good morning your honors david barnes fine is my name i represent damien phillips in this matter i'm asking this quarter specially to reverse the decision of the trial court finding that mr just yes or didn't have standing at the summary judgment phase of begin with the brief commentary on the dominion and control test i believe that this test should be limited to matters that pertain to real property and automobiles the reason for this your honour's is as as this court pointed out in the united states versus morgan case the intent of consistent from the time of caesar to the president that it's it has been his currency and his currency alone moreover his brother who's the lefty if you will of the storage locker on equivalently states that he gave his brother access to the storage facility in order to deposit his property as i believe he was moving from north carolina to virginia to engage in a teaching employment that was submitted not only in his claim that certainly discovery reflects   this notion in my reply brief that when courts are faced with a scenario where there has been consistent testimony and some other evidence of ownership put forward but that is sufficient at the summary judgment stage well the you have the two brothers basically just openly declaring the same thing two thousand one hundred thousand dollars is discovered in the locker and of course if it's related to drugs it's gone if the other brother it belongs to the other brother they both can have it or the other brother can have it or whatever there's nothing else really other than the ball declaration and not only that you have the two circumstances that go the other way one is the circumstances of the money among the drug paraphernalia and residue and that type of thing and the second thing is the numbers don't add up he claims he saved it and if you add up every number he still wouldn't have enough money if he saved every single penny over and above the expenses he listed and he didn't list lists six hundred dollars monthly payments for the mercedes and this type of thing but to everything he listed in his affidavit you list that he still saved every penny he still couldn't have gotten two hundred thousand dollars and so it's  to me there is it's it's so attenuated i mean the it's just an assertion that's my money despite the fact that it's in somebody else's locker it's wrapped in cellophane it's two hundred thousand dollars   basically what the what the presumptive base level was he didn't say what he making he didn't say what his status was in those situations i mean and then you had tax returns for some of those years where we had him and there's  one basically make him any money but if you add up the numbers i did exactly what judge martz did it is literally impossible for him to have saved two hundred thousand dollars and then you say he started saving cash in two thousand and nine because and it measuring for purposes of argument for any purpose that they're not tax returns for every single year and there's not a tax return of vailable for tax year two thousand and three but you've six big years or something in order in that one year when the history was he wasn't barely barely making any money anywhere it's his biggest year was was what forty thousand dollars in two thousand and eight you know that was it was  which is not disputed we don't have a tax return for that year two thousand and three because it's been destroyed if you do have forty thousand dollars in income how likely is that i don't know that someone would want to convert all legitimate five judge wilkinson i would agree that is not the way i manage my finances i think i think justice in this case would invite  understanding or appreciation that certain people conduct their affairs differently some people are distrustful of the government some people always normally folks that engage in this type of but our contention is the vast majority of the currency in question was actually earned during that tax year two thousand was but it was a pro football contract right right that's phelps subsequently became disabled i believe it's from the n f l but that clearly shows that he was employed in that capacity and i believe that settlement check was for over forty thousand dollars now does that get you to two hundred thousand dollars now but i think in feeling the evidence most favorably to mr philips you have some blanks and you certainly have an undisputed contention that he  on the lease itself it's this there's no contradiction in the evidence or there's nothing to contradict what irony opes is saying and to be honest most courts have  determined that when there's been consistent testimony about ownership and then some other evidence so forth and we're talking about the summary judgment stage and i understand that inquiry continues through the i couldn't find one that was the peril of this and your honor i would i would argue that these cases are very fact specific you know necessarily i do think going back to the said that there was no tax information for the year two thousand and three the year that mr phillips claims to play it for the n f l there is no tax return there is however an i r s account transcript and that's on the record of in the join page thirty four and what that shows is that mr phillips file the tax return in march of two thousand and four for tax year two thousand and three and it in which he reported earnings of twenty thousand dollars two hundred fifty cache itself the the storage unit also contained two digital scales the two hundred thousand dollars even was in twelve vacuum sealed bags and there's never been an explanation from mr philips of why he would maintain his cache this way in twelve vacuum sealed bag how did he come by i mean how does he say he got it he says he earned it playing for the n the arena football league and for very simple oilers and no one no your honor not only is there no evidence of that the evidence in the record actually disputes every claim he has of having earned money and the court referenced one year in which he made sixty thousand dollars that was in two thousand and eight that's at the record so in the record of page forty one but that year he had business expenses of fifty thousand dollars so even crediting that and by the way he claimed when i added those up i assume that the business records were automobile depreciation and so i gave him credit for all of that so i still came up fifteen thousand for two thousand and four i mean this is a guy that had two foreclosures on this our he had to turn his car back to his father not making payments and he just living from hand to mouth and i'd like to see anyone who has saved two hundred thousand dollars in cash that kind of financial circumstance i mean just before i it's common sense yes your honor and all these facts were before the distort they were provided to the dish court the district court cited them both his modest income and his financial hardships and in determining that he did not have standing because he could not show ownership the district court cited all these facts and these facts the documentary facts the his income was twenty thousand for that year and there was another number he gave but the record shows the only evidence we have is for two thousand and three is twenty thousand dollars yes roger that's absolutely correct and so on the point of standing regardless of which test is use the district court used the colorable interest test pointing out in a footnote the uncertainty regarding the dominion and control test the government's position is that regardless of the different details or so you  plausible and so you determine whether a person has a color or a possible ownership interest and that's a wide ranging inquiry fact specific wide ranging the the dominion and control test it goes further than that there is no assertion of that that was asserted in one of the cases the government side and its brief from the western dish differ genya and the court there found that that the climate had not proven that gets under under the state law was a political that so not the court's point out has there been no assertion of a gift or a bellman or any of these other possible options that might exist but then it hasn't been proven so has it been asserted or proven with any record of evidence to the satisfaction of north carolina where for the forfeit ability on the merits holding there is no documentarian evidence in support of mr philips this position the undisputed leader is actually a little bit more favorable to you because not only is there no  football team was fifty thousand dollars and yet the check was forty thousand dollars he says that the hotel income base income for the bills was two hundred twenty five well i'm assuming that takes him all the way t playoffs he achieved all kinds of incentives are forth like this but yet the i r s discloses that he received twenty thousand a year the inherent contradiction i mean that the idea is that it's  you wonder whether he is deliberately fabricating all of this which would of course raise even more serious problems more but it's certainly not an absence of it's evidence to the contrary yes roger that is correct and it was his burden and that's an important point is that it is the claimants burden to put forth evidence to establish standing and as as your honour's pointed out not only did he not put forth evidence in support of his  and the government would respectfully request that the discourse be affirmed on the standing point and of course on the second holding as well as to the merits of the of the substantive forfeit ability or yes right unless the court has any further thank you your honor for the opportunity we heard once again i wanted to briefly follow up with some of the evidence that the court consider and in my opinion did not and took that or made the assumption without hearing evidence without conducting an evidence for hearing that wall course mr phillips wouldn't have a long amount of money because his wife declared bankruptcy i think that's a unfair assumption on the trial court's part i think it is concerning evidence not in the light most favorable favorable to mr phelps quite to the contrary i think modern day time show that people to clear bankruptcy for all kinds of reasons some of some people declare bankruptcy because they don't have two pennies what year was and your honor of course that's that's accurate if you look at the district court's holding and the rationale behind it it doesn't focus at all on his financial means and what income wouldn't if they were thrown out of jobs he also had two cars that he could then make payments foreclose i mean it starts to add up this man not only does he failed to advance the evidence supports his position but the evidence that's in the record shows that he couldn't and it gives you a certain amount of confidence in the conclusion that there will not be the op you ask him as to give him the benefit of the doubt but we can't in giving him the benefit the doubt we can't supply a it's we can only take the evidence he has and accept it and when we accept it it is inherently one point four two thousand and three you say the potential base salary i think the greatest amount a person in his position could have received under the contract was two hundred twenty five thousand you don't say what he earned now you know those contracts a filled with incentives to go to the playoffs go to the super bowl whatever they get a lot of additional monies for achieving those levels and they're also personal incentives so the  put there's an absence of evidence there we don't know what he made here now if you're looking behind that it's not just an absence we have to just rely on the absence of it but it turns out that the r s reported that he only made twenty thousand so the question is ok give you twenty thousand even though you only had zero because you didn't put anything that doesn't help you doesn't advance the ball i added those numbers in giving you the benefit of extra income just to  you could make the numbers work and they don't work and so you take his numbers we don't need to go the benefit just take his numbers as judgments pointed out take his evidence it's implausible not only implausible impossible and then you get to know the context where we have two hundred thousand dollars in cash wrapped in vacuum bags among drug paraphernalia and tainted with drug residue in a locker to his brother who that money was never respond of course and judge your point is certainly well taken there are a handful of years there's no tax returns filed whatsoever if you look over the last fifteen years and so we don't know what numbers to and insert into those years there are tax years were the terrorist returns are unavailable  don't know for sure and i don't understand in some of the years the i r s is able to produce a transcript that is one of those but there are other years it's just an incomplete picture and so i would argue to those court based on the incomplete evidence we give mr phillips about look at the summary judgment now that might be very different trial and if you look quite frankly at the evidence that the district court relied upon in  finding no article three standing you know i would suggest that not only was it not construed in mr phillips's interest to the contrary it was construed very much against them with