prosecution's expert used to reject mr monster position that the passenger shot that the fires were manufactured it supply critical proof for why law enforcement officials would take take such drastic action the district court err excluding this group and this court should remand for a new trial on the murder conviction and the associated one twenty four c conviction because there is insufficient proof that mr oman carried the rifle during i'm sorry in relation to the sharing of drugs with his friend at his friend's apartment earlier that night it should also vacate count for at for insufficient evidence and remand with instructions to dismiss the government does not try unnecessary but the fact it reference went only to the possibility of fabrication it was such things as the fact that an experienced forensic supervisor mr swire spent thirty to forty hours in the car and made no the only think that went to the modus operandi was the seriousness of the charges here and of course they were very serious but the prior acquittal greatly increased the motive that might be that the seriousness of the charges might be thought to create it gave the officers reason to fear that what happened before might well happen again the wrongful determination that there was already abundant facts of motive tainted the district courts for a three balance under this course decision in mcveigh this court should make the ballast a no go using the factors that the district court identified on the other side of the balance because all the jury had to consider here was the  have taken care of any minimal prejudice that might be thought to exist as a ninth circuit held in parinda well it is a bit of a bombshell to drop the say that the defendant has been acquitted of this charge the jury may not be that up to date and think that it's unfair and decide on that basis well that's what the cure of instruction really for the the court could say this is being admitted only for a limited purpose you may not considered for that purpose what happened in the state trial  was a separate matter you have to judge the evidence only on what occurred what's introduced and this trial and this goes only to a motive to fabricate a very simple and juries we presume are able to follow instructions  court can avoid that result by concluding that it's much more it's are visible on exhibits one seventy one and one seventy two which are photographs that were taken before the acquittal and which it's expert mr cleave claim he could see the defense counsel argued that the smudge marks were not there they do not appear to be there on the exhibits that are in the record even when they're used magnification under you know if you blow it up on the computer to look for it and certainly questionable whether they are as a comparison with exhibits one forty three and one seventy five which were taken after that the equivalent in which the marks are clearly visible shows wasn't that was critical to thinking that law enforcement would do such a thing without it was just a possibility floating in the air the motive was critical here to give content to the  mr rahman described the angle of the gun by holding his right arm up to his left shoulder the prosecution's expert mr police said that this put the muzzle of the gun in the approximate area of the shoulder or driver and the smudge marks were much further over mr amano as the photograph on page two of the government's brief shows was it his in his statement to the police which he said he gave only because he'd agreed to take away for mr great house had begun over here and that this is just where he's holding it so the object record be much further although it's a lot so although it put the gun in pet in the driver's area it would be inconsistent with the smudge marks and it did not rule out the the mr romance description of what actually happened and he can you talk more about what you said was just you know a statement that you seem to want to write off because he he said he century leyden and was taken blind but everything about that confession that he made which was that he was shooter and even demonstrated like fifteen times how he held the gun and how he shot how he shot this this officer every and then they corroborated so much of his statement and i guess i'm wondering why assuming there's air this isn't harmless well what they corroborated were facts after the shooting the the his travels to salt lake city and other parts in utah it was things that were uncontested well but you know if you do what i'm how i'm speaking more about his statement essentially also corroborated what they knew about what had happened with these vehicles before the shooting met up and one vehicle takes off in everything everything about it and it's consistent with the the other individual ending up at home and being appearing surprise when officers well he had been stopped by the arm i'm saying it's he threatened my children i agreed to take the blame for he didn't threaten my kids and that's why i gave the statement he knew that he had been stopped he knew that his interaction with this great house had been seen so the fact that he told that he admitted being there that he admitted selling drugs to mr grey house that was unsurprising what happened afterwards is just as consistent with mr great house being the shooter as mr among his entire defense the murder  that's more consistent or at least is suggestive of mr great house possibly being the shooter this was his entire defense to that charge and the jury also did not have to have to take as conclusive mr cleese testimony that if mr gun mr a great house had the rifle where mr oman demonstrated that there would likely be singeing or sit on his jacket mr cleve said earlier page one twenty six the record volume two that probably and sometimes a lot of times if a rightful muzzle is on or near the skin or clothing there will be a muzzle flash heard he also said that mr rahman had the muzzle in the approximate every shoulder area and not necessarily on top of that when he described what instrument demonstrated mr a monster that when he he then turned to the left when he noticed mr great has had the right leg that would put the shoulder an and mr rahman didn't move for a judgment of acquittal at the close of the government's case but not at the close of all the evidence but the proof given the need to view the evidence in the light of favorable to the government was the same affectively on at both times the only thing that mr romanza asked money added was it's good riddance mr chavez apartment but that was obvious from the fact they live twenty minutes apart that he arrived there five o'clock and that he left in his car so when  the rifle in relation to the sharing of drugs what about i'm just a driving too he drove there with me and he carried it into the house why wasn't that used as protection which is in relation at the evidence in the light most favorable to the government like and they aren't there's no evidence and i'm sorry what there's a certainly an easy inference there that we can make that he carried it for protection the the there was the  it's logical is that he went he took the rifle in there to share or to share the gun to show it to his friend they had shot together they had they were holding the rifle in the apartment the suggestion would have to be that he had the right to with him on that trip from the car to the apartment we have no evidence at all for protection or to embolden self in that we have no evidence about anything that would be relevant to that no evidence about what  carrying is only coincidental to the drugs that cerebrum on this was not a typical distribution he was sharing the drugs yes the council distribution but this is not something where mr oman would think he where you know there was there was no other proof that showed guilt it just had been been submitted to the jury instruction so this is not one of those rare cases where this court should not exercise discretion and it should vacate that my intentional killing of miller county sheriff's deputy josie great house fox and for that reason this court could simply conclude that even if there was an error in excluding evidence of the state  harmless and harmless beyond reasonable doubt first the jury heard and saw a video confession where mr romano demonstrated no fewer than twelve times house held the a forty seven put his head to the side so that he would not be as affected by the blast that rifle and how he shot with his right trigger finger deputy fox that was a confession that was witnessed by detective oliver and the the man that he trusted enough to call in the middle of the night when he was fleeing from police that he shot deputy fox and as if to confessions are not enough mr o and he told mr corey that he had a quote unquote b s story that he was going to tell his state court trial he was going to tell that jury that deputy fox's rather was the shooter and that is he was no longer around to defend is the only difference the only main difference between the state and federal trial the much marks on the headliner are that the state prosecution fail in other ways fail to evidence of jason corey statement and they also didn't put on the evidence from sarah hatch sarah hatch was mr a month girlfriend certainly not a pro prosecution witness who testified on january first twenty ten mere four or five days before selling drugs trying great house some lights were approaching as they were in the car and this room on said to mr great house if that's not a cock not going to be good for them because he w even the absence of the cartridge casings in the backseat even in the absence of the medical examiners trajectory analysis even the absence of the lack of smudge marks on the trumans jacket even leaving aside all of that ttal and none of that is discounted at all even if the jury believes that those marks were not there review all the ever an inference is in the light most favorable to the jury's verdict the evidence was sufficient but the united states wants to press a point on waiver here his record is not yet ruled on whether raising plain er is sufficient for preservation purposes has it hasn't reached that issue yes and this is a case where the united states would urge that because of the unique circumstances here there was a waiver of into the apartment from the car that he took it with him when he left the apartment and we'll have a case where mr oman is sentenced to life plus eighty years so the twenty five years count four for a person is already serving life and he was forty six years old makes a pretty unique case it's also pretty unique that he that he didn't didn't he distributed but he he didn't get anything for this he  shared right sharon the that is not the typical case but he shared it and he was there for six hours and there's not nothing contradicting his testimony that he was they were playing video games they played with the gun doesn't appear that the gun at least while he was there was being used for anything other than their interest that's true that's very true that's the evidence and you can put on anything else absolutely true but nine twenty four she was passed as legislation to encourage drug dealers to leave their guns at home and so in light of the events that happened shortly after the sharing of drugs with  playing video games there was no reason for him to need the gun while they were sharing the drugs that would be waived because plainer argument was not raised in the opening brief but in any event again the evidence w was raised it just was raised in the context of saying was player and here's the standard for playing your correct and playing there isn't it's not a throw away i mean certainly there's case all the talks about the first two prong thing similar to the noble review but it's not a throwaway therefore prawns and it is this room on burden to meet all four prime which the united states makes he has not done but in any event the evidence certainly was carried it with him we know what he did with the gun afterwards but the evidence was sufficient but post there because help for of course incorporates the drug crime in count three and the government had a choice on how to charge you chose distribution and what i'm not seeing right now well as i get carry a firearm during and in relation to it right trafficking crime which is defined as the distribution how is his having this gun which everyone seems and sees the evidence was one sided that it was a look at my neat gun and let's play around with this  how was that in relation to the distribution and your posing examples that i think go beyond count three which is well he carried it on the twenty mile drive between delta and fillmore and he had  later when he left the apartment and he was going to make the other methamphetamine sale those are fine and dandy but they're not tied to count three which is the distribution which is a moment in time know your i don't believe it is a moment in time offense or at least i don't believe it would be plainer and that would be the obligation of mr reminds show in this context because that argument wasn't made below so getting to the scene when you have the drugs and the gun would be during and in relation to because otherwise it wouldn't be a crime to have a gun or p getting to the place where you're actually turning the drugs over and i don't think that would be supported by the intent of time twenty four c or by this court's keefe law because this court has routinely held that when you which part the part about it would be a standalone violation for him to carry this firearm all the way up to mr chavez's doorstep driveway no and and so you're arguing something different here than what was argued to the and we say how is that in relation to the distribution you say well he carries a twenty miles in this car right and i say that wasn't some argued to the jury wasn't and right and i think what also was argued to the jury and i think this is true can go bad and they can go back and he did have a weapon there and it just briefly the smudge marks were critical here because they helped the expert place the gun at nine thirty five of the record and placed deputy fox at twelve sixty three to sixty four of the record so was strong corroboration for the rely on mr rahman statement to the police that's if it was and the government talk about bombshell evidence abrogating evidence if the jury found that would be bombshell very quickly on one twenty four c must carolla talks about harriet says in relation will limit it this is an appropriate case to exercise your discretion to notice if you if there's a waiver the evidence was the same at both times the