good morning honors gregory like representing jimmy miller on this this amount of snow and i hope to hold on to a minute or two for rebuttal all right i'll try to watch but you've got your clock there as well we'll see where we go mr miller's lack of control or connection to the firearm that was found in the locked glove box of another person's car should lead this court to reverse his conviction i think it's black letter law that from the circuit and others as well that means more than mere proximity to a weapon is required to establish possession the court is reaching repeatedly said you need to have dominion and control either over the the the item itself or the place in which it's found worth or witnesses at the bar that said that your client raised his shirt and showed a firm in his waist what the witness saw and what the witness again i hope you learn from watching the last argument please start with the yes from the at the answer is yes there was a witness you describe seeing a black rectangle in his waistband slightly larger than a cellphone she did not describe a firearm per se she that's all she was able to describe she told other people that that she believed it to be a gun she's the only individual that saw the victim did not testify that that he saw anything  much of your briefing is really dedicated to trying to impeach isn't manga streib the individual who saw yes i am who she and she later described it is gone and so you suggest that she had all kinds of different motivations a la i in your view when did the earliest of those motivations arise i in our view and i think the and the evidences view it appears that she had a motive from the beginning of sort of these the story that's being told in this case her first interactions with the wait staff are early interactions with the wait staff trying to ask the wait wait staff to tell her boyfriend that someone else was purchasing her drinks not this other individual asking them specifically to say tell them she bought me this drank what was her motive to lie then and i'm trying i was trying to tie that into the outstanding bench warrants and i was getting confused her motive to lie there seems to be that she's trying to to to cover something up from her boyfriend from mr carson who ends up getting into a fight with mr miller that seems to be the plan motivation that she has at that it's it's  to him that she's asking the waitstaff to life he asks where i got the strength tellers someone else bought it for me that continues we see that when she asks when she first goes to the same waitress and says please call nine one one  individual has a gun and she says no no no you you go call you saw them you need to describe and she refuses to do that we see it continue while that waitress is actually on the nine one one call repeatedly asking this man just as you talk to them you saw them you need to end you and she's overheard on the nine one one tapes say no i don't want to talk to them she seems to plainly be trying to to structure the events of the evening and and in some manner that that allows a police response without her actually becoming involved in this thing to prevail on the appeal from your perspective which you need to have a decision in your favor both on the the ruling on the prior  consistent statements the hearsay statements in order to have the sufficiency of the evidence challenged or not where are they two distinct issues i believe that the government's evidence even with her statements are is is is too weak to establish because again i think in keeping it we have to keep in mind that when she describes seeing this black rectangular item she she couldn't possibly have seen an entire gun and this is just common sense because it was in his waistband there's no there's no claim by her that he ever took the gun from his waist band if an item is tucked in one's waistband obviously you can't see the other half of it it's you you see only the tip of the iceberg i suppose at best so that's the best piece of evidence the government has of this black rectangular object in his waist so i think the government's evidence is weak by itself but i think the ada one ruling by the district court was incorrect as well and i think once that evidence is taken out the government's evidence becomes weaker still so i would ask the was the witness who saw the object cross examine she was and was she in cross examination accused of recent fabrication she was not it was not directly put to her that you made up this this story recently no she was cross examined on the notion that she was making up the story before she even made the first revelation to the to the other to the to the bar staff and that means there's a difference i'm only on the come point of recent because i think she was cross examined to the point that the motivation existed prior to any statement gerry heard that they could see all the potential reasons she had to cover up and fabricate cor and the jury heard all that they heard her testimony they heard the nine one one call they heard ms restatement why it's hard on the standard of review in the face of that evidence to suggest that any claim on the inconsistent evidence will be harmless and well i think if we look at the fact that the jury hearing this evidence a jury a different jury having heard this the first time it's a different jury the jury that actually heard it that's the one we're reviewing but then in analyzing the standard of review and analyze in analyzing the question of harmless error or prejudice and of review is there substantial evidence that would are a sufficient substantial evidence to support the verdict despite i think the weakness of the government's case is illustrated by the result of the first trial that the evidence the government's evidence was not strong by any measure and i think that's revealed in the fact that the first trial trial hung i having some trouble understanding your argument that well once a hung jury that you get to ride into the sunset on the hung jury in your second trial if you have any authority for that i'm not suggesting that you get to ride on  required the government to prove proximity to the guy found in the glove box the locked glove box i think in our brief we've addressed as well as we can the requirement of this court needing to reverse for that evidence for for the united states i would start by emphasizing that the evidence that the government did present in this case much of which has not yet been touched on i may twenty ninth two thousand and thirteen mr miller received a text message on a phone that was his the message that he received said that i leave any extended clips over there with that forty he responded no just the one that was in there less than two weeks later he seen at the garage with what witnesses described as looking like a gun a black gun tucked into the waistband of his pants he's caught on videotape leaving going into the alley behind the garage the bar where they were and he's caught on videotape assaulting mr carson the videotape also shows two vehicle that doesn't belong to him that's driven by his girlfriend the vehicle is seen about forty minutes later police find it parked the engines off of the lights are off sitting next to a park mr miller seen walking quickly away from the vehicle he of the other items in the glove compartment as though the person who was just in the passenger seat said there so let significance to you does it have that it was locked because of compartment as i understand it correct it was locked and in light of all the other evidence it doesn't have much significance at all because the strength of the other evidence is enough to support the jury's verdict they were basically faced with two possible inferences here either mr miller is the unluckiest person in the world and i had a text message describing the exact gun that they found he was described by a witness having a gun all within the short amount of time or he possessed the gun and i would say that the reasonable inference here is that he did possess the dine a reason he may not have been the which direction was it pointed to barrels again was facing the driver as though someone sitting in the passenger seat took it out in place they're going to stop for one second it's not going to affect how much time we give you but the clock sure if our were sitting in the passenger seat of a car and i was putting a loaded weapon in the glove compartment i think the last thing i would do is have the barrel pointed at me well it was point he knew that he just didn't observe the felting mr carson he gets into the car and either him or his girlfriend whoever did it they had forty minutes between a ten they left the garage and the time that they parked the car they put that gun in of a locked it up and he walked away from the car because he knows the piece xander sticks it in the glove box and here we have d n a evidence that doesn't do anything to implicate him you're going to say it didn't exonerate him either but of course the standard is beyond reasonable the standard is beyond a reasonable doubt  but on review here this court's role is to review reasonable inferences and draw that inference is in favor of the verdict and assume that the jury drew them in that manner and i would say that yes that is true there was no a or fingerprints on the gun i've cited cases in the brief and were there similar circumstances no fingerprints on the gun it's just money at trial was also that it's very uncommon to actually find fingerprints on a gun due to the texture of the gun so it's not unusual that the gu didn't have fingerprints and the evidence that they did have to not exclude him as a suspect so that's just one piece of evidence in this and i would say a lot all the evidence that the jury submitted and it's heard that the not the evidence was also that she didn't the that detective waters when he showed up to talk to her to serve her subpoena he informed her about the warrant she didn't know about it and he said  that he didn't he didn't tell her he would do anything about it he simply said you need to take care of that that motive she was examined about that and it would have arisen long after the night at the garage i would also  point out that the nine one one call also rose after most men just see a total lease jan wall street who was standing back by the board backed by the door that she saw mr miller with a gun and regarding the comments about having her waitress to lie for her but even if all those alleged motives are out there it shouldn't prevent the government from presenting evidence a prior consistent statements that arose are or were stated prior to the motive  unless the court has any specific questions i just asked the court to reverse mr miller's convictions thank you no further questions we do have good briefing on this and thank you both for your arguments this morning the case just argued of united states is versus miller is submitted