thank you for having me now mr maycock advises me that the council are present and they're ready to proceed we had two appeals that are scheduled for argument this morning as you know in this two thirds are courtroom deputy and she will keep time for us and she will let us know when there are two minutes left to argue and she will also let us know when counsel's time is up i would advise counsel that the panel has not previously conferred about these appeals we've read the briefs and we have big zambian relevant parts of the record of that will assist you in confining your arguments to the issues on appeal so we will begin with our argument in the st case it's united states of america versus the macgregor gale stages here for the appella with sort of a classic quote that we've all heard and that is that this case is a an example of the tail wagging the dog in this case the district court permitted the government to admit evidence of what the government called a very distinct looking gun it was a glock it had a clear extended magazine that was filled with hollow point bullets the gun was brought into court the gun was shown to the jury the gun was passed around to the jury and during closing the government waved the gun in front of the jury this gun was so important to the government's case that it mentioned the gun fourteen times during closing and only one of those times did the government talk about the fact that the government may that the gun may have been used to  protect some sort of valuable goods the defendant the codefendant in this case who claimed that the gun was also evidence that all of the personal identifiable information found in this case  he wanted to argue that the handgun showed that my client mr mcgregor was the possessor of all of the identifying information and he wanted to show that that the handgun w several reasons your honor st of all the government never brought in that kind of argument until mr mcgregor decided to plead guilty to possessing the gun other than not the got the government thought that evidence of the gun was going to come in because  count one of the indictment charged mr mcgregor with being a felon in possession st day of trial he came in he pled guilty to that crime and argued that as a result of that plea the gun was no longer relevant it was at that time that the government started to claim well guns are quote commonly carried by people committing id theft and they brought in a gentleman  detective seeley who we do concede at oral argument your honour's was brought in as an expert he wasn't qualified at trial as an expert which made it a little confusing as to whether or not he testified as an expert for purposes of this argument you know we can see that he did testify as an expert it's interesting that he is literally the only person i could find in the united states that has testified during a trial that quote guns below your honor in the context of whether or not the government was trying to get the seven is a have to prove motive or intent or knowledge we did not argue that it was not answer would be yes it would be forfeited if it had been properly argued but the four for the issue sort of went away and wasn't necessary after mr mcgregor pled guilty went away so then the government is the government accurate in their brief in saying they never introduced evidence of the gun being illegal or him being a prohibited person that is true that did not come out during the trial your honor so obviously it was a distinctive night sitting next to the c with his initials in it or something like that a dagger for example would it be error for the government to introduce that to show that it was found in a closet with the piece of paper with personal identifiers yes it would your honor if if it was sold as to what if it was a child with his initial bad person and if i can judge whether it's unduly prejudicial right or not it's relevant so do you concede any of those would be relevant i concede your honor that that there may be some relevance to proving the defendant's possession of for instance in this case a piece of paper with personally identifiable information but you rarely have as we had in this case the piece of paper with mr mcgregor information to gather in the closet doesn't that you need a jury to infer they need not but wouldn't that as the argument that the sorry my phone and my personal time it just went off in this case the government believed that it needed the gun it refused to allow mr macgregor to stipulate that the gun belonged to him the government wanted to bring in the gun it wanted to show the gun to the jury and wanted to talk about the gun which it did as i said fourteen times during closing so in this particular case but i don't mean to be a bitch i'm sorry to interrupt you but i'm simply asking ordinaries may be guilty of something else which is what the supreme court said and old chief and we contend that in this particular case that is what the government wanted to use evidence of this distinctive scary looking gun for argument as misstates said went away so it came in for two reasons the same two reasons that i argued on appeal of the same two reasons that the government proffered the evidence and introduced it because one it tied the defendant to the piave and the clause it and of course that's one of the reasons that this court let it in and delve which was cited on page two of the defendant's reply brief you determine that th sufficiency evidence of the defendant's possession of p r i was because a firearm was found amidst evidence of fraud same reason that we put it in this case and the nd reason was because it was relevant to show the or this is the part i just have a quick question on the nd point which i'm quoting eleanor and there's a lot of cases talking about guns and drugs and experts that talk about guns and drugs i haven't seen any and maybe you can tell me are there any cases that talk about guns being particularly prevalent with fraud crimes no sir i haven't seen any and it was interesting and this very same expert testified detective seeley testified in delaware but he didn't testify about his opinion on whether guns and fraud go together nobody asked him about it so you're right i haven't seen it and you know i'm certainly not here right as opposed to being the tools of the trade in the narcotics business of which there are many many cases all over including in our circuit this would be then the st time is kind of meant to scare you but this is not the same kind of cases the drug cases where you found that a firearms presence without more is circumstantial irrelevant to the defendant's knowledge because you didn't have an expert in that case  you said it's uniformly recognized that weapons are often as much tools of the trade as the most commonly recognized narcotics paraphernalia with with nothing to support that no no coconspirator testimony no expert testimony we're not asking you to do that we had an expert here and he was noticed as an expert well before the defendant pleaded guilty document and three hundred and sixty seven he was qualified as an expert he was accepted as an expert by the defense they didn't challenge his qualifications they argued only that the jury didn't need expert testimony in this case but he testified that based on his participation in over four hundred fraud investigations that frequently it's it's one man's opinion it's one expert's opinion i don't know that a consensus has developed around that so that's why we're not asking you to make the same kind of ruling you didn't turn on the drew go what we're asking you to do is to say based on this expert's testimony it's relevant and probative as to the intent to defraud and that's just eleven dollars of the two elements one of the two reasons that we introduced the firearm value is weighed by its prejudicial value and so counsel mention that the gun was was waived before the jury and and mentioned fourteen times during closing argument why isn't prejudicial value of this evidence outweighed by program value assuming that it's relevant the court should exclude honor he was charged originally he was charged originally with possession of a firearm or convicted but he pled guilty to that on the day of trial there were yeah he pled guilty to that but it seems like he was tried when you look at the evidence for  used the firearm during closing argument in a very measured way the prosecutor told the jury that there was no evidence the firearm was possessed illegally and the government argued that the firearm was not being used to make the defendant look bad but to prove that the p r i belong to him and that his intent to use the p i to defraud was reflected by the fact that the defendant knew that i was valuable enough to protect with a firearm so i disagree that i didn't count the number of times the prosecutor said gun but my reading of the closing argument was that the government used a firearm in a very measured way now it's easy from a stage to stand up after the fact and in hindsight say well the government had ample evidence it easily proved the case without the gun but you know we don't know ahead of ahead of time what defense they're going to put on if any or what they're going to argue so for that reason we don't use normally defense attorneys as our measure of what quantum of evidence to prove our case with now he wanted to stipulate his way out of the strength of the government's evidence by saying that i'm willing to stipulate that the gun in the snap chat photo is mine but it's not clear at all that that stipulation offer extended to the gun in the closet because the gun in the closet didn't have any fingerprints on it so this is what he said during his closing argument that the gun had nothing to do with the fraud that detective or lod when he said that the sheet of t i a in the closet was found with the gun multiple other people were in and out of the residence to touch the p i so fingerprints don't tell the full story and all of the people belong to the codefendant so this is w faced with so when they tell us well you didn't really need it you know we tend we tend to make our own decision on that and we think we made the right one in this case for for mr mcgregor first of all taking the evidence of the gun piece by piece let's talk about the picture the picture of the gun on snap chat there was certainly no need for that picture when mr mcgregor offered to the government to stipulate that the gun belonged to him if we talk about delta and why the court found in del that that the gun was relevant to fraud in that case you had twenty nine thousand dollars worth of cash in the townhome that the defendants were found in you had a defendant admit confess that the gun that was found out in the open was used to protect the proceeds of fraud in this case the government aid very very clear and it repeatedly said again in closing this is not a use case this is a mere possession case we're not talking about shopping sprees there's no need to protect valuables we're not talking about bank accounts there's no need to protect that kind of information and we're not talking about credit cards we're just talking about merely possessing p s i i the government says that somehow mr macgregor waive this argument by making his arguments in closing that he didn't possess the p i that that was the whole point of the case the problem is that when the gun was admitted into evidence and when it was described repeatedly by the government as a distinctiveness on a glock with hollow points and they got the jury was allowed to handle this gun it made the we were willing to stipulate that the gun belonged to him meaning mr macgregor it doesn't say whether or not that stipulation was in any way limited to to the picture of the gun another fact about dell th was also that the gun was very easily accessible it was leaning up against a wall and in this case you had a gun inside of a closet inside of a box next to a piece of paper that had the defendant fingerprint on it which clearly show that the defendant had handled that piece of paper the entire case against the codefendant was the fingerprints and that is what they used to establish that the codefendant was guilty his fingerprints were all over the p i i the government could have been satisfied with arguing that in this particular case with the addition that it had pictures of mr mcgregor snatch out account in which there were photographs of some p i again the only reason that the government needed the gun in this case was because overall when you weigh the evidence between the two defendants the evidence was weaker regarding the p i i against  mr macgregor and for those reasons your honor we're asking this court to rule that the district court abused its discretion that evidence of the gun was more prejudicial than probative and to reverse the trial court's decision and to send this case back for a new trial and excluding any evidence of of the gun thank you so much