good morning your honor as we please the court mr graham was convicted of unlawful possession of ammunition one bullet that was found in an orange plastic toy gun that was incapable of firing and bullet his defense at trial was that the government failed to prove that he knew this was a real bullet the evidence supporting this theory included one the fact that the bullet was in an obviously fake orange plastic toy gun mr graus statement that he had found the plastic gun in the park and the fact that the police at first until they examined it didn't think any of this was real the store detective thought it was a water gun and one of the arresting officers told mr gravatt he would probably be released with  but the district court which mr grauer responded likely or something right but we have no idea what that meant mr graham had it and he was a convicted felon he had a prior record and may have not been within his experience that he had ever been released  and of course there's no actual evidence directly evidence of his mental state because what he told the police about this is hearsay he didn't testify so we were trying to draw inferences about what was in his mind that how does the fact that such things fake bullets exist and are in the marketplace tell us anything about what he thought there's no evidence as to whether he had ever gone on the internet whether he had ever purchased fake bullets whether he'd ever seen fake ball it's so why does the mere existence of this material tell us something about what's in his head why is it was because the government the government also had no direct evidence and they were also relying on an assumption that because it looks real of course he knew it was real and so this evidence whatever rebutted the assumption to some extent and we have to remember that the relevant standard is only requires that the evidence have some tendency to make a fact of consequence more or less probable than it would be without the evidence of what he had in his pocket was a bag containing what on chemical analysis turns out to be marijuana and he's that which he says he found in the park you could put on your paralegal to testify here is the bag of oregano that i bought in fairway and because that would show that there are things that look like marijuana and the people  are sometimes sold to cheat customers pretending it's marijuana that would be the role that the existence of reagan know is relevant mental state of the us that's a different question is because everybody knows that there is there are the things that could look like marijuana reckon howard t and that could be argued that could certainly be argued whether or not that that would be admissible as evidence would be necessary it probably it might maybe it would be admissible or maybe i don't know that's a different question what we have here is a situation where the jury without this evidence has no reason to know some some jurors might now some might not but that's not in the evidence that this the existence of fake but real looking bullets counsel studiously avoided asking the expert the a t f agent who was on the stand as an expert to assess these bullets and tell us are these fake or real and a hosting pointed out the paralegal is not an expert and can't say whether they're real or not and as he put it i somewhat cryptically but i think his point is there's no authenticity on the internet anyone what the evidence is is that the paralegal bought something that some anonymous website represented was a fake bullet and that representation is hearsay your honor the defense counsel did show these bullets that the agent asked him how he could tell he know the weight i can't say for sure they're real because of the weight right it was no actual testimony where he was asked do we you've got to do make your assessment and tell me is this real which might have been useful even as a questioning of the experts credentials but either defense counsel didn't think of it or was afraid to do it well i don't think there was any question there was any fear i think the defense counsel believe that that's what she was doing she showed that she showed the agent these these fake bullets which were fake they didn't have they didn't have the primer stamp and things like that so she she showed him these and she asked him how could you tell that this is this is not a real bullet and he said well this one feels light it they look at it looks a different also feels light so it was just understood that these were fake i don't think she if that was an oversight if anything but the paralegal was going to testify to the fact that she went on amazon and the amazon ads are in the appendix and order and there are multiple multiple ads ordered for you know fifteen fifteen or eighteen dollars for six replica bullets they're sold as replicable as they're not real bullets and that is as much authenticity is required this is this this is it's just to show that these are things that people can buy there's a marketplace for these things and this would have rebutted the evidence that was in the case which was the the government's evidence came in on the government's case which was that according to agent stern the only fake bullets he had ever seen were fake bullets of the type that law enforcement had simulation used in police training or formerly live rounds that had been converted into souvenirs that some officers were around their necks and necklaces and he said he had never even seen these he had never even seen he changes never even seen it and he is an expert in this and this is job to know about bullets and testify in court why on earth would we think that mr brown has seen and has some knowledge that there are market places and think well because the defense is not just stuck with whatever the government witnesses say the defense has a right to put i know you're just i'm sorry i know you got stuck with it but you just represented that as part of how we're going to assess this and i'm just asking why would we think what other than speculation links what the paralegal bought on amazon to what mr ground thought he had in his pocket well the on it wasn't we didn't have i said we argue that we didn't have to show that mr ground knew what the paralegal found or in or specifically or had ordered things or no it's just as an omen  t this is that this defense that he didn't necessarily wouldn't he wouldn't have necessarily assume finding a bullet that looks real in an obviously fake to a plastic gun he wouldn't have necessarily assume that this was a real bull this that the evidence that this kind of replicable it is out there that it's widely available that it's cheap and it's available to the public not not just to police officers would have furthered the ball to some extent on that defense that you can't just assume that he knew the bullet was real that come on look at this look at the pictures this is a real bullet it must be real in fact that was it so argument on the rule twenty nine motion now by the time it came along to summation it added well it was modified he must have known but there was no evidence that he knew there was no evidence from the outside in fact the government conceded that you know you'd have to examine this a bit but asked the jury to assume that he must have examined it and there was no evidence for that it was from the outside it just looked like an orange plastic water gun that had some tape around one or two parts may please the court good morning my name is louis pelligrino i represent the united states and i represented the united states in the proceedings below the trial court below the rizzoli one question in dispute and that is whether the defendant knew that the ammunition he possessed was ammunition within the meaning of the statute the government's evidence at trial overwhelmingly proved that he did know that the defense suggest that the only argument that the government made in this regard is that the bullet looked real therefore it must have been real but the government presented more evidence than that first the defendant was arrested at macy's what carrying a plastic gun modified to be a potentially dangerous weapon was not a movie prop it was not a hollow in costume weapon it was a plastic gun modified to be something more dangerous that was evident from someone who tried to modify it to make it more dangerous and take it nothing in the government's brief relies on the testimony of officer boyd is that right it is not your honor ever there's been some discussions both the both your expert said that this was not in fact dangerous the this was a failed attempt to make the gun  and the other officer give a very different account of what happened to the bullet during the packaging of the evidence only took a couple of those points one is that it's not correct that the officers were not concerned about the dangerousness of the weapon at age eighty five in the appellate record there's a discussion with officer kerrick immediately after he once again there's something of the distinction one officer is pointing it at the other one which i off and i think all of the officers that's before the exam and by the time they're done examining it it's you probably get a d t in vienna here this afternoon you know they're kind of eleven and scratching at what is pretty ridiculous piece of equipment that this fellow had i think that's right however special agent stern who is the expert here and testified about the firearm testified that he was not able to determine whether it was in fact a firearm or not i think he could look at it and see that it was a plastic gun and it had that it had been modified but he had to send it to the firearms technology branch in west virginia to make that definitive assessment and when a t f did that assessment special agents turned testified that the assessment was it was in fact potentially capable of being a real weapon in so far as it had all the necessary parts or mechanisms to make it a real weapon and the only reason that it was not was because the firing pin did not strike the bullet with enough force to actually discharge the propellant and shoot the bullet out of the gun as opposed to just the entire cartridge out of the gun which is what happened so in that regard it was a sinister device and if you look at the depiction of the weapon in the three forty seven it's immediately apparent upon looking at the weapon just upon visual inspection that that it was a device that had been modified for a more sinister purpose there's black electrical tape wrapped around the outside of the toy gun special agent stern testified that the gun also had a longer barrel that had been broken off i don't know whether mr grout would have noticed that or not but he certainly would have noticed the thirty eight special bullet sticking out of the front of the gun rather precariously and mr groused defense team adopted the position that at the time he came upon the gun in the park it was in the condition in which he found it he didn't inspect it which means he would have just picked it up with that ammunition sticking out of the front of it and jammed it in his pocket despite it being wrapped in tape despite the bullet sticking out of the front like that and then his defense was well i thought it was a movie prop but that looks nothing like a movie prop which would have been created to resemble a real firearm  furthermore it's important to note the additional evidence that the government provided regarding mr graef state of mind and those are mr gryce statements mr graham made no less than six keep post arrest statements none of which by the way support his contention that he thought it was a mr grant never said i thought this was fake why are you arresting me for a fake gun in a fake bullet in fact he said the opposite he said it's not mine he said i found it in the park now why would he say that because he's disclaiming ownership of  it he knows as a prior convicted felon and no doubt he was instructed at some point when he was convicted of that prior felony that he in federal court your instructions you can't possess a firearm destructive device or ammunition he received a similar instruction in you that possessing this thing he was going to get in trouble that's why he said stop mine he told not one but two officers that he found in the park and then he said i was going to turn it then and the defense as well that was just joking but his next statement about  that he must have some kind of substantial criminal history and might not that be a reason why he thought he wasn't going to get a desk appearance ticket is that even for a trivial crime such a crime by him might be taken more seriously and there al these are not these are inference is that people can draw let's not get carried away with overwhelmingly or fair enough here are still the the jury was presented with circumstantial evidence that they considered that evidence was presented to them throughout the trial and then discussed at closing and why is it such a big problem to let the defense put on their circumstantial evidence such as it is well the government if you look throughout the record did not object to the defense correct your honor that's right but that's not actually a defense under nine twenty one under the statute and the reason for that i think is in the plain reading of the statute statute refers to ammunition cartridge cases primer bullets or propellant powder designed for use in any firearm all of those things with the exception of the first the ammunition is the entire package or components of ammunition and therefore under the statute mr grou change the facts just a little bit if he was in possession of just cartridge cases designed for use in any firearm if you knowingly possessed those he could potentially be charged under the statute right but if he possessed something that he knew to be or that he believed to be a replicable and that's not covered by the statute well you say it is because i don't remember i don't think i looked at what the government's requests to charge were but the actual charge that was given certainly told the jury that this was a defense it did tell them that yes and we so back to my original point which was we did not seek to prevent the the defense from providing any information about their defense that it was that he believed it was a fake bullet but we but we did draw lines around the point where they wanted to admit the paralegal because that was simply too far and we talked about the judge when she talked about that before with the  introducing not evidence would have been sort of a rabbit hole you're talking about an entirely different analysis from a witness who never had spoken to mr growl was not going to relay statements by mr grout as in the scully case or  example in the own a new a case which was cited by the a talent in that case on a new one it's there are two differences one was on the newman had made a statement at the time of the arrest about the diamonds so about four days into his custody i think but he said to law enforcement oh you've that's heroin they told me that i would get five thousand dollars if i smuggled these diamonds so he had made that statement or some evidence in the record at least support that theory secondly on an im a want to introduce an expert on diamonds and of course an expert can rely on opinion hearsay information provided to them by lawyers it's a much broader scope in terms of what they're allowed to testify about here the defense wanted to introduce the paralegal testimony  castle i just have a few points first the government did not even object to the calling of the paralegal the defense was just discussing scheduling with the judge and the judge sue isp on today rejected introduced and the key chain the court allowed the key chain which was also bought by the paralegal online but didn't allow the four replica bullets why the only reason is that the government did not object to the key chain and it objected to the four bullets there was no no no reason given but the four bullets were much much more helpful to the defense that seems to be the only discrimination between the key chain which had what was a father in a key chain it looked obviously fake between that and the four replica bullets which looked much more real when looking at it right now i'm not so sure is to me it seems that it is debatable whether it's fake or not it's just may well have started out as something real and then somebody inserted the hook that holds it on the key also the jury had no idea where this came from because the paralegal wasn't allowed to testify so what the jury did not have before it was the simple fact that this is  thing out there that there are replica bullets that they're on sale for very little money on amazon that they're available to anybody who wants them on the boat was no wasn't never well that was in evidence but we have the jury had no idea where it came from idea where that came from so and that was also much much less supportive of the defense because of the way it looked and an agent stern agent stern testified that he didn't think this gun could fire anything he didn't think it was real and i think even tried to fire it tried to test it himself sent it to the lab just to make sure he testified that if you pulled the trigger at the bull it would just fall out that there was that was there was nothing even close to being  here and finally on the moment to move decision there were two two issues one was the relevance and one was the expert the whether it was whether the expert testimony was admissible under seven o two on the relevance decision the court's decision was based on the tendency of this evidence to show that basically this kind of diamond smuggling did exist it was a thing just like here the we wanted to show that this kind of replica did exist that it was out there