you good morning your honour's james oscar presenting mister flax this morning we've appealed all of his convictions that resulted from a jury trial but the one i want to focus on today the one that has the most material consequences for mister flax would be the conviction for discharge of a firearm during and in relation to a drug trafficking crime it presents a fairly clean legal issue  there are no material factual disputes between the parties with respect to that offense the evidence showed that mister flax was a member of the gang showed that members of the gang sold drug the evidence showed that mister flax carried and discharged a firearm on august th the two thousand and seventeen and it showed that we would agree or we would be for purposes of the appeal that he was a shooter for the gangs whatever that particular term means the evidence also showed that shooters and guns were used or used by gangs for a number of different reasons and this is evidence came from the experts gay members from rival gang violence or problems that they're having with other gangs they protect they can enhance the reputation of the gang violence in the community they can facilitate reprisals for personal slights between a ga members or rival gang members this is from that expert testimony and they can allow members to assert a social standing within the games that's also from the testimony of the expert what the government had to prove in this case with respect to trafficking he was at the location that day looking for ops i think looking for gang opponents isn't there enough there for the true to say look he obviously it's possible he could have been using guns for other things but given the testimony in the record there was sufficient evidence here for a conviction i mean as i said it's inarguable the gun could have been used for other purposes but given the evidence in the record wasn't the jury allowed to apply and in this case it was related to or i guess during in relation to crafting the the evidence did not show that there was that at the time of the shooting there was anything involving d drug dealing we got there there's no evidence that there were drugs present there were no there was no evidence that there were proceeds present there was no into evidence that there was a negotiation being undertaken at the time of the discharge of the firearm there you know the words the presence destructive the firearm did not protect drugs did not protect proceeds did not protect a drug deal in progress there's the government has an obligation to prove at least some relationship to a drug trafficking crime in order for this conviction to stand that there isn't enough that the discharge of the far into place of that later benefited the game it had to be in relationship to a drug deal and there was no drug dealing going on in fact i think the  only evidence of a drug conspiracy anywhere near the time of this just charge was from of months earlier to other defendants in the case for discovery with guns and drugs at a  even just the carrying of a firearm by a gang member even if it didn't protect drug proceeds or didn't protect a drug deal or or the drugs themselves just the fact that a member of the gang possessed a gun and discharged it furnished the reputation game for violence and fashion the indirect impact of making it easier for members of the gang to impeach and drug dealers and there were no cases that i can find where the courts have gone that far allowed that kind of attenuation between a drug dealer drug proceeds and use or discharge of a firearm to constitute something that had over lation shipped to the underlying drug trafficking pro in the supreme court's decision to smack yes when it made very clear that in relation to it's very broad as opposed to looking further and stuff and other words that not exist elaine whatever you want to call it does not have to be very tight under the in relation to language yes that agree with you in that case of course involved the use of guns as barter for drug transactions but the case is also talking about the fact that the involvement of the guns cannot be the result of accident or coincidence and that one of the purposes of the language involving during and in relationship to is to is to allay the concern that a person could be punished for committing a drug trafficking  offense while in possession of a firearm even though the firearms presence is coincidentally were entirely unrelated to the crime another piece cited by the government for days escapes of course a case in which the guns pla if there's no relationship between the presence of the gun and the underlying drug trafficking crime that conspirator can carry a gun for personal protection and not violate one hundred and twenty four c because that went just one step further and sat i'm looking for ops and the reason why i am looking for ops is because they have the corner or they have a marker for error when cornered in this particular area and so if i knock out some of their game members maybe we could take over this area would that be enough in your hero even though there's no pride transaction happening at all in that particular transaction or that particular shooting at least in that in that drugs well there was evidence from one of the current dealers that he had seen mister flex selling street level quantities of the drug by himself in bars in a neighborhood in april several months anywhere violence and therefore made it easier for the gang perhaps to engage in drug dealing of this journal for the questions i'd like to reserve the rest of my  counsel for the government are you there i'm not seeing you on my screen you know i can hear you and i can see myself you're not interested in you know where you are very often guy may please the court good morning you're honest thomas  i think the thrust of his argument or the the the the primary what is argued boils down to is that he might have been shooting he might have shot shane webb because of a personal dispute or something unrelated to drug trafficking but that necessarily also acknowledges the fact that he also might have shot him because of a dog with a drug related motive and the precedent is clear that if there are conflicting h ses and the verdict may not be disturbed here are your orders the the evidence was clear that the role of firearms in this drug trafficking conspiracy was very well established not just to protect drug dealers and their money and their drugs but also to target rivals of the conspiracy and this was necessary to increase the standing in the community of the gang which in turn protected the drug dealers from any sort of armored or disrespect on the streets and so the jury was entitle to infer that mister flaks went to the that restaurant that night looking to in performing his role as a shooter for the gang which was very well established through the testimony of both cooperated mister general and mister mack this is means and it's also true in light of government exhibit twenty nine dollars the video of the events leading up to and including the shooting and it shows clearly mister black's in gage again in an ambush he's he's out looking for somebody this this wasn't just some good got out of hand this was a these were two disparate groups clearly menacing each other mister flaks can be seen approaching the back of the restaurant and drawing a pistol out of his pocket happening in light of the fact that the two groups began squaring off only well after mister flaks approached in affirmative moments so i don't believe that that's how it started off and it's how it ended up but it's not how it started off but even then honor the cooperators made clear that one of the shooters role is to retaliate if if if one of their side gets hit the shooters job is to strike back and again starting to miss expert testimony at the end of t trial drew that nexus clearly that this this sort of behavior is important for gangs to to maintain their credibility on the street and if they lose that credibility then the entire organization including the drug trafficking w suggest by anything i argue that there should be any kind of strict liability here or even an automatic establishment of elements i do think that if the if the if an individual is a member of a gang and he discharges but he but that individual is not a part of the drug trafficking and the shooting does not advance the drug trafficking elements of conspiracy within that gang and he would not be guilty of a nine  dollars sea violation but i do respectfully submit that that is simply not what we have here but i do want to be clear i re with you and i think that there must be a limiting principle i think that the limiting principle here is that the the nex clearly established that this was mister fox's role within the drug trafficking conspiracy and his shooting of shane webb advanced the conspiracy looking for the ops because the because they're there i want to break into the heroin market obviously that would have made the government's job the trial much much easier it would have been a much simpler way but of course that's not the way that drug traffickers talk it's not the way mister flaks talked that night but it gets to the point that the jury was entitle to infer that that was his intent on the circumstantial evidence and  your point about the expensive nature which we argued of course in our very expensive nature of the during and in relation to language is important here temporal proximity does  automatically establish nor prohibit a finding of nine hundred and twenty four dollars c obviously that the standard bit the typical case of the next twenty four dollars c or i guess i would say the more the lack of a better word the more mundane circumstances are that a firearm in a drugs or a firearm and drugs are found right next to each other and the question is whether to what extent the firearm was used but just as that temporal and physical proximity does not automatically create a violation of nine hundred and twenty four c a lack of physical proximity to the drugs and not automatically negated as long as the jury found that the of that th the discharge of the firearm had some purpose or effect or the silicate of the drug trafficking spirity then the conviction must stand and clearly there was sufficient evidence for that for the jury to response was strictly with respect to any drug dealer or drug conspiracy it does roll in the game according to the testimony of the evidence was that shooters were needed in gangs in order to accomplish all of these other potential needs that the getting had for guns and shooting for instance again war mister flaks as somebody who possessed a firearm might be involved in a gang war he might be involved in retaliation he might be involved in responding to a some slight by another gang he is involved in as a shooter under the evidence that the government presented was very broad not necessarily having to do drug dealing and the point is it is important that that if if merely inhance ing the reputation of the game for violence is if it were gang is involved at least to some extent  dealing drugs if that's sufficient to link the possession or discharge of a firearm to the drug dealing crime then the virtually anyone if young man walking around  north side of minneapolis with a firearm if you happen to belong to a gang is committing a nine hundred and twenty four c violation it doesn't take shooting to fit the definition or the the the elements of a a drug trafficking we were not arguing that there were two alternatives in for instance that the jury could make from the evidence of innocence and one of guilt argument is that the jury many of these young men in these neighborhoods are selling drugs from time to time and possessing guns at the same time or at other times and that wouldn't necessarily satisfy being used for drug trafficking crime the fact that he that he was seen