all right mister janov the court appreciates your willingness to accept the appointment under the criminal justice act in this case and we'll hear from you st thank you your honor may please book or counsel i'm i can see him but well wait a minute until you can look for him i showed participants a list under his name yeah i have them pinned all right go ahead i can hear trafficking offense that conviction is not challenge on appeal he was convicted in count three of fallon in possession that conviction is not shown on appeal the conviction that furtherance of the drug trafficking offense this means that the government has to prove that avid is from which a reasonable trier of fact could find a nexus between the possession of the firearm and the drug crime such that the possession had the effect of furthering advancing or helping forward the drug crime importantly and a very important corollary is that simultaneous possession of the drugs and the firearm by itself isn't sufficient to sustain the conviction on count two but at the end of he had his varmint rifle with him he did every day there was testimony not only from him but from two other witnesses at the trial that  was his standard behavior in fact it was so standard that it was kind of a joke that he was always out there and he was always trying to keep barman's away with his with his garment right wh conversation with the officer right after they after the delivery of the package where he told the officer well i have this for protection and stuff i think was the phrase and didn't follow five up with the explanation that then came out question and i think that what you've done is raised the government strongest argument on the appeal but i think the answer to the question is no and the reason for it is the case did go to trial and there was the entire record of the carriers has only one explanation for the question of protection from one and that explanation is protection from  now certainly there's no question in my mind anyway let had the government chosen to do so it could have offered how do you or you know any experience narcotics detective to testify as to the well known link between drug trafficking and firearms and that that is a very common thing that drug traffickers would have a firearm to protect their drug proceeds to protect their drugs and they certainly could have offered that evidence now i'm not saying that evidence would question now obviously a person would have been subject to cross examination and one of the things that is interesting about the case and would have certainly been a topic of process them a nation is that of that information the credibility of those witnesses as to that testimony not at all no no challenge whatsoever and frankly you know at least one of those witnesses was completely neutral i mean it was just a member who live three or four parcels down the road but that's the that's the heart of the problem here is that simple possession of both is not enough and so what we did in the case law and i apologize spent too much time talking about that so i have to move kind of faster but what we did in the case law is exactly that when you find that guns are in close proximity and they're easily accessible government brings on an expert to testify to an axis standard procedure didn't happen the other thing that happens in these cases is we get testimony either from a cooperating codefendant or from customers typically that the defendant used the drug but use the gun on other occasions to facilitate drug trafficking either he would have begun with them during sales or would take it when traveling to go do a purchase or whatever but there would be testimony like that and all of the cases every single one sided by both parties in the briefing has one or both of those but this case has neither so well  vitamin issue yes sir ash and all jury except that testimony is true but conclude that the gun was a dual purpose weapon for protection from both vitamin a and persons who might be a threat to the drug trade certainly certainly but they did have a basis to do so in this case there's no doubt that he had why not if they had the admission about protection in the gun loaded in accessible in in proximity to the valuable drug shipment well there's a couple of things on that drug and i'll try to go as quickly as i can one is the evidence is uncontroverted he was not expecting a package so he was not out there to protect drugs they searched the house there nothing no drug paraphernalia no large amount again nothing absolutely nothing then he's out there with this varmint rifle he is not expecting a delivery well then they show up within a minute after that and arrest him so there's no basis to say that he had that gun to protect those drugs because he wasn't even anticipating receiving now as far as the dual purpose yes you could have a dual purpose no question about it but the jury was not given any alternate purpose none there was no evidence of any other purpose for having not done all they had to do was offer how do you sure know who took that state or anyone else to say well what would make sense what would be a legitimate reason that a person would want protection moji it would be to protect their drugs protect proceeds and all that but there was no evidence of that that is not in the record anyway save the rest of my time if that's ok i just have a minute left unless it was anyone has another question had the rifle loaded within arm's reach in order to protect the only valuable thing that was available to him at that time just thirty three thousand dollars of methamphetamine a substance that is illegal keep it up and we're not here to discuss i know that the about possession constructive in my house in my hunting safe in my cabin wherever but i'm not selling drugs doing hand hands and actions without the gun in that case is not this this is the piece with the defendant  recognize that there's a background information that your hands here we've discussed a lot we have the defendant has a prior conviction or two for drug distribution and in one of those circumstances the jury heard the defendant  argument you said that it it wasn't really important that he didn't know the package was arriving why isn't that important you know it seems to me if he doesn't know the package is arriving then you you have fact relevant and what inferences a jury could make with allan additional evidence about whether that gun was there to protect what i think everybody concedes is a valuable package so that the defendant knew he wasn't expecting it the fact is on that particular day and we don't have that that exact evidence then it doesn't mean he doesn't even expect packages on the regular but i'll give you a nd piece of information your honor that they were the know go ahead and then the inference he would have to make is the evidence in the record is that the package was set to be delivered on the th and that the defendant would not be receiving forty three thousand dollars of methamphetamine without knowing that it was  and then and then where was he found with the package in the guide when i was happy in relation to the place where he received the package from the post office no agreement i believe both those jury was entitled to weigh in deciding whether to create a part of what the what the defendant said about protection and to the fact that the defendants had trials that something was you know well complete government is saying the jury could find this but they never offered the jury the basis to find out what the court has held in many many cases is the jury may infer that the firearm was used in furtherance of a drug crime when it is kept in close proximity to the drugs it is quickly excess of all and there is x for testimony regarding the use of firearms in connection with the drug trafficking they didn't provide that evidence in this case what mister hurst argument boils down to is simply simultaneous possession simultaneous possession that was engineered by the delivery that was the drugs are delivered and boom within a minute he's arrested well was our congress the location didn't he have the option as to where to whether it's a it's a fair inference for a jury to say well he chose to take the packaging go to the location where the gun was located as opposed to somewhere else and that's relevant to whether the gun was for protection you know say the gun had not been outside and he received the package maybe he would have taking it inside we don't know go ahead the evidence was and it's not completely clear but it was it was certainly accepted by the government in closing that he when the when the drugs were delivered he was already sitting out in that chair with a gun and that when he got the package he simply returned to that chair those are alive he he was inside you know and got him out to get the package and then walked outside with the gun i think but the evidence is pretty clear that he was out there beforehand and all he did was return to the seat he had already been sitting so i think it's awfully awfully difficult to say from that that that reaction would have been any different if he had received junk mail or if he had received you know well letter from his mom ok thank you for addressing that thank you both counsel for your arguments cases submitted and the court filing pinion in due cour