expert testimony about how i'm common it was to find fingerprints on a gun that testimony wasn't relevant prejudicial and confusing second the prosecutor made multiple remarks during closing argument that misstated the evidence and worse distorted the burden of proof the prejudice here a case where the evidence was so contested then in our view that it had to be tried three right the testimony that thirty out of eight hundred guns in his eight or nine year career he was able to find fingerprints on otherwise he talks about what a fingerprint it was the different types of thing there prints how fingerprints are found irrelevant it does not tend to make any fact of consequence more or less probable than it would have been without that particular factor evidence whether only thirty out of eight hundred got guns that he's analyzed have good trigger prints on the gun no and that's in contrast to some of the few cases that we see here we certainly asked on cross examination the expert to clarify one reason there may be no prints on the gun in addition to  others he mentioned during direct is that mr comment in touched the gun and all the experts agreed we moved on but our our case about mr cummins innocence turned largely on and this was consistent through the three trials on the fact that the officers testimony was contradicted and that all the government had to rely on was the three officers who said that they saw a gun and they heard a confession and there was no independent corroboration of the confession there was no physical evidence in the case to tie mr mr comments the gun and the prosecution's evidence was matched by six eyewitnesses who say that they did not see the officers find a gun and they heard the officers that testimony the prosecution argued for lower that the fact of consequence in this case was not whether mr cameron possessed a gun but whether or not they were present time even if this court accepts that that's a fact that the rest of africa savages testimony established and that's a fact that we were willing to stipulate to we had that discussion with the district court in the hearing of the motion but going to whether thirty out of eight hundred guns don't have print those several steps beyond discussing the gun in this case and that's what makes it relevant you have to show that that but let's assume that the statistical evidence should have been excluded you have to show that it was also ar otherwise turn on science or extended expertise of any kind this case really came down there is no dispute between the parties to witness credibility there is a danger here that statistics or any kind of evidence within or  science has to be improved our expertise there is compelling at compelling for a juror jurors in a way that's difficult to challenge or to or to choose to react to it then becomes an unfair opportunity for reading mr savage his testimony i thought yes they did end with the statistical evidence but it's very pointed just a lowly about the particular firearm at issue here and why it was resistant to fingerprints i i thought was much more compelling than  of primacy and recency they in each of the trials they ended that examination on how uncommon it is for you to find president fingerprints that's especially prejudicial in a case where the evidence here was so  thin that thirty six jurors had to look at it and twenty four of them walked away not being able to make a decision with each other this is contrary to palatino one of the few cases where this issue has come up where the evidence of the defendant's guilt was conclusive this court ruled and therefore the judge's improper line of questioning about how common it is to be able to find thinker prints was deemed harmless it can be deemed harmless here in a case that that was so close so tough that that the government made the unusual decision to try a man three times it was also confusing not just prejudicial but confusing because the jury was not going to hear about the seven hundred seventy seven other cases seven hundred seventy other cases where prints were not found of the thirty cases where prints were found they couldn't properly without properly evaluate the similarity or lack of similarity with those cases they were left to speculate about those cases those other cases when the real question was did mr cameron possess the gun in this case i'm going now to the prosecutor prosecutorial misconduct that that we've raised during closing argument the prosecutor told jurors that  to acquit mr thomas they have to conclude that the officers lied that the officers framed mr comment that the officers were abrupt the prosecutor told jurors that the defense's arguments must overcome the government's evidence and prove the officers are liars the problem there let's not to i have my concerns about some of the statements that were made but they were quite that i think what the prosecution said is if you believe that they are the officers are lying then you should quit mr comment that's not quite the same as saying you must find them to be lying for you to acquit him the there is no dispute that the prosecutors  acquit they have to conclude the officers lied framed mr comment were corrupt there's also no dispute the prosecutor told jurors that reaching a verdict meant determining which side witnesses lied to them we could discuss that as i'm sure you're going to get to this but even if we find that the statements were improper because they were on objected to we also have to do the balancing to determine whether it was actually harmful or in the cases that we've  alone it's plain air there's no doubt there are proper and there's no doubt there's prejudice here which is the question you are acting the remarks are harmful in this case for the same reason that this testicle testimony was harmful this case sat on the razor edge the prosecution r p did not have anything solid to prove mr cummins guilt the three trials show that these were not holdout cases this is not one of the record and they were not holdout cases and the weight of the evidence is the most important factor in that high plateau test that you've referred to and here the weight of the evidence is not strong and it's in no way strong like the many cases where this court has ruled  remarks were improper but there was no there was no harm and there are many cases like that those cases are very different you have many government witnesses testifying no defense witnesses testifying  which was the defense theory of the case that the officers approached mr common found drugs on him we conceded that and in the  charge something to greater than just point two grams of cocaine or twenty or twenty grams of cocaine threaten mr common you find this a gun or will play a gun and when he got to the its how journey that they have to choose between two stories and conclude that all of the police officers lie in order to find mr connell guilty he wonders or some time as i do please the court that hiller about half the united states the district court did not abuse discretion in admitting the testimony of chicago police officer matthew savage with respect to the infrequency in which he recovers fingerprints from firearms for two reasons t primary reasons first the testimony of officer savage with respect to the infrequency of recovering fingerprints anticipated the defense closing argument the common did not touch the gun and that the police planted planted fire specifically the in frequency with which the fingerprints are recovered from the firearms addressed and in accurate read inference that could have resulted in this case because the defendant had the gun stuffed in his pants he did not have an opportunity to wipe the prints from the gun there were no fingerprints recovered from the god but that is certainly a valid argument about the unobjective two portions of mr savages testimony but we know nothing about the circumstances of the eight hundred guns that he examined so we don't know if those were recovered under circumstances comparable to the ones under which this gun was recovered this one was recovered right away you know it had lain out in the snow and so those guns that mr savage examined could have been from all over the place and under all sorts of circumstances so i don't think i have my concerns that it's not a very we don't know whether it's a representative sample absolutely right i mean there were there was no testimony on it being a representative sample however officer savage was offered under rule seven zero to his qualifications were not challenged he was subject rose to his testimony wasn't challenges just this particular part of it absolutely and this was simply a statistical statement to frame his comment that this was extremely unlikely to recover fingerprints from a firearm and as your honor pointed out a few minutes ago he gave an elaborate discussion of why on this particular fire particularly difficult the thirty out of eight hundred reference it was serial it was merely foundational to his comment that he was on likely to recover fingerprints off of this gun or any other it wasn't just  there wasn't something in there worth factors about the skull and that made it particularly a course handle and things of that kind that could vary from gun to gun but in general it is extraordinarily difficult to recover fingerprints from firearms and the thirty out of eight hundred common merely provided a little context a little foundation that is not uncommon in expert testimony the district court to the other isn't the district court in abuse its discretion is by the third trial this district court had an exhaustive understanding of where officer savages testimony fit within the context of this trial and that only affects the four a one analysis but also affects the four zero three analysis this court district court had an excellent understanding whether this thirty out of eight hundred or even the larger testimony about the and frequency with which bigger prints are recovered could have affected this defendant's right to a fair trial and the district court acted well within its discretion and in determining that both the infrequency and thirty out of a hundred would have no prejudicial wasn't the foundation for why he was able it doesn't apply this way that was all of the reasons that he gave for why bigger brands do or do not transfer from an object maybe the better way to describe it would be context for a statement that was extremely  on common to recover fingerprints but that is that statistic had nothing to do with whether adolph comment possessed this gun and the government never presented it as a as a counter to some of our officers may have a sprog them with their story but look at the science here and this is a negative fingerprint witness who was just merely explaining there was no fingerprint but it is rebutting this defense argument that we knew was coming to a close even though this was a matter of police corruption that these officers violated the civil where you would be going in you know gun cases was as a denial of a possession of the weapon i don't know if it would apply in all gun cases your honor but here we were aware through openings that a and from the prior trials while we were aware that the defense was going to be arguing that these police officers lot and this was in a situation where of constructive possession or that there was a gun present ye the theory which apparently it is here that there's a police officers are framing somebody by planting a gun and that's you and you're here you know it because a series of trials that would allow the government to suggest that the weapon that is a question is is along in the case even though there's no fingerprints i'm just i just just want to see where you're going with that i'm sorry your honor might not understand or question common says he didn't have a gun and the gun that is an issue has been planted correct so under the theory that every planet gun probably has no fingerprint right if you're going to extend this theory of conspiracy right so in aid of that rebutting that theory of that or the theory that there's  end in overwhelming number of them we would because of the reason the district court articulated which is that there's a common misperception about law enforcement unrealistic capabilities with respect to forensic evidence so when you couple that common  misperception with the fact that there is no fingerprint and in this specific case where you haven't gone in someone's pants and they're caught in a reactive situation where the police officers come up on top of and there's no chance to clean the gun there's no possible explanation that common arguments they did make the argument that he did not touch the gun that's the only argument with respect to the fingerprint it's it's the larger argument with respect to the police corruption that your arse with respect to the  misconduct arguments a trial the government did not claim we err by failing to grant a mistrial as a result of the government's arguments arguments from bottle arguments when the defendant did not object first the government did not shift the burden of its rebuttal argument on like the cases relied on by the defendant the government did not present the false all to the full false ultimatum of having to find the officers as liars or corrupt well or anything to acquit came pretty close i mean that they drew the start line and said this is a case in which somebody is lying and you have to figure out who it is absolutely and that comparison i think was addressed by this court's opinion in amerson where you can discuss the fact that it's a very difficult case and there is going to be a credibility contest here and it's coming down you can't marry those stories up but here the government was careful not to put the jury in that box of having to decide are the officers liars or is the defendant guilty it was a strong argument there was of lot of argument there was sarcasm in the argument but it did not cross the line of shifting the burden and in fact the jury was reminded during the rebuttal argument the government bears the burden and obviously it multiple times by the district court's instructions with respect to the government's statements with respect to cell phones and defendants not observing the arrest the excuse me not observing the arrest and asking the officers about why they were doing what they were doing to the defendant those were misstatements as discussed in the brief they do not rise to the level of reversible error for several reasons one the defendant did not object to they were two of numerous argues that the juror on why the jury could reject the defendant's witnesses accounts of their arrest three before and after the closing arguments the district court struck to the jury that the arguments of the lawyers are not evidence and the misstatements in the context of the trial i am for the rebuttal argument itself do not support the conclusion that the defendant was denied a fair trial and that the outcome of the proceeds would have been different for those reasons rather than the reason stated the government's belief the government would respectfully request of this court affirmed the conviction presents an opportunity for the circuit ted to establish clear pesantren this question it comes up again and again and again the government often intrude introduce the chicago police department technicians fingerprint technicians to to discuss eliminate doubt that the prosecutors remarks unfairly prejudice the jury's deliberations our position is we can't dismiss any of the misstatements which the prosecution concedes for the most part