my name is calling cassidy and i represent your friend it on appeal from his conviction for violating eighteen u s c nine twenty four c mr frayne it who is twenty two years old is serving a federal mandatory five year sentence for possessing a twenty five caliber pistol this is a new york state offense ranging from a class a misdemeanor to a class d felony mr frayne it had no felony convictions so could not be charged federally as a felon in possession of the firearm what made this a federal offense with a five year mandatory prison term was mr frey and his involvement in helping a stranger who turned out to be an undercover buy forty dollars worth of marijuana from a third party participation in this forty dollars marijuana sale was the basis for mr frank it's conviction for using or carrying a firearm during in relation to a drug trafficking offense or possessing the firearm in furtherance of a drug trafficking offense so he did have a good in his back he did it but the issue is that there is no evidence that the gun had anything to do with this small marijuana sale you know we held the just being proximate to the drugs being in the same room or actually those cases all the extra evidence in those cases that were just  looter and family involved the guns being in close proximity to a stash of drugs or a large proceed drug proceeds that they're protecting something some something big but you know or not just a person  a small time and there's no evidence by the way that this was a regular thing that he did that he that he there's no evidence that he was in the business there was no evidence that he was doing anything on the corner before they got to covering approached the state prosecutor the state prosecutor wanted it taken away it seems because he writes we don't think there was something more going on here not for you know drugs or well you want to there's no evidence that there was anything else going on and we have to go by the evidence we can't speculate about what was going on and we do know that if they if there had been other evidence they could have a taint that they had his cell phone twice and gave it back to him to take into account that the district court gave this guy who had a pretty long history may not have that federal criminal history but a really long history of being involved in drug case was given the district court just a day for his drug sale so but the total sentence would be five years now the supreme court has allowed district courts to do that in cases of mandatory consecutive and the district court took advantage of that are we allowed to look at your night before and i just have to correct a misunderstanding this defendant had no drug no history of involvement drugs he had a very very small record of a misdemeanor for something very minor i have his p s r right here i pointed that out in my brief that he has no he had no history that there was no for for be evidence available if he had had a history of drug dealing for for be evidence would have been available he had no history whatsoever i think it was but here we have the pending charge here his criminal history involved one juvenile delinquent heavy heavy heavy sentence for someone who's first time felony that's why the judge gave him that sentence and if if this court vacates the one twenty four c count the judge would be able to rescind him of course would he's already served a year but would would the he was so i'm concerned that he might have a gun he didn't even think of it that he that he told him to keep his hands in front and didn't frisk them he did not frisk and he was just standing there they were there holding three to five men for detention waiting for the undercover to come back and identify the person he dealt with and his he slid his hand toward the back this is more this is more like a consciousness of guilt oh my god i have a gun in my pocket how maybe i can get rid of it so some kind of gesture like that there was no indication officer charge he was in fear of anything or thought anything dangerous was going on in fact at a salient point here is that one officer to chart i did finally arrest him after he was identified and frisk him and found the gun he was shocked he expressed his shock he said what you know because he never expected someone at this level to be carrying a gun because someone at this level does not need a gun to protect anything this is just as a guy on the street corner doing nothing offering to connect to hook up a potential buyer of a twenty dollar marijuana sales from one place to another place to effectuate the drug transaction to serve as a steer while he's carrying the gun and i want to take you to the language  says that carrying their gun is considered to be in furtherance of the crime if it gives him some advantage actual or potential real or contingent and my question to you is if your undercover had decided for whatever reason i'm not going to pay for these drugs i'm taking the drugs and i'm going doesn't that give your client a potential advantage the fact that he has a gun on you can use it well that that in theory but there have all the cases say that mere possession is not enough to prove that advantage if there's an if there's a potential contingent advantage then it's no longer mere possession isn't that the distinction between mere and being in front of us but there has to be evidence that it gives it that that it was intended to confer that advantage in lieu of it we have to look at the not just that that rather broad language of litter but also the language in the supreme court decision was correct but also the facts of luther looter involved a drug that were in close proximity in the same room with a drug stash parent drug paraphernalia and drug proces i just would like to refer the court to the muscarella language which which was defining kerry and there they are the defendant had admitted that he carried out for the purpose of the drug our view this this the fear is that the defendant is positing that someone could be convicted of carrying a gun with no with no bearing on the drug transaction was prevented because congress added these words during  and i tell us size and in relation to a drug crime and what judge kogan is positing is would would read out those words and in relation to and word because it's still you have the dynamic of the gun moving along with the criminal throughout the crime and that to me is your hardest issue because it's more than happenstance it's more than mere possession it's something that is there for use if needed well that would be carrying during and not in relation to and the in relation to requires more and what the court what the supreme court's that was that congress added these words and in relation to to prevent prosecution where guns played no part in the crime and in relation to was added to allay explicitly the concern that a person could be prosecuted for committing an entirely unrelated crime while in possession of a firearm and that's what happened here all right we'll move on you were you were cruiser two minutes for a good morning your honour's a minute please the court my name is matthew hagan's i represent the united states in this case and i prosecuted the case a trial the question presented is whether an individual who carries a concealed firearm on his person for the entirety of a drug transaction is guilty of possessing carrying or using that fire the answer that question is yes and the court should affirm the judge's haven't we said that there has to be some indication more i mean if we if we go along with you here where the person was a steeler and it was only forty dollars involved not enough to warrant any kind of firearm or anything of that sort aren't we essentially say that anybody who has a gun and is involved in a drug transaction that gun a four five year consecutive minimum is enough to get to a jury and vet at least there is some language in some cases that says no so i want to know you have a case with a steer and with his little money involved is a visceral i don't have a case directly presenting exactly these facts your honor i think it's important for the court to consider that in order to win this count at trial the government had to prove two distinct relationship and the charge could not have been clear to the extent that we're saying basically this is a jury issue to cases that are post the supreme court's bailey decision your honor there are two relationships the government has to establish to prove guilt the first is the relationship between the defendant and the firearm itself that he knowingly possessed used or carried it and that's undisputed in this case the second is the relationship between the firearm and the drug offense in the case of possession that firearm must be in furtherance of the drug offense in the case of use or carrying the fire must be used or carried during and in relation to the drug offense and on this record i don't think there's a significant dispute that the facts established that the firearm was carried during and in relation to the drug offense try changing the facts from you since i think you would agree that  possession is not sufficient right yet that's clear from the case later on or you know then tell me what fact would you take away from what actually happened here that would render it mere possession i think if this if this were a case where  undercover approached the defendant at the street corner and asked where he could acquire marijuana and the defendant merely referred him said go talk to this guy across the street i think that might present at least i'm not going to first i mean are you saying that basically a person who acts first that's enough to get to a jury but somebody who asks him that's not because he's not as judge gogin suggested  that statute does not differentiate between who acts first second third or any point in the conspiracy it's it's clear from the record that the defendant knowingly joined a conspiracy with the provider of the narcotics he spoke with him in coded language in several phone calls he was not confused when the undercover approached him and said you know where can i get but he knew what the undercover was talking about he knew he had a source at the ready and went on to vouch for to vouch for the source and then are you saying that if somebody is not involved in it than spirit then it's different is that i mean i'm trying to figure out what your answer to judge kogan really means are you saying somebody who is not involved in a conspiracy and is a steerer and has a gun that that m n relationship to i think i think it would be difficult for one to perform a steerer role but not participate in a conspiracy the other point i would make your honor  coming back i keep trying to figure out what it is that you are saying to judge hogan would be me or position i mean the hypothetical was if he just points go there go here i think that's what makes it carrying your honor carrying during and in relation to his death if this court concludes that caring is satisfied there is no need to pass to either possession or use however i think possession could also be established on this record because it was not mere possession we could consider a hypothetical case in which the say the duration of the conspiracy was longer and the defendant said my boy is out of town come back tomorrow and tomorrow i'll escort you and then the sequence of events happens that is let's just put the question what is kerry not in relation to and we asked it under position that the same question can be asked with respect to kerry and have it not be in relation to you know the same question with respect use of so tell me what is carrying that is not in relation to yes your honor can consider a case in which instead of a quarter of an hour the conspiracy lasted for a day and during that day the defendant for some limited period when to the shooting range or carried his firearm to the grocery store he was certainly a member of the conspiracy during that period he was participating in that conspiracy during that period i think the government on that set of facts would be hard pressed to argue that the possession of the firearm at the shooting range was in furtherance of the drug conspiracy or that the carrying of the firearm at the shooting range was in relation to the drug conspiracy it was certainly during the drug conspiracy but the aspect of in relation to or in furtherance of would be entirely missing here however the defendant's firearm is present for the entirety of his offense conduct its on his per when the undercover approached him it's on his person when he negotiate the terms of the sale with the undercover it's on his person when he ask orts the undercover to the site a person who is this year and expects to get no more than forty bucks if he wants to avoid a five year mandatory consecutive and has to somehow get rid of the gun for of a time when he's doing this year with the government's not required to prove in either section  forty one or in section nine twenty four see that the the drug trafficking offense is particularly a large or that the defend oh no no i'm not saying that they are if there is  asking what is the middle of it the fact that it is small and that the fact that the person is a city or no you don't have to prove more you have to prove something and likewise i'm just trying to figure out what the difference is between nothing and enough and this is this is a very close case to me understood your honor i think i think the simple resolution for this court would be to resolve the case on the carrying aspect there's there's no dispute from justice o'connor's opinion in bailey she notes in i think it's fair to say it would be dicta but i think that this court could rely upon it that carrying a concealed firearm present during the entirety of a drug transaction would constitute carrying under that statute that's a version of the statute that predates the addition of the possession language and the supreme court was struggling with what does used to mean what does kerry mean and just as a connor gave that example carrying a firearm concealed in one's clothing i believe was her terminology for the entirety of a drugs transaction would satisfy the i certainly think the the fact that the diff that the defendant reached for the firearm when approached by law enforcement the jury was certainly entitled to infer that meant he knew it was there and it was certainly relevant for evidentiary purposes in terms of proving consciousness of guilt in terms of use i think that that is one of the elements that this court could rely upon to prove use i think if if the court has rejected possession and rejected kerry think use would be certainly more was was was made out and later when the court added the possession in for when the congress out of the possession in furtherance provision to allow for possession in furtherance the congress said that that circumstance probably would not even even be possession inference in further it's just possession during a gun during a transaction we're finding this fairly difficult right i think the hardest thing you have to overcome is that it minutely proper instructions were given to a jury and really the standard you will it wasn't reasonable which is the standard it was an reasonable that there is a constitutional threshold that this court discords province to decide even if a jury is wrong and  the the argument that was made that the government made to the jury on this on this on this element was that he knew exactly what he was doing he was involved in drug dealing he went to the corner to deal drugs and there was no evidence for that there was actually no evidence supporting that their system in place to get jobs when the undercover asked for well he knew someone he knew someone maybe it was it was his a drug provider maybe  he had bought drugs from eric before eric victor he knew someone who dealt small quantities of marijuana in the neighborhood it was either a friend or an acquaintance or an associate of some sort that's all the evidence proved and they could have proved more if they had if there had to the it during and in relation to requires more than during and that is clear that's clear from that's clear from that the case is in this court in the ninth circuit which addressed this issue during is not enough and that's what the government's  case comes down to is because he had it during a by the way five minute transaction which was it was carried that it was carried during he had known he was carrying but that the statute requires carrying during and in relation to not just carrying during and the government's case comes down to carrying during now i just want to point out one factual error i think that was there was some confusion on the government's argument mr frayne it did not act first in the approach and it was the undercover who went up to him there was nothing about he was doing nothing soliciting marijuana sales at all there was no evidence of that and sign up saying no and he wasn't saying bugs bugs or anything like that that the hypothetical posed by the government where if he asked where i could get marijuana and mr frayne it just pointed over there that would not even be the steering that would that would be no crime at all that would probably not are allowed to be convicted at all so that's a hypothetical that does not answer the