morning runners peter johnson only half of mr kalvin darnell woods you pellant me please the court the issue before the court is whether the government produced a vision evidence that the weapon used during a robbery was a fire relevant only to the issue of twenty one one three d whether it was a dangerous weapon when you look on the other hand as to what it was designed to expel a project out by action an explosive  the evidence evidence in the record shows he's the second date on his job on horn and only said that he had seen a gun once before when challenged more father defense he can describe the make of the model of the gun whether it was a semiautomatic or evolve or or any details about that weapon under those circumstances he's not familiar with a gun cannot describe details with guns in general cannot describe details about the specific language of the statute of course but we're stuck with the cases by the up harrison west at all where he was not much analysis in the cases and if you go back to the statute and you look at the language you really can't tell th that they thought it was a dangerous weapon but when you turn on the other hand to the nine twenty four see the specific nature of the weapon especially in a world today with a confused and a weapon could be anything under the definition of night twenty four good morning now if you are from behalf of the government and made these the court in this case the government presented the testimony of five different witnesses four of whom described specific characteristics of the gun you can also presented detailed digital photographs and say you know what it looks like a thirty eight or thirty three thirty three seventy five skinny or forty call towards forty one and so we actually have what we had in harris which is somebody familiar with guns looking at the gun which is all that happened  harris just have so happens that the defense expert in this case was looking at photographs and said this is what the gun looks like opined on guessed at the at the actual caliber gun so what i think here is that we have at least as much as we had there is here although there was some difference of opinion among the witnesses as the type of gun possessed there was no question that the government made the necessary showing the real firearms may so this court has held that even when you've got a bunch of witnesses conflict about the type of gun there's no gun in his hand the entire time while he's in russia while he was grabbing at the government her and don't have a he wasn't driving that person wasn't driving the car there were three robbers one of them one other was driving a car with her after seeing her i think the best  big one said it was metal once it was shiny but that was the second gun the witnesses said it was shiny it was talking about a second gun that was taken not this one that's pictured here but it was taken in to c o two guns you know we've got the ads that there's two replicas you haven't got the guts well you might not because you're really a nice person don't you know one of them money and don't really want to hurt anybody or you might not do it because you're afraid of getting caught and the consequences are you might not do it because it turns out to along with the witness markers like a real gun i know you think so but i'm kind of funny because one of the reasons is because if you display a gun that closely you give the person an opportunity to examine and perhaps determine that wait a minute this is a plastic gun so if you're pointing a gun at somebody is face you giving them an well within the harlem way above western al because we've got the digital pictures and there were no pictures in western and conflicting accounts and it counts in this case are striking the consistent you got two people saying it was black you got a number of people saying what it was made out of of one of the guns being pointed at a seven month pregnant teller pointed at children pointed up at a customer walked in the bank and tried to get out so we got that surveillance photograph showing the robber pointing the gun at the face of the teller that's what you have in harris that's what we have here very detailed surveillance photographs there are a bank customer look closely at the gun and the robber bumped him now that's what we have here with combat again you have him looking closely at the gun and a robber buntin said he felt the gun against his chest and felt part third you have a witness familiar with guns in harris who said that the weapon was gun metal and appeared to be either a thirty eight or forty five now the defense says we don't have it here we do first of all we have with this is saying that the gun was made out and that second of all you have the defense's own expert saying that the gun looks like a thirty eight or three fifty seven magnum or colt forty one tours so we have absolutely everything i have ever there's also in that case there's also th suggestion that they have it was hard and the defense expert in this case said i think the hammer is probably not cocked looking at the gun so you've got everything including evidence from by the by the defense own expert that you have a hairs and i think if you look at these pictures it carries even farther because there's no again i think that came out during the testimony and so what you have here is you have everything we had in harris in this case and so i don't think that there's just no i know the defense is trying to shoot the gap between hairs in this case but there really is no gap in you you've got absolutely everything you have in care and in in harris and more and so if you look beyond the circuit just as sort of make sure we're staying consistent with the other circuits you've got kids after case we're everywhere it was sufficient despite the fact that there was no familiarity with the evidence you got case after case where it's witness only no surveillance photos of grass at all one witness in any of these cases the third circuit in the fourth circuit is enough to convict somebody even one twenty four s and if you and if you look at testimony about caliber there's absolutely no testimony about the caliber of the weapon in western all if that was important i think it would be in there moreover most circuits don't have any testimony about the specific nature of the weapon and so if you look at the te in that case you have precisely what we have here in told us in the tenth circuit which is evidence and one person from a with guns saying replicas can look like real guns nevertheless the tenth circuit held that the evidence was deficient support the one twenty four so you can't so i think i'm saying is that everybody agrees and that's right in context because michael was going to say the same thing you can't tell beyond a start to a scientific certainty whether the gun could fire project or not by just looking at ok but we don't have to prove conflicting evidence gets results so here you have a defense expert the defense that's the jury could disbelieve the defense expert entirely and i think given the fact that it conflicted with what the witnesses say we have to presume that they did on this little this level of deference and sufficien that although you can't tell without handling the gun the jury can understand the use of the gang contacts to make inferences as to the use of the gun or the replica the item reasonable it's very reasonable in probably and certainly beyond a reasonable doubt that that's a real gun if you see it on a movie set it's probably on reasonable doubt that it's a fake gun so context matters in the defense expert admitted that material matters to them what it's made out of think that the context doesn't matter and it skews the government's favor because this was a takeover a bank robbery where you're really trying to make sure nobody moves where you're going to devolve and it's more than one gun really the reason i think the not have to prove every and this court has held the government does not have to prove every just prove every possible theory except your argument has to prove that there was a rational basis for the jury so concluded and they really did think that the court must look at martinez jimenez in that case there was a fake gun but if you look at the facts in that case the people that are familiar with guns thought it was real and i think it's important that twenty years ago i think as well the government talk looked at the photograph and i think that's important to look at and to examine another thing that it's all saying about the photographs the government is focusing on the photographs but again the number of photographs doesn't matter  looking at the photographs and he's saying clearly i can't tell whether it's a real gun or if they can know whether more importantly whether it's the definition of the of a firearm under the statute that's not enough and as well with people we know that the t weren't looking at the pictures the government also focused on the defense expert but again the court must be reminded that this is this is of all twenty nine motion and and should be evaluated with the government's evidence the evidence that the government put on and when you look at it that way there's no evidence related to the specific nature of the weapon who were asked in a court is to really go back to the statute to look at the language of the statute and see whether it applies here i know that many courts have me look at it and said well the government can't do this but that's not what they are now says that the court has to look at the court should make excuses if the government doesn't have the evidence or can't prove it they shouldn't bring wouldn't that wouldn't happen in the context of the toy so we're asking the court to go back and look at the statute and when you look at the statute you'll see that we got the evidence is insufficient and even looking at the cases that the government cited in westerville there was a deputy sheriff that was at the scene assuming family assuming that he's familiar with guns that actually fired a shot at the individual that didn't person from the the facts in that case a person was familiar with guns they showed one that they talked about the caliber of the gun in fact that they are excuse me  talked about it being black will still work or different colors one is inconsistent evidence and when people are unfamiliar with guns i think the court needs to look back at the statute and see whether there was any evidence to show me that it was capable