testimony of the government's only witness who claimed to have seen my client cortez sanders in possession of a firearm at trial to prove mr sanders guilty of being a felon in possession of a firearm the government presented the testimon been as close to mr sanders as he claimed and he could not have seen what he claimed to have seen just says mr sanders said that any reasons to question the testimony that he was the man running from the police do believe your honor that officer wallace his testimony as a whole was incredible but it's physically impossible particularly at that moment where he says he saw mr sanders face so and the reason we believe that his testimony was physically is because he testified that he was chasing the sanders at a distance of ten to fifteen feet he said he was running as fast as he could safely he testified that he was trying to gain on mr sanders he was running quickly and then he testified that at the moment when mr sanders allegedly discarded the gun the mr sanders slowed nearly to the point of stopping underactive he said to mr sanders did start on cross examination he indicated that mr sanders didn't make a complete stop but slowed enough to make the toss and so it's intuitive that at a distance of ten meters somebody sprinting behind an individual will catch that individual almost instantly and when that individual stops and furthermore he testified that he not only that he didn't catch mr sanders but that he completely lost sight of a six foot tall man running ten feet in front of him you know it's very dark so it was to what extent  your argument depend upon the accuracy of the ten to fifteen feet to him we believe that if it's if the ten to fifteen feet is important because it indicates what mr because if mr wallace was any further than ten feet behind mr sanders and he was not in that alley he was in the adjacent lives and we know that because officer wallace testified about the location of the garbage can where m sanders allegedly discarded the weapon he testified that that garbage can was located in the alley that it was located behind that first house and it was south of the property line so we know the garbage can was in the alley and so if officer wallace was more than ten feet behind mr sanders then he wasn't in that alley he was in the lot and if he was in the lot and he couldn't have seen mr sanders discard that firearm in the garbage can and we know that because of the evidence introduced at trial we have the government's aerial photograph which shows all of the obstruction in that back yard we also have defendants photo eleven which is appended to our opening brief which shows that there's a alley and that's a point that the government conceded in their response to the defendant's post trial motions the district court government said that if mr while officer wallace was in that alley he easily could have lost sight of the defendant after the defendant ran behind the house just south of the vacant lot and so i'd also point out that officer wallace is testimony about being able to observe mr sanders toss the compatibilities there he says that he was unable to keep track of mr sanders this six foot tall man in motion but he was able to observe him discard a firearm that was three by five that was no bigger than an index card half of the surface area of which was wood so he is claiming that it was so dark that he could not see this man running through the alley but he could see that very small item be discarded around the corner i point out so based on the fact that officer wallace's testimony was incredible we believe that the location entirely different than where officer wallace indicated officer callahan said that the firearm was recovered from a garbage can behind fifty eight thirty nine self emerald which is the middle house on the block and officer while it was very clear that the firing was discarded at the northernmost house just south of the property line he was specific about that so in terms of where the gun was recovered we haven't we have that is the contradictory evidence of the two have seen both civilian and police officer witness who's be wildly inaccurate about distances and times particularly in these kinds of fast moving situations  and he should certainly seem to me a lot like credibility problems you know the ten to fifteen feet behind that kind of problem why why isn't there a simple explanation of just so's the officer was just bad at estimating distance and sometimes if it was just a question of that distance i think this would be a closer case that we have the corner we know that if it's if he was only if he was farther behind than ten to fifteen feet that he wasn't in that alley there's there are the physical realities of that face govern what was possible in terms of this chase after  wallace testified he ran up emerald along the fence line of the bacon my and then turned back down into that alley so we know his path if he was not refuse any more than that distance behind us or standards based on where he said that mr sanders  was a firearm recovered yes a small non working firearm was recovered from a public alley in the middle of inglewood but the evidence that proves presented at trial was not sufficient impossibility of officer wallace's testimony she still remain on this case because the district court failed to independently and adequately assess the credibility of the government's witnesses which is the standard on thirty three arguments that you heard this morning consider the case and returned a guilty verdict against it and it and in this appeal it bend it wishes to substitute their theory of physical impossibility used to carry the guy and you know figure prints on the gun we called an expert to explain the how come it is that fingerprints are not found on the gun your honor and the bag was n recovered no the gun was recovered in the trash hand by officer kelly and exactly where oxford wallace saw that and tossed the gun this theory a physical possibility it's based on unknown variables that are just simply estimates and they can't be quantified and simply stated they're unreliable for one thing the footspeed of officer sanders i'm sorry officer and the defendant now in the reply brief i think believe it's footnote three there's a long discussion of analysis of speed references to physics textbooks mathematical equations but at the heart of this theory is an assumption they write one assumes wallace and sanders are running at the same an initial velocity but they don't know that we don't know that  no one had a stopwatch and officer wallace ensues pursuing this defendant pursuant to nine one one call down ammo into the vacant lot and into another alley before the defendant was found hiding in a field near there sumption a physical possibilities unfounded and it wouldn't be improper to substitute the unfounded assumptions for the jury's verdict and it's really fair to consider that there might be some imprecision with regard to officer wallace's account of the distance from the time as your honor points out many witnesses have difficulty relating time and distance  their testimony but they can be done without discounting its credibility as a whole as judge leake consider in dealing with the post from oceans both rule twenty nine and rule thirty three motion and if you consider the crop grading evidence that supports officer wallace so how could how could wallace have seen him throw the gun and  judge if he would have been at a proper distance to see the toss and yet have his attention diverted by that event and then see sander slip away and lost sight zat after he pitched the gun and there was the opportunity loose sight of him from officer while since perspective the the the jury heard that the defendant threatened to shoot someone outside this bar in the early morning hours he called for somebody to bring his dad when the police arrive in response to nine one one call he takes off he runs he runs through the alley runs out the emerald  and then he hides in a field and the gun as i mentioned is found exactly where while the said it would be in the trash can and i respectfully submit there we have a dispute with regard to the reading of the record there is a consistency between callahan and wallace testimony with regard to where the gun was found it was a trash can not only a trash can but an open trash can and this weapon was the only item in that trash can it was not physically impossible for a while as to have seen what he saw whether he was in the alley already or whether he was near to the intersection of that bacon lot and the alley where he could see the defendant by the trash can crap orating evidence that judge lee referenced in his order on the post trial motions reference princess white who heard the defendant threaten to shoot a t l officer callahan found the weapon and so the district court properly deny the post trial motions including the rule thirty three motion and ruling on those motions he clearly made his own evaluation of officer while since credibility just like the jury did and he concluded that the evidence supported the conviction of the defendant based on wallace's account  and so your honor we submit that the result was correct below judge lee properly follow the procedure in considering in ruling on the post trial motions including the rule thirty three motions and just a few points government's counsel pointed out the assumptions that we made in our reply brief about the physical impossibility of the evidence and i note that we made the most generous assumptions we could in terms of the officer whilst this favor i think we were more than fair he also notes that in this motion for new trial there were they were asking essentially this court to substitute its judgment for that of the jury but i point out that on a motion for a new trial the judge is allowed to make his own credibility determinations regardless of what the jury's determination of credibility was regardless of what their verdict was and i point out that judge lee did not do that here the portion of the order that the government cites as being indicative of his consideration independent consideration of the testimony of these witnesses cites the rule twenty nine standard repeatedly he did not make these independent credibility determinations especially out of office or wallace