those were the basis for guilt that it was pursuing. We argued actual physical possession as to May 14th. We argued diminishing control over the firearm and especially over the premises where the gun transaction occurred on June 27th. And those were the theories of liability that we pursued at trial. All right. Thank you. Thank you very much. Thank you very much. I'm seeing that there are no further questions from the panel. We argue that the defendant is not entitled to relief on his claims. Therefore, we ask that you affirm the judgment of the district court. Thank you. We thank you. Mr. Du Bois, you have some rebuttal time, sir. Thank you very much. A couple of things. I would, but the court's adults also like to briefly touch on the sentencing argument that I didn't have a chance to get to my first go round. But on rebuttal, I agree with Judge Keenan that the 404B evidence clearly fails the LID test. It wasn't part of a single episode. I didn't say it did. I asked you to do it. I think it's sort of hindsight to this point for the government now to package it as something other than what it was. I did say it didn't not really. You might. I take that back. As to the aiding and abetting instruction. I think that when you put it in your proposed during instructions, when you specifically during the charge conference requests the judge give your proposed instruction, you have preserved the issue. The district court at the close of the charge said, is there anything other than what has previously been discussed you would like to object to. I think it was fair to for the defendant to think at that point they had made their request the judge declined to give it. And therefore we are not on plane area

. We thank you. Mr. Du Bois, you have some rebuttal time, sir. Thank you very much. A couple of things. I would, but the court's adults also like to briefly touch on the sentencing argument that I didn't have a chance to get to my first go round. But on rebuttal, I agree with Judge Keenan that the 404B evidence clearly fails the LID test. It wasn't part of a single episode. I didn't say it did. I asked you to do it. I think it's sort of hindsight to this point for the government now to package it as something other than what it was. I did say it didn't not really. You might. I take that back. As to the aiding and abetting instruction. I think that when you put it in your proposed during instructions, when you specifically during the charge conference requests the judge give your proposed instruction, you have preserved the issue. The district court at the close of the charge said, is there anything other than what has previously been discussed you would like to object to. I think it was fair to for the defendant to think at that point they had made their request the judge declined to give it. And therefore we are not on plane area. If we're not on plane air, I think it's clear that this was a proper instruction on a non obvious issue. But I'm very closely contested. I think it's how you said under the third prong of allow your substantial rights were affected because. The instruction that you got may not have been ideal and you may have wanted to get it in a more specific form. But it gave you a hunk of what you wanted. I think that's right. You're on it, but we're not on we're not on plane area in our view that we did request it. We did request it at the charge conference and we didn't get it. I don't see how with that. That is not sufficient to preserve the air for review by this court. If I may speak just very briefly on the sensing issue because I think it's important. The court gave a two level increase based on Mr. Cox's the light's possession of three firearms. There's no evidence that he possessed the firearm on June. On May 21st either constructively or actually that was an air that. I mean, you know, the sentencing question is decided under proponderance. That's correct. That's the evidence that the government pointed to at the sentencing hearing to support that enhancement were two. One that Mr

. If we're not on plane air, I think it's clear that this was a proper instruction on a non obvious issue. But I'm very closely contested. I think it's how you said under the third prong of allow your substantial rights were affected because. The instruction that you got may not have been ideal and you may have wanted to get it in a more specific form. But it gave you a hunk of what you wanted. I think that's right. You're on it, but we're not on we're not on plane area in our view that we did request it. We did request it at the charge conference and we didn't get it. I don't see how with that. That is not sufficient to preserve the air for review by this court. If I may speak just very briefly on the sensing issue because I think it's important. The court gave a two level increase based on Mr. Cox's the light's possession of three firearms. There's no evidence that he possessed the firearm on June. On May 21st either constructively or actually that was an air that. I mean, you know, the sentencing question is decided under proponderance. That's correct. That's the evidence that the government pointed to at the sentencing hearing to support that enhancement were two. One that Mr. Cox had gotten money for that may 21st transaction. And second, they had helped Mr. Brunson obtain the gun. Both of those I think the government now it's in their brief were incorrect and were erroneous. Neither they were the government council at sensing was conflating one transaction with another. So there is in fact no evidence that that third gun was ever in Mr. Cox. We have to find that finding on the three firearms clearly erroneous. That's correct, John. It was clearly erroneous. And we notwithstanding also constructive possession counts for purposes of the enhancement. That's correct, John. But there's no evidence we would submit of constructive possession. Certainly none of actual. But Mr. Brunson testified it was my gun. I went out and got the gun. I controlled the gun at all times. Mr

. Cox had gotten money for that may 21st transaction. And second, they had helped Mr. Brunson obtain the gun. Both of those I think the government now it's in their brief were incorrect and were erroneous. Neither they were the government council at sensing was conflating one transaction with another. So there is in fact no evidence that that third gun was ever in Mr. Cox. We have to find that finding on the three firearms clearly erroneous. That's correct, John. It was clearly erroneous. And we notwithstanding also constructive possession counts for purposes of the enhancement. That's correct, John. But there's no evidence we would submit of constructive possession. Certainly none of actual. But Mr. Brunson testified it was my gun. I went out and got the gun. I controlled the gun at all times. Mr. Cox had no dominion control. But what about the district court statement that she was going to apply the same sentence no matter what? Well, that's very interesting because the judge said that she came to her sentence or departure sentence by way of the guidelines. And one thing that I'm taking myself for not including my reply brief that I noticed when I was preparing for argument today is the court said, I'm going from criminal history category three to criminal history category five based on offense level 24. That was the erroneous range. That's how she got to her range that gave her the 100-month sentence. Has she applied that same analysis going from the proper offense level 22 from criminal history category three to criminal history category four? She would have ended up with a different range that would not have supported a 100-month sentence. So given that error, we cannot presume that the court would have given the same sentence, absent the sentence in calculation error, which infected her later upper departure determination. Thank you, honor. We'll come down to greet council and just take a brief recess.

Good morning, Your Honours and may it please the court. My name is Alan DiBwan. I represent the appellan in this case, Lionel Cox. This appeal presents three separate issues, each of which I believe is worthy of discussion, but I understand my time as limited, so I'm happy to focus my attention on whatever areas the court finds. Most interesting. But let me start off talking about the admission of the 404B evidence in this case. Mr. Cox was charged with possessing two guns during the course of two separate transactions involving the transfer of guns, that occurred on May 14th and June 27th of 2012. The government, however, devoted about half of its trial presentation, presiding evidence about a third transaction that occurred on May 21st, where there was no allegation that or no evidence at all that Mr. Cox possessed a gun at any point during that transaction. Now, the government tried to, purported to introduce this evidence pursuant to rule 404B, but this evidence served no proper 404B purpose. And perhaps implicitly, wrecking this 404B evidence. I mean, it's the, this third sale was sort of sandwiched equidistant between the, the, the, the May 12 sale was, May 21st sale was sandwiched equidistant almost between the, the first charged sale and the last charged sale. And so it could be almost, it's been seen as part of the continuous story. I hear that. Well, I mean, it's because normally when you are dealing with 404B evidence, you have the 404B evidence takes place well after the course of criminal conduct or it took place years before, temporarily, it's, it's distant, more distant. And, but this just seems right in the swim of things. Well, well, you're a few answers to that. First off, the government presented it as 404B evidence. That's how they presented it to the court. That's the grounds on which the court introduced it or admitted it. And that's the ground that the jury was instructed on how to consider this evidence. The government, we don't need to, I mean, we're not bound by that. Well, I certainly think you, you should be your honor because the, the, the jury's told that evidence is, there to consider it evidence for a certain purpose. Yet the government says now for the first time on appeal, this is the first time that they've raised this issue. Normally those types of, those types of arguments are not considered for the first time on appeal. But can't we, if we agree with the outcome, aren't we free to affirm on any basis that appears in the record? I don't think so, Your Honor, because of the fact that this was not, this, these were not to equal basis for admission. 404B evidence serves one purpose, this sort of intrinsic evidence serves another purpose. But I would say even taken on its own terms. I was saying they did more than was necessary by, you know, going through all the 404B votes. No, no, no, they did, they did much less than is necessary because 404B, they're told this serves this purpose. You are no need for this ground. If they're not to consider for that ground, they shouldn't have been instructed that way. So, what do you need to give a limiting instruction for intrinsic evidence? Well, exactly, they did give a, you know, I think it's sort of a misnomer to call it a limiting instruction. It's certainly a cautionary instruction, but it tells the jury how they are to consider this evidence. If there weren't supposed to consider this evidence for this purpose, they shouldn't have been told that. But let me say this, even taken on its own terms, this was not intrinsic to the offense. The government in its brief says they're, oh, sorry. Well, let's assume that that was what I was going to ask. And let's assume that it is an intrinsic. Let's assume that it is appropriately 404B. What, why is it objectionable then? Wasn't the question of whether or not Cox knowingly possessed firearms a disputed issue? It was the only disputed issue you're on. Right. And this is going through a similar issue. I'm sorry. No, I was going to say exactly the same thing. Well, because, and if I could speak to you for a second, I agree with you. It's not intrinsic evidence. I don't think it is of the crime's charge. But it goes directly to his knowledge. His defense was he was just a matchmaker. He was putting this, you know, a couple of people together. And this evidence shows that he was into the drug, excuse me, into the gun trade. He was negotiating a price of a gun. He was talking to people about guns. He knew what he, this shows guilty knowledge it seems to me. And his intent pretty much as clearly as any 404 type evidence would. Well, two answers, John. First intent is not an element of 922G. Knowledge is, but... Well, knowledge and intent to the extent that he knew what was going on. Right. It's not specific intent. But intent, general intent, is always something that has to be established. There wasn't accident or mistake. That's a mistake, or something like that. But I think the argument that the government makes and you're converting to... conflates two different types of knowledge. There was no dispute in the record that Mr. Cox knew that these gun transactions were being brokered and that they were occurring. The only thing, I think this evidence might have been admissible, had Mr. Cox... The only issue was the knowingness of his possession. During a transaction in which there was no allegation of possession, I simply don't think it logically follows that that can shed any light on whether or not on some other occasion involving some other guns Mr. Cox might have knowingly possessed him. Mr. Cox's defense was not that, oh, I had this gun, but I didn't know it was there. Or I had this gun, but I thought it was a toy. The only knowledge that this May 21st transaction goes to is his knowledge of whether these gun transactions were going on. And that might be very relevant if he had been charged with illicit transfer of a web. How would the government in your view be able to show constructive possession? There was no aspect of conspicuous possession on the May 21st transaction. I think the government, I think it's clear that that's the case. But it shows knowledge and it doesn't go to show knowledge as Judge Keenan pointed out and absence of mistake. He's not arguing that there was a mistake and it doesn't show the knowledge of knowing possession. It has absolutely nothing to do with possession. But it doesn't have to be crafted to his argument that that's not what 404B requires. But it does have to be crafted to the government's burden of proof and the elements of the offense. That he actually are constructively possessed gun. That's correct. And I think if you look at this record, there is nothing, nothing about the May 21st transaction that sheds any light onto the knowingness, constructive or otherwise of his possession. Does his defense make it relevant? And I think your argument would be a lot stronger if he hadn't used this matchmaker defense. But essentially he's saying I'm an innocent broker. I'm just somebody who's putting A in touch with me. And it seems to me that that puts this in play. Well, you're on a, again, not to blame the point, but I simply don't see that connection. I see, I would definitely agree with you, Your Honor. If this was a case involving a charge of illegal transfer of a weapon, this would clearly be relevant. But this was not a case of illegal transfer. It was a case of illegal possession. And all this May 21st evidence shows, as your Honor points out, that there was a brokerage aspect. Now, of course, Mr. Cox doesn't contest that, but putting that aside, focusing on the government's burden of proof and the elements of the offense, there's nothing about that particular knowledge that this May 21st transaction sheds any light on whatsoever. It simply is put out there to show that he is the type of person, the type of bad person who would engage in these types of illicit transactions. And I think I would also point out the fact that this really was the tale that wagged the dog in this trial. The government spent almost half of its trial presentation on this one transaction, again, to emphasize the point where there was no allegation that Mr. Cox ever saw that gun, was ever touched that gun, was ever in the same room as that gun. Yet, they went through this entire inter-rinable discussion and description of how this came, he was going to the Walmart, then he's not going to the Walmart. None of which involved Mr. Cox. And at one point, the district court even says, we are getting way far afield here. This is almost incomprehensible given the convoluted manner in which you're trying to present it and the way in which the witness was speaking. So I think the danger or the prejudice suffered by Mr. Cox in this case is exactly I think the danger that I'm worried that this, you know, that I'm not dispelling, which is the jury is focused on the wrong thing. The government makes this appear as if this is a case about illegal gun transfer, illegal gun transaction. Well, you know what we do is we, I mean, these are trial court calls on these evidentiary matters and, and in this case, even if it's not intrinsic evidence, temporarily it's very close. And it's taking all of these things are taking place at express loop. And in this individual is dependent on is mastermind and everything and provide providing a settler with the buyer's number and telling, you know, telling people where to, where to park. And he's essentially directed what's going to happen with the firearm, you know, without his, without his involvement, the firearm would, would never move. He's, he's directing the movement of the firearm. I agree, Your Honor, but that's not what he was charged with. That's not, that wasn't the crime that he was charged with. He could direct the firearm as much as he wants, as long as he doesn't actively or constructively possess it. And that's exactly what happened on the, on the May 21st transaction. He never actually goes to, it goes to his knowledge on the other two say his knowledge of what is what I would ask the court, his knowledge of what that is going to the state of a firearm buyer convicted fellow. And again, these are 922 G offenses. He's pleading not guilty, which he has every right to do the case is going before jury. He's pleading lack of knowledge. He can't very well put that he's not a felon. He's just saying, I didn't know. And this goes to refute the fact that he didn't know he was not, he's not an innocent. It's knowing possession. That's correct, Your Honor. And I would say that, you know, again, the May 21st has nothing to do with whether or not he knew he was possessing a firearm. But I would like to, I see my time is slipping. But that's a matter of weight, really, more than admissibility. I mean, Your Honor, I would disagree because I don't think it's relevant or necessary to an element of the offense, which is the test that this court set up. But if I could, I'd like to turn briefly to the issue about the jury instruction on the Aiding Abedding issue. Mr. Cox requested an instruction that the jury be told that in order to convict him as an AIDR in a better, he specifically needed to know that his co-definite naval war was a felon. The district court declined to give this instruction. However, he was entitled to it because this was a correct, though non-obvious statement of the law that the jury wouldn't necessarily come to on its own absent instruction. The third circadian Xavier spoke directly to this when they said, the jury cannot have been expected to make a finding beyond reasonable doubt as to the defendant's brother status as a felon in the absence of an instruction to do so. And they found the other circuits that go the other way. There's one other circuit that goes the other way, and that case was called into question by subsequent cases of the ninth circuit. Well, I've seen to me there were two circuits that went the other way. There was a seventh circuit case that dealt with a related, though, not identical issue. And that was a case where the issue was slightly to the side because it was clear that the gun was used in connection with another offense that the defendant was well aware of. But the actual instruction that was given, you know, it may not have been in the exact words that you wanted, but the district court's instruction said the defendant knew the crime was to be committed and knowingly did some act to further its commission. Now, the crime was the knowledgeable possession. I mean, it was aiding and abetting the knowledgeable possession of a firearm. So we're saying a new crime was to be committed. Well, how would you know a crime was going to be committed under an aiding and abetting theory? You would know that the principal was a felon because that's what makes the possession illegal. So, you know, I'm not sure we even need to reach this circuit split because the instruction substantially gave you what you asked for. Well, that's a very important point. I think you do need to reach the circuit slip because if you look at the instruction that was given in the canon case, which is the ninth circuit case that held the defendant did not have to specifically though. They gave the exact same general instruction that this court did here. Could you incorporate India response kind of as a threshold matter? What you contend is the standard of review of the jury instruction issue. But as a threshold matter in responding to judge will continue to question does that make sense? I think this issue was preserved. We requested the instruction. You don't think it's planar or in other words you think you think we think we think we think we went under either standard and Xavier found it was. In fact, planar or not to give this but we think it was requested and then requested during the charge conference and not given. But to answer judge Wilkinson's question specifically in a way the government is trying to have it both ways by saying, oh, well, you know, the law is not clear on this so we didn't have to instruct. But then they say, but this instruction was so clear that the jury would have gotten it anyway. Well, the flaw in that argument I think is that the canon case which held that the jury need not be formally instructed about this point. And looked identical to the instruction given here and what that means is that based on the instruction given a jury could reasonably conclude either that the defendant had to know that his principal was a felon or that he didn't have to know there was a felony that this. This point needed to be addressed by the district court given the very. An obviousness of the. I know that a crime was going to be committed if he wasn't aware that the principal was a felon well that's what the nine circuit has held I mean that. But I don't know, but I'm still perplex because. You know, we can we can quibble about the meaning, but he is we're talking here about an eating and a betting theory and we're talking about the. The knowledge that a crime was going to be committed the instruction given by the district court said the district the defendant knew a crime was going to be committed and knowingly set out to further its commission so there's a center element and the men's Ray element clearly in these instructions. And I don't see how you could know that a crime was going to take place unless you knew the principal was a felon because that was what that fact was what was what differentiated the innocent possession of guns from the criminal possession of gun. I think that's correct and I think I think as a matter of law you're absolutely correct that's the position we're arguing is that he needed to know our point is that that is not something that a jury would necessarily take from this general jury instruction that's what the third circuit held in Xavier that's what the six circuit held in garner that this is not something that so intuitively obvious that the jury should not be instructed on it. I think that conclusion is bolstered by the fact that the ninth circuit which doesn't. Subscribe to that theory gives the exact same instruction the instruction is opaque as to the knowledge of whether as to the requirement whether the defendant must know the principal is a felon and that's why in this case the jury needed to be instructed on it. I see my time is up but I. Judge Keenan had a question to do. I was in the room. Thank you. Thank you. Sure. Good morning. May it please the court. I'm Shalke Shah here on behalf of the United States. Now we spent the defendant has spent a lot of time talking about the four or four B evidence issue and the jury instructions. I'd like to first start talking about the issue related to the jury instructions and that's because I want to first go to a threshold matter before we're talking about whether or not the instructions were sufficient whether or not they cover the instruction. The fact of the matter here is that if you look to the full dialogue before the district court. Regarding this aiding and about the instruction you see that the defendant was faced with competing interest and therefore made the strategic and tactical decision to abandon his request for a jury instruction that the defendant was required to have knowledge that never bored was a felon. And if I can walk the state is wave. Yes, Your Honor. I'm arguing that it's it was something that they did raise it was in their proposed jury instructions as the discussion progress. Plane error issue rather than a waiver. Well, Your Honor, I think there are two separate pieces to it and we're not talking about their failure to object to it before the district court which would then would be a plain error issue. But here what we're talking about is the defendant completely abandoning that request and making the strategic and into how are you saying he abandoned the request other than the fact he failed to object. Well, Your Honor, in this case he actually did raise it as part of the dialogue about the jury instructions. He didn't necessarily fail to object because he did ask the court to include this instruction. Well, Your position it seems to me you're arguing a distinction without a difference in this case because if it's if it's plain error. Then you win because there's a circuit split. There's no controlling precedent here. And if it's waived, you win. So why are we arguing this? I mean, isn't isn't the real issue here? Oh, it seems to me whether this is a plain error situation. Well, I think you're right. Your Honor and your characterization that if it is subject to plain error review, we would win. I think that they're okay. Is there a substantial injustice here involving this case? No, Your Honor. No, there's not. And the reason is the instructions that were given covered what the defendant was requesting. Now, we've all talked about this circuit split. Yes, there is a circuit split as to whether or not it aiding and abetting felon in position. And the reason why it was a misuse of a firearm requires knowledge that that individual was a felon. Now, I'm inclined to agree with Judge Wilkinson that it might require that. And it seemed like the district court here was inclined to agree with that as well. And that's because she aired on the side of caution and included in her instructions a requirement that there be that sort of intentional act in furtherance of the commission of the felon in possession of firearm, which required the knowledge that individual would be a felon. But how would a jury know that from that instruction? Well, I mean, it's really kind of abstract, isn't it? It is so much more abstract to say your charge at the jury. The defendant had to have knowledge of what was going on rather than to say the defendant had to know or have caused to believe, I think, as some of the other circuits say that the. The defendant was a convicted, the co-defendant was a convicted felon. I mean, one is very abstract and one is very concrete. And why wasn't he entitled to the concrete one? Well, your honor here. I believe the jury and the district court's jury instructions were clear. She talked about them in three different ways. First, she started. I guess I want to be clear myself. I'm not saying they were erroneous. I mean, I think they were absolutely fine, except why wasn't he entitled to more? I don't think more was necessary. If you look to the dialogue regarding the jury instructions, where the defendant asked that the instruction be given that the defendant had the government had to prove that the defendant had knowledge that word was the felon. The government council then responded and said, I believe that's already covered by the instructions and referred to the specific page numbers. Those instructions were asked to counsel one and two. The government must prove that the defendant knew the crime charge was to be committed or was being committed. And so on and continued beyond that. At that point, the defendant did not say that he did not agree, but then instead agreed, okay, we don't need it. Essentially, conceding that those instructions. He just said nothing. Well, he didn't say immediately, yes, but later in that discussion, he did. Where did he say we don't need it? It's on joint impetics. I believe the discussion starts at 273. So I believe it's on page 275 where the defense council comes in and says, I'm looking at all these. We've now talked about three different jury instructions all relating to Neville Ward. First, we're going to instruct that his, the evidence that he pled guilty to counsel one and two cannot be used as evidence of guilt of the defendant. However, it is relevant to eating and abetting. But then they asked for the instruction about knowledge and he pulled back. Defense council pulled back and said, we're going to confuse the jury with all these different instructions. I, I shared judge Kenan's, I think, perplexity is to why you are making this argument. Why, why does it matter? You, why, you almost seem to be resisting the notion that it's plain error. I realize that you argued for waiver in your brief, but is this really the best use of your time? It appears not your honor. Now, I don't want to cut Judge Kenan's question, but I really don't, I'm not quite seeing how, how it advantages you to argue that it's waiver as opposed to plain error. Yes, Your Honor. I, I have to agree with you that it might be better to argue plain error, but I still think that that dialogue is relevant to Judge Kenan's question of was a jury entitled to the more specific instruction. And at this point, you see this dialogue between the court where the defense council then said, we were running the risk of confusing the jury by including what we've identified as what would be maybe a more specific instruction. And instead, both parties agreed to argue that in their closing and agreed that the instruction has given would be better to cover what, to cover this knowledge requirement in the intent and mensuray report. And I did not meet the cutoff Judge Kenan's. Oh, not at all. No, no. I mean, that's where I started out, too. Why are we arguing about the distinction from your position? Your Honor, I wanted to also discuss the 404B issue and the defense council has argued that it's not relevant to any element of the offense. Well, let's start out with, do you believe it's intrinsic or extrinsic or and do you believe it makes it makes a difference to the analysis and ultimate disposition of the issue? Well, I'd argue that it's intrinsic and the reason for that is that this offense, the evidence of the May 21st transaction occurred within one week of the first of the offense conduct charge and count one of the indictment. It occurred within the six week period between counts one, the offense conduct for counts one and counts two. The offense itself, all three offenses are all three instances involved the defendant initiating the sale of a firearm. All three offenses took place at the defendant's place of employment. There were distinct similarities between these such that they were inextric, the events on May 21st were inextricably intertwined with the charge conduct. Therefore, I would argue that it is intrinsic to the offense. I think the government was exercising precaution in introducing this as a 404B of evidence, which required further required the government to demonstrate that it was relevant to something beyond propensity, that it was relevant to knowledge, it was relevant to a common schema or plan, it was relevant to his absence of the mistake. And also required the district court to offer a limiting instruction, which the district court did offer not once but twice and offered it dirt when the evidence was introduced and again in the jury instructions. Now, the May 21st defense, I just don't get how you say that's intrinsic because you got a different transaction on a different day to different principle, different firearms. And we've said that in order to qualify as extrinsic, the acted issue must be inextricably intertwined with the charge act or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charge. You don't have that here. Well, your honor here, I think because of the similar area of events and because the sequence of times and the temporal proximity we argue that it was even. Please use the lady analysis and tell me how this is intrinsic. Well, your honor, if I think we make an alternative argument and I think this is why we did introduce this as 404B evidence at trial was because there are certain limitations to whether or not this would be part of the exact of the same course of conduct. Arguably it is, but here I think as 404B evidence, it is evidence of knowledge intent, its evidence of absence of mistake, its evidence of plan. And I would like to direct the court's attention to the definition of knowledge that was offered in the jury instructions and that both parties agreed to. The district court advised that the jury that knowledge means that the defendant was conscious and aware of his action or a mission, realize what he was doing or what was happening around him and did not act because of ignorance, mistake or accident. And I think because of that specific definition that the events of this May 21st incident were specifically relevant under 404B to that intent requirement, that knowledge requirement for the defendant's conviction under felon in possession of a firearm. And you're not really, you're not conceding that it's not intrinsic because of the similarity of events in almost a continuum involving the same locale, the same buyer, etc. You're arguing in the alternative. Yes, Your Honor, it was an alternative argument and we recognize that that May 21st event, although part of that, part of that same sequence of events and there were distinct similarities, it wasn't a separate charge defense. And therefore we introduced us for a 404B evidence, understanding that that would come with the requisite limiting instructions and therefore the risk of prejudice or the risk of the jury misusing that information would be limited. Was it necessary for you to proceed under an aiding and a betting theory? Your Honor, in my review of this matter, I don't think that it was necessary and I think if you look- You're one I just go after this guy as a principal. And I think we did. Your Honor, I think we absolutely went after him as a principal. I think in our opening and closing arguments, it's clear that as to the May 14th incident, we were arguing that he actually physically possessed a firearm. Right. And you know, the jury found in your favor, I realize this is hindsight, but I was just wondering, you must have had some discussions about whether it was necessary to include those aiding in a betting count. So whether you were just going to head directly after him as a principal on a theory of constructive possession. Yes, Your Honor. And you know, I'm prepared to admit to the court today that I think it would have been clearer for us to have pursued specifically actual possession as to the May 14th and constructive possession as to the June 27th transaction and to have left the aiding and a betting out. I think the fact that both defendants were felons, they both possessed firearms that led us to indicted as aiding and a betting each other. However, I'm inclined to agree with the court that actual and constructive possession was the better way to or the better theories that under which this defendant could be found guilty. And additionally, I think in our closing and our opening arguments, the government council made that clear to the jury that those were the basis for guilt that it was pursuing. We argued actual physical possession as to May 14th. We argued diminishing control over the firearm and especially over the premises where the gun transaction occurred on June 27th. And those were the theories of liability that we pursued at trial. All right. Thank you. Thank you very much. Thank you very much. I'm seeing that there are no further questions from the panel. We argue that the defendant is not entitled to relief on his claims. Therefore, we ask that you affirm the judgment of the district court. Thank you. We thank you. Mr. Du Bois, you have some rebuttal time, sir. Thank you very much. A couple of things. I would, but the court's adults also like to briefly touch on the sentencing argument that I didn't have a chance to get to my first go round. But on rebuttal, I agree with Judge Keenan that the 404B evidence clearly fails the LID test. It wasn't part of a single episode. I didn't say it did. I asked you to do it. I think it's sort of hindsight to this point for the government now to package it as something other than what it was. I did say it didn't not really. You might. I take that back. As to the aiding and abetting instruction. I think that when you put it in your proposed during instructions, when you specifically during the charge conference requests the judge give your proposed instruction, you have preserved the issue. The district court at the close of the charge said, is there anything other than what has previously been discussed you would like to object to. I think it was fair to for the defendant to think at that point they had made their request the judge declined to give it. And therefore we are not on plane area. If we're not on plane air, I think it's clear that this was a proper instruction on a non obvious issue. But I'm very closely contested. I think it's how you said under the third prong of allow your substantial rights were affected because. The instruction that you got may not have been ideal and you may have wanted to get it in a more specific form. But it gave you a hunk of what you wanted. I think that's right. You're on it, but we're not on we're not on plane area in our view that we did request it. We did request it at the charge conference and we didn't get it. I don't see how with that. That is not sufficient to preserve the air for review by this court. If I may speak just very briefly on the sensing issue because I think it's important. The court gave a two level increase based on Mr. Cox's the light's possession of three firearms. There's no evidence that he possessed the firearm on June. On May 21st either constructively or actually that was an air that. I mean, you know, the sentencing question is decided under proponderance. That's correct. That's the evidence that the government pointed to at the sentencing hearing to support that enhancement were two. One that Mr. Cox had gotten money for that may 21st transaction. And second, they had helped Mr. Brunson obtain the gun. Both of those I think the government now it's in their brief were incorrect and were erroneous. Neither they were the government council at sensing was conflating one transaction with another. So there is in fact no evidence that that third gun was ever in Mr. Cox. We have to find that finding on the three firearms clearly erroneous. That's correct, John. It was clearly erroneous. And we notwithstanding also constructive possession counts for purposes of the enhancement. That's correct, John. But there's no evidence we would submit of constructive possession. Certainly none of actual. But Mr. Brunson testified it was my gun. I went out and got the gun. I controlled the gun at all times. Mr. Cox had no dominion control. But what about the district court statement that she was going to apply the same sentence no matter what? Well, that's very interesting because the judge said that she came to her sentence or departure sentence by way of the guidelines. And one thing that I'm taking myself for not including my reply brief that I noticed when I was preparing for argument today is the court said, I'm going from criminal history category three to criminal history category five based on offense level 24. That was the erroneous range. That's how she got to her range that gave her the 100-month sentence. Has she applied that same analysis going from the proper offense level 22 from criminal history category three to criminal history category four? She would have ended up with a different range that would not have supported a 100-month sentence. So given that error, we cannot presume that the court would have given the same sentence, absent the sentence in calculation error, which infected her later upper departure determination. Thank you, honor. We'll come down to greet council and just take a brief recess