twelve sixty five fifty eight united states of america versus coral sea iran oral argument not to exceed fifteen minutes for mr thomas for the defendant a and of course they're all preserved could you address the most the strongest one i believe the strongest strongest issue  testified that he was not involved were garcia the search of a residence there was a vest a gator that was subpoenaed and we found out during trial that that investigator was unavailable because he was away on vacation  based upon that information we had tempted to submit sort of fact documents from the massive county circuit court showing that when they went next door to the rest of his located five ten greenwood and they went there looking for the defendant mr here in this matter once they were they are they located two individuals inside the crimes is who allowed them to come in and look for mr hare in that residence while they were there they found covered the back door the track to keep people out but he tested just to hear him testify that he had trouble keeping people from being able to come and go in the residence i'm still not seeing what the relevance is the relevance was our contention was now evidence of what what was in the house next door because the house because five twelve is the one that's relevant to your client you want to admit evidence of five ten contents because five twelve had an open back doors at the idea because yes one because had open a bag and not seen the relevance then i mean well what it was is it was to show that mr herring didn't did not have any knowledge of these drugs being present at five twelve and then our our theory of the house being used by other people neighborhood to store drugs now that was act the defense's theory i think a lot of having stuff somewhere else show that storage place well i think it goes towards show one that the neighbors would have access to the residence in the find if they found exactly the same exact substances right next door is what access  demonstrated by well i think this is of similar i think that goes towards taxation i think another part of it is the testimony from the investigators that other individuals who were not known to them they saw enter coming go from their home at five twelve during the time when they had surveillance on the whole review of the of the evidence exclusion on an abuse of discretion basis i believe it is your enemy how is that an abuse i mean i can i mean it's a little bit hard for me to grasp the connection but at least it was within the discretion of the judge to say that there was no to no connection while believe so but i'm sorry i  believe so but it is a abuse of discretion our position is that the air would be harmless because it prevented the defense from being able to present an adequate adequate defense in the case  prevented the defendant present any evidence whatsoever i mean as to be related to the case right i mean i understand you i believe based upon our defense and in the testimony that follow from not only mr heron but also from the owner of the house and this person about the problems that they that they had had with the house not being secure i think that went directly towards the defense's theory were for guards to other people accessing the house and using the house and for the storage of these type of unlawful went towards the sentencing and the matter more specifically the fact that mr sharon's offense level was increased by four levels  position the position of the farms in connection with another felony offense and increased by another four levels for the number of farmers that were found in the home our position w guards to those issues were bad first of all there was no showing that the farms were possessed in connection with the film  offenses there was an act that they're located in a house that has a lot of drug paraphernalia in that in their sufficient no you don't actually there's case law this is just be located in the home it's not enough to to find that far as we have many other well firearms to which were loaded and a lot of drugs so out like there's some drugs upstairs and there's a pistol you know in the in farms came from how the farms got there mr himself testified that the hog farms were put there without his knowledge by individual by the name of timothy spencer mr spencer testified that he traded  farms to mr herring in exchange for crack cocaine so there was evidence from which the judge could conclude that it was mr heron scott's yes there are two different guidelines i  conjunction with the transaction with the guidelines standard and i believe in this matter that the standard was  the drugs on their work family residence we are denied position is still that under that theory there was no proof no evidence in the record to show that that's what was being done in this matter like the one  there was one controlled by that was orchestrated by the investigators here at no time was any gun song shown me to and used in this this is no indication that these guys were every used by said i traded these guns for crack cocaine a cork and rely on that right if it wants i believe they can yes john if it's his guns he presumably know they were in his house well that's again that's that's something that's disputed about what he knew and what not they were called for the united states of america of the defendant has raised a number of issues i think they were adequately covered in my brief though in my subsequent research i found i had originally argued in in the sentencing at the first sentencing hearing that what had basically occurred was not the possession in relation to the fortress theory but that it furtherance of a drug trafficking crime likening it to the firearms being cash that would be used to purchase something as the drugs and there was  a case that went to the supreme court on one twenty four c the issue that they were addressing was the use and there was no use of the farms in the evidence in this case but  the case in this court the united states versus frederick four zero six fed third seven fifty four it dealt exactly with that where the acquisition of the firearms in exchange for drugs was held to be in furtherance of a drug trafficking crime in the context of nine twenty four c and i would submit that that same type of  the proximity of the guns to the drugs there were ammunition was in the kitchen with the drugs in this in located next to each other oh it's an drugs but no guns no guns at that location but the caliber of the ammunition matched the caliber of it least one of the firearms that were recovered where were the firearms they were upstairs there were there were two pistols in a call closet one of which was loaded and then the rest of the pistols were in a bag in an up stairs bedroom is those up stairs in the back yes so what do you have cases which say that you know a loaded pistol in on the same floor as drug paraphernalia is enough is enough or do the cases like that say it's not enough there is a case and i can't cite it offhand and i don't know whether it's in in my brief that where it that's the the basis of i think the fortress theory is that not necessarily was the firearms used in the drug transaction or it was possessed in furtherance of the drug transaction there is still good law in this circuit on cases like this i believe so y to the four thirty yard right was it was the theory that i think counsel says just having a gun and drugs in the same house is not enough that is correct thing there's more here because of the number of guns or the or the closeness or what's what is there that's more here the proximity of the guns to the drugs the accessibility of the loaded firearm in the hall closet the drugs found within walking distance short distance from the hall closet in the bedroom where there also was ammunition and as well as the ammunition with the drugs in the picture this is a factual determination to be made by the fact finder yes