evidence was sufficient for a rational jury to find that absent a deputy united states marshal provided knowingly false and material testimony to a federal grand jury and this court exercise plenary review of that order and use the jury's verdict with a highly deferential standard of review in a judgment of acquittal should not be granted unless there is no evidence regardless of how dissuaded from which the jury could find the defendant guilty i'm here if you look at the the order of the district court or the analysis of the district court or the court didn't consider the evidence at all in granting this motion and instead relied on a wholly irrelevant typographical error in the superseding indictment a typographical error error which was never raised by dobson and which is the government explain in provide no basis for judgment of acquittal when you actually look at the evidence here it's clear that the jury could find that dobson knew that langford davis had a gun i remembered seeing langford davis at the hospital and that those statements had the ability to influence impair or hamper want to spend a moment on the superseding indictment sure and tell us why just court should not have relied on well first of all the court explained to the jury on several occasions that the testimony there's no question mark there and if you will to listen to the tape and the tape wasn't provided but it could be provided to the court i'm it's very clear that the statement was a statement that's in himself at the oral argument that the the motion an assertive response so everyone was under the impression of this with a question so by looking at that he was that the cause of cancer that wasn't evidence in this case i clearly no reason to look at that to say that this should be a judgment of acquittal because the evidence was more than sufficient the court the government pointed out a couple of possible other ways of looking at this question mark but none of them would again be the basis for a judgment acquittal perhaps the defendant could have moved for a new trial but the defendant didn't do that  again there would be no basis for a new trial either there's not a prejudicial variance there's not there's another basis for the conviction as the government explained no answers the court didn't look at the no answers and explain why the evidence was insufficient as to that so there's correct standard here but the court i mean i suppose it's possible that the court didn't look i mean the court didn't look at the evidence and the evidence is more than sufficient here i don't see any reason why the court should go back and i mean the evidence was clearly more than sufficient the court in the case  counts i don't know if the court wants me to go through the evidence or if the court wants me to well you're asking us you're asking us to do the job that you say that district court you did not answer and so i think it would here and he was sitting upright he was answering questions he was and he talked to someone he hadn't seen in two years so i think the evidence was fairly corroborated that he he knew what was going on in front of him and what happened after that i think corroborates that further when langford davis became a suspect of some she immediately flees he drives off in a flat tire he leaves a good spare tire behind docs and all of a sudden doesn't know his best friend doesn't know anything about him can't answer any questions if you look ahead mr langford davis is found with the same gun on the same ankle you know in the same holster two weeks later so i think that corroborates it further if you go back in time you have dobson i'm telling the bouncers at the club that langford davis is a corrections officer he doesn't get patted down after the incident that night like the davis says you know i sprayed the vehicle i got them and that's the response i don't care i want my gun so there's a lot of evidence here from which the jury i mean i wasn't so much increase in the sentencing range would there be if we if we went your way and this were reinstated there would be certainly the two level increase for obstruction of justice which i think increases the ransom of like six months that the real reason the government's being the appeal is that you know this is a very serious offense it's a deputy united states marshal lied before grand jury so he should be punished for that and the government is concerned about a court's granting rule twenty nine motions without really considering the evidence saying that i'm looking at the evidence i'm an instead of relying on things that have nothing to do with the correct standard and that the government not really consider the evidence just like your arguments may be arguing against your own interest history and then go ahead and do it before he sent to the jury there's nothing you can do open we think this records wouldn't wouldn't it that and they have not done that in this in this case particularly in the perjury count of conviction fortunately under the federal rules of cruelty to twenty nine and there is a mechanism in an important vital mechanism that can avoid people being convicted of a crime when in fact the government is not proving that crime beyond a reasonable doubt and i believe that it's pretty clear from the evidence that was offered at this trial and even based on the entire jury verdict in this case that the government has failed in its efforts the two essential elements that an on a perjury conviction that are lacking in this case is one that they prove that  knowingly gave a false statement to the to the federal grand jury and you're not relying so much are you really relying on the typo or or what well your honor i immediately i can tell from my brief i did not speak much indictment that actually has a question mark at the end of my client if the judge was focusing on the typo and i think i agree with you that in your analysis as to you it may not be as important as one might think isn't what you're really arguing sufficiency of the evidence absolutely you know and that's a toughie respectfully and i don't think it is that tough in this case i really do not the government is the one who's making the the conjecture here they what happens what what is clear and this is from the government's case is that this minute my client mr dotson gets assaulted robbed  at a nightclub in elizabeth new jersey and government witnesses now explaining how he looked and behaved immediately after that robbery there was some suggestion he might even have been shot in the head area though that was never conclusively disoriented to use the word that he seemed a little bit in shock he wasn't very responsive and really wasn't totally balanced out that's the manager of the nightclub that the government called my client so it's somewhat unclear as to how the government can say it's clear that my client knew that this men larry langford davis had a gun at the hospital my client was being treated for these head wounds and blood was only gushing from his head at the at the nightclub another balance on jose morale is also that he was full of blood these are government witnesses one of the problems you have is that a few weeks later after the january five incident  argument that he could not have seen the gun and seen this person at the hospital that was presented to the jury and the jury didn't buy it is not true there's no doubt that the gov that the government got a conviction on that particular town and that the jury had to decide who's telling the truth was your client telling the truth when he said i didn't see it because of my condition or what he says in october now of two thousand and eight rather than january two thousand and eight when he when the incident took place and three weeks later when he spoke to detectives and he saw mr davis at the hospital was that it's ten months later at the grand jury and in an unrespons way he's asked did you have did you see larry langford davis with the a gun that night generally for january fifth he says no and this is i don't even remember seeing him a possible ten months later now after having gone through this traumatic incident of the of the robbery and his serious injuries it's quite unsettled that he would not remember that but the jury just believe it was testimony the jury convicted him on that  doubt about it the jury acquitted him on two other counts in which he specifically was asked did you give him your gun that night on january fourth and he says no where was your gun that night and generally fortune if it was in my house the jury found him not guilty and that was the essence of the government's case and it's also the essence of the of the grand jury indictment because the grand jury indictment on count one in  when in fact this is on the count one of the knowing dispose of the gun when in fact the firearm that langford davis had strapped to his left ankle was that which defendant document recently purchased supposedly for defending  essence the government trying to say a gun in the bottom lines of the government's indictment in the government's proved we're trying to suggest that this was the same gun and the jury found beyond that notre dame on vacation i had a state in the way for the deliberation i think they started deliberating on late thursday afternoon no verdict then i think all day friday nov my wife saying when you come in monday no verdict and then some late tuesday afternoon  they came back with a verdict my wife was happy about that i wasn't given what the verdict was so it was a long deliberation and and the government writes in their grief that well you know inconsistent virtex you know don't not or isn't a cause for concern and and and as a general rule of law of course that's true but what we have here you're honest is the jury the trial jury specifically in the grand jury which was the essence of the the last count council acts that how that happens you know that in fact you know he was the one going to into a bar that night and he my client he had the gun valances stopped and told him get get rid of the gun he goes and puts in larry langford davis car and then forgets that he was drunk he was drunk on the nineteenth he was drunk on the fourth and the fifth which is another factor as to what he did seeing when he didn't see at the hospital so when the jury the jury found not guilty on the perjury count respect to what happened on the nineteenth as to what and twenty said to the grand jury that's significant to it and there's no doubt that it is done in the power got there and i think it's somewhat significant that he's found guilty of count one which is the known disposal of the gun which is consistent with even what the what the prosecutor said at the very outset of can still convict him on count one known disposal because in fact he told larry langford davis efi now you know where i realize that he left the gun in the car to just take the gun hold onto the gun i'm too drunk to drive and come and get it essence dotson's version of events about calling for davis and saying i come get in the morning you make the assertion of page forty eight of your brief that the district court held that the materiality statements was not proven but what do you base that well i think it's very easy with respect to i don't remember that that i don't understand if in fact materiality is if it's helpful to the in the grand jury investigation  if it's true that it's helpful if it's not true then then it hinders the fact that he did or did not remember ten months later seen mr davis in that hospital is irrelevant and totally immaterial it would not grand jury investigation here and with respect to whether or not he did you see larry lankford there with a gun that night a gun that night you know well you know we know from the from one the jur reasonable inferences as to the acquittals on counts three and four and even on councilor x that that it wasn't you know any gun that the whole premise of the indictment the whole premise of the grit of the prosecutor's arguments is that was the same gun made much of an effort in trying to explain to ron it in its in its brief that in fact that that was material to the grand jury investigation at the very outset they told him my client in the grand jury when he voluntarily up his of the grand jury investigation not whether or not they my client remembered seeing larry langford davis at the hospital that night i think you could go on your good thinking that the government if we disagree with the district court i'm sorry if we disagree with the district court and his reliance on the the indictment then i gather you would like us to send it back and have him do an analysis the normal want us to do that and come out different ways well if it's coming out a different way than i thought i would see the second choice is of course it could be remember back to this record in the district cook or do a fuller analysis i would like to think that in my brief i have explained why the government has not carried its burden the government witnesses you are now all established fully that my client it's very very intoxicated on the night of january explanation of how he appeared there was the there was total chaos in that hospital that night one police officer off the prayer explain there was probably fifty people or more in the emergency room that night it's about three am in the morning and many friends of my saw mr langford davis showing the gun that night no one no one can no one can establish that from the government's case and i think that's very significant that's why the government cannot carry the burden of proof beyond a reasonable doubt here on each essential element mr coe let me see if i understand where we are and what your position is with us you seem to have argued and correct me if i replaced that you're not relying on the basis of district court used to grant the r twenty nine motion about the question or you were saying that the the evidence was insufficient to convince irrational your that your client was guilty is is that's are again that is just my own yes and so if we disagree with you we look at the record and believe that in fact there was sufficient for those events of rationals or what is it or asking the court to do well if you believe that there's sufficient evidence his testimony undermined you know that i witness testimony and it bolster his own story which he later told at length for davis trial so i think that is material and finally that again the defendant is trying to you know look at the evidence in the light most