may please the court is my st argument in this court and i'm a little nervous with that being said i'd like to make six very succinct points at the beginning of this argument before i get into far the st is that the video evidence shows no high capacity magazine despite the government ignoring the video evidence in their brief mr bellamy may know admissions that he possessed a magazine or that he attached a magazine or that he had a magazine in close proximity he did not plead to any magazines no witnesses provided any statement as to magazines there was no mention of magazines intil law enforcement conduct at the search there was no scientific test that was conducted the provides a link between the magazines and mr bellamy and there were five other people in and out of the house after mr bellamy was he checked it from the premises twelve hours prior to the our review the district court you cannot prove that it was with a magazine high capacity magazine present so that was a factual finding by the court in a sentencing proceeding which they have to decide by a preponderance of the evidence so that's the big i mean i'm not the what you've just said if we're one of the cases that came before me as it is true judge might very well carry the day but i'm very concerned about whether it's enough to carry the presumptions here i understand that your honor i think what we have here is there are two reasons why i think that let's start with the legal standard normally the legal standard is conclusions of law we have to say that his proponents finding was clearly erroneous and i think in this circumstance where the evidence was presented in a cooperative matter via stipulation of the evidence coming in in the council being able to make any fair arguments from that evidence we've got a situation where the district court did not have any of the reasons that usually underpin why a clearly erroneous standard as their findings might act it didn't have any of the five or six things that you said were not present but you didn't mention the one thing that was present which was that it was a magazine found in close proximity correct i will get to that in half a nd and i think to the evidence and i just want to make sure i understand your answer to judge the bell's question about the standard of review are used saying that the standard to review as to whether the  district court correctly found that there was a magazine present is clear air clearly erroneous or is that the novel it's got i believe is the you know they're in a situation because the the district court did not observe any witnesses or any of the reasons well no i understand i understand i just i'm just interested in the standard review i think the standard for this case is this court does not need to give due deference to the findings of the trial court and that in that case i think it was judge course such now justice courses drop the pinion and he said because the district courts faction finding is it's legally sufficient to support the senate's unhandsome and we may reverse only if the finding is it's clearly erroneous i do not believe that that case was presented on stipulated facts and i did cite a case in my  is sears burst bennett which is in cases which are stipulated in the district court did not observe the witnesses and appellate court should evaluate and draw conclusions from the evidence without difference ordinarily afford to the trial court's findings some of the district court's findings that underlie this issue are truly conclusions of law in particular the district court said well mr bellamy the gun was found in your closet in your bedroom your is a finding a legal finding of who possessed those things and i think that is erroneous in this circumstance because of two things it wasn't a finding well as his bedroom though wasn't it used to be his bedroom i think is the distinction here well there's there's sort of two points in time yes there's there's the point at which  the search and seizure occurred but there's also the mourning leading up to the point where he was kicked out of the house dead as iraq and if i understand the government's theory it's really at that point in the morning that they're arguing that he possessed the magazine or there was one in proximity and at that point in the morning that was his bedroom and it was his c correct it was his bedroom and it was his closet at that point in time as not disputed anywhere what is disputed is that there is any evidence of a magazine at that point in time there is no evidence that a magazine was there at that point in time which i think the only case in point anywhere in the entire country is the hour of alo case which was designed decided by this court and it's it's in the federal  a published opinion and in that case i think i think with the way they set the standard there they knew that the firearms and the high capacity magazines were in fact repackaging when the owner possessed them and the thief stole them that thief talked about the high capacity he didn't know that they were high capacity magazines but he said the firearms were still in the original packaging with magazines on them at the time i sold them to the defendant and prior to that time the a t f saw a photograph that the roommate of the defendant had that showed the same high capacity magazines on there in fact repackaging so we have depending on how you count them and how they intertwined we have three to six points of evidence where we see those magazines and we know that defendant ultimately possessed them because of the testimony what is your what is your alternative version to the district cork interpretation of the words your knowledge that he had the rifle yes and you acknowledged that the rifle was in his bedroom as former bedroom twelve hours before as well as his identifying materials correct and so is it your view that with these other people coming into the house someone took the magazines up and put one in a in a dresser and one on the fire and that's one of the possible interpretations and the district court heard by  finding a preponderance of the evidence that that's what happened well i don't think the district court has to find the product of the evidence that that's what happened i think the other side of it is that based on the evidence here we only have a rd of the evidence that was present in the our follow case where the arab rollo case it said that circumstantial evidence may be used in this manner and we have three fixed points in time an arab wallow where we know that they were present and then the district court in that case extrapolated in this case we could talk about mr spalding he was a meth amphetamine addict he was either left the house after three  the house he left on a bicycle you see him coming back i watched twelve hours of video from four different angles took me over fifty hours with the stops and pauses and i count the people that went in and out of the house and the last person that went in the house with mr spalding is carrying a large object from the back of the truck i don't know what it is but it looks like it might be a piece of furniture so our people move moving into this room are already did m know take the big bedroom back he threw storm out you saw the sign on the st or the st thing that law enforcement encountered was a sign on the front door that says store bellamy does not live here anymore you have no business here whatsoever  you know it's a circumstance where you know the facts in this case are nowhere near close to the facts and and the facts in this case when you add  there was insufficient evidence to find by a preponderance that was a man who had been to revalue to the to the shoe the the bullets that were found shells there was there were no fingerprints found and was or anything linking him to that box there was nothing linking him to that box it was in shared trash of the soul in need to know the there is no packaging for any magazine in the trash law enforcement went in pull trash three weeks in a row and it was the two weeks before mr bellamy was seen carrying the firearm into the house in the one week after he was seen carrying a firearm in the alice and there was no magazine packaging in there and even more than that the entire video for that time i didn't have time to watch that much video as a c j appointed counsel you know i watch fifty hours of video already i don't have time to watch a month's worth of video but that video is there if smith or bellamy were on that video carrying the magazine in that house sure as heck the government would present that to the trial court they did it there was no video showing mr bellamy with with a magazine there is no evidence period showing a magazine prior to th no one none of the witnesses not mr spalding did not miss harris not anyone the police interviewed can testify or testified period or mentioned a magazine the only time that we know magazine was actually present in the residence was at the time of the search and seizure and i'd like to reserve the rest of my time for a bottle thank you counsel thank you morning your honor and may have please the court my name is jared magnum assistant united states attorney for the district of kansas i think the standard of review really centers on the issue whether or not the lower court's decision in fact it factual findings were clearly erroneous under the circumstances of this case this case presents a somewhat unique circumstance because the facts that the defendant is arguing are essentially facts that don't exist forcing the government socially proving a negative in this case he's saying that yes i agree that there was a magazine attached to this firearm when law enforcement found it twelve hours after i left the house but government you cannot prove that in that twelve hours when i was addicted that someone did not come into this house and put that magazine it that institute you do agree that the government's burden you should absolutely and the found in the trash can and days earlier certainly fit that magazine there was no evidence directly linking him to that other than that the box of ammunition was in the trash that they had seized days earlier but it's the only firearm in the house that actually holds that type of ammunition there were no other firearms in the house that could carry that type of ammunition so it's certainly linked to the firearm is that that tends to negate the possibility that one of these other people added the magazine on the day after he was was dismissed kicked out of the house because hoover had no purpose no whoever bought that those that  of one piece of ammunition you would have to buy the whole box of it so how does that add anything to whether there's a magazine involved or not because the the magazine attached to the firearm was at full capacity there was a round in the chamber so we know that there was a number of rounds that were already in the firearm and the magazine that was connected to it but here's the other i think more almost more salient point there is that there was evidence stipulated evidence that both he and mr spalding had some fear that someone would come into the house and they may you know that something bad might happen and he gives mr spalding another firearm for protection it gives him the you're still in fear why would you have a firearm that doesn't have any magazine attached to it that's fanciful it's almost it's completely implausible under the circumstances that you would keep a firearm that is completely dysfunctional because there's no magazine attached to it it also begs the question of why would you buy a firearm simply to have a firearm without the actual magazine that goes along with it again these are simply common facts that are understood under the circumstances of this case and largely with any sort of rational understanding of firearms there be no purpose in buying an a r fifteen without a magazine that's completely dysfunctional under those circumstances and could be fired by a single load without a magazine at all i don't know this particular fire but most farms would provide for that you could you could in the realm of there's no purpose there might have been a ruse that there could be you could insert a singular round old evidence does not support that statement that it was a useless weapon without a magazine or bullets correct you know but it sort of gets back to the issue of where the defendant puts the government in its position of trying to knock down these straw man arguments by essentially saying government you have to come up with some proof that this magazine was attached to this firearm twelve hours earlier well the fact remains is it was attached to it and it what there was a an additional magazine in  i think it to some degree there because remember the overall well back up we're looking at a procedural issue sorts of guidelines issue that's procedural in nature so it's abuse of discretion at its peak and so from there as as judges as you ind course what we cite to in our opinions the mozy decisions gant any number of opinions talk about the issue of the factual findings have to be for clear air i think there's some confusion though because i did find a case which somewhat led to the idea that is the court looks at it in somewhat of a dyno voe standard under united states versus anderson and this is not a case that we and it's fair to say that the court's going to look at the legal conclusions and it knows it has to look at the complete legal conclusions de novo but the deference standard that gives to the lower court because the lower court is reviewing the evidence directly and in most instances in under those circumstances it's going to give an amount of deference to determine for claire i mean this is almost a pure factual simply factually was or was not there a magazine attached to that weapon at the time that this defendant had possession of it and that certainly the government's position that it must be under clear air because the language that this court uses throughout clear air analysis is the permissible language was what were their facts elicited below that led the court to render a decision that is both plausible and permissible in light of the entire record and this uses that language throughout which which suggests that it is giving the lower court a great deal of deference in determining whether or not it viewed the evidence in a way that is permissible implausible and under the circumstances here we certainly  argue that the clearly erroneous standard is the proper standard for in this case what is really just a factual determination as to whether or not that magazine was attached to that fire and well there are i guess i'm just not following your argument about not having to prove a negative it seems to me that you're not trying to do that all that argument is that the magazine was there twelve hours later one could infer that it was there twelve hours earlier isn't that really what you're saying that is our position what what our position is least the argument i'm trying to set forth here is that the defendant's arguments are such that the government has to prove somehow or disprove the idea that someone came into the house during that twelve hour time frame and placed that magazine in it essentially he has set up the idea that because you cannot prove that the magazine wasn't there twelve hours earlier or was attached twelve hours earlier anything could happen in that twelve hour span we agree with that anything could have anything but our position is that all of the arguments that could possibly happen or all of the facts that could possibly even occurs fanciful under the circumstances of this case that the only conclusion to draw that the lower court drew was that that fire that that magazine was attached to a firearm because there just simply is no other logical explanation for it there's a have to be attached no it does not it could have been in proximity but the but i think it's important to understand that the attachment goes back to the issue in the larger fact that both he and mr spalding believe that they were in some type of danger remember the type of activity that they were involved in was criminal activity there were people in and out of the house they set up a surveillance system to suggest that he would give mr spalding a firearm but he himself not keep a functional firearm seems rather odd under the circumstances which given leads back to the issue that the firearm did in fact have that magazine attached to it twelve hours earlier it's hard to find a scenario under the circumstances where a judge could find and this court would say it's both permissible implausible to conclude that someone came into that house with a magazine independent of any other firearm just happened to have a magazine that just happened to fit that firearm and then attached to it for what reason again as we say in our brief more likely than not if mr bellamy is a victim from the house it seems more likely that they would take his property and somewhat and not sort of set him up i take it you didn't see anything in the surveillance video that would indicate that the people who were coming into the house during that twelve hour period were bringing in something that might look like a magazine judged to be candid i was not the i was not the a u s a on the lower court  proceedings the usa has moved on to another district and so i did not review any of the evidence of the only thing that i can say is to my reading of our record there was nothing to suggest that there was any video evidence that the government reviewed that showed a physical or someone holding one of the magazines to this particular firearm so there is nothing to that degree that we presented to the lower court to demonstrate that there that at some point mr bellamy actually had the magazine itself are you saying that you when no matter what this standard review is as opposed to saying when only if it's clear i think if this court even looks at ada no it looks at it to know what's under under that theory that the evidence in this case the only permissible inference or conclusion to draw from this case is because the magazine was attached to it was that it was there twelve hours earlier the court would essentially have to determine that the government simply didn't disprove these myriad facts that are almost infinite that you could come up with that something occurred in that twelve hour brought in a magazine or modified the gun somewhere you know that's simply that's simply a serious that that's no hostility there's no fact no no there's no factual evidence of that at all and given the lifestyle that these individuals live it seems a bit of a stretch to suggest someone again brings in a magazine independent of any other firearm that just happened to fit that mag that happened if it that particular gun you know it's more you know it's more likely than not that that this magazine was of course anything in the record judge bell that would would that got to that point i assume that if the court remanded for further factual finding the a t f experts would certainly establish whether or no as you know this record is there's no evidence that there's anything unique about  the in for this not that i could tell no one of them now in this court has any further questions again our position is that the court should apply a clearly erroneous standard and under the facts of this case the lower court did not i think in some regard this is a kin to a chain of custody and so the government's got a burden to prove that the object was in the same condition at the two different points in time i'm not saying they need to disprove my theories and i did not s that in in my brief however the government is saying hey it's just fancy that people would have come in here and done anything and the government then said it's more probable that it would be looking to sell this guy and you know that's one of the things that i put out there that these are meth addicts two of these people were money by mr bellamy we saw five people go in and then out of the house this is not a case where it was an isolated building where no one went in and out like it was mr bellamy sole partment that he had the key to so so what about that you have meth addicts coming in and the only explanation for one of them bringing the magazine is that they're in communication with the defendant about jointly doing this farm or whatever why isn't that good enough relevant conduct the night with the defendant there's no evidence of that evidence that they had communication with mr spalding no i understand you're making the point that five people came into the house yes and that one of those people may have brought a magazine brought it or read magazines from other locations and then some of them brought them into that room so presumably you wouldn't just bring a magazine unless you knew about fire yet remiss not to mr spalding knew about the fire are he led the law enforcement directly to it and they were look five hundred dollars was owed to ms harris who was there mr spalding was told the police that he was owed money by mr bellamy also so who is he looking to sell effected did the magazines go into the room and be attached the firearm and the nightstand or whatever it was but if the defendant here's my question if the defendant knew that he was going to have a firearm and wanted a magazine and that communicated with any of these people including mr spalding and said i have got a firearm we just need a magazine it would be fall within the relevant conduct if that person did bring it over willfully cause the magazine either to be attached or in close proximity that's the standard for all relevant conduct so i would say yes and there is no evidence that he communicated that to anyone and that would be the government's burden to prove because i just one other quick question was there any evidence that mr spalding or any of the people who were coming into the house were tipped off and knew that this search was coming later in the afternoon there was no evidence that anyone knew about the search and cup with that they were doing the search to find drugs and you know possession in dealing against my client you know that thank you that they can answer my question thank you very much case will be submitted