mr washington was charged in this case with actual physical possession of a firearm by a felon there were two c p b officers chicago police officers who said that mr washington had a gun in his hand when they saw him and that he took that weapon in through it and they saw him do this and that's what he was charged with now the officers did not draw their weapons they didn't ask mr washington on the ground they did not behave in a way that would have indicated that they had seen a weapon from somebody and so the government to help bolster the officer's testimony introduce be evidence or the evidence that was challenged and for her be grounds that the video which didn't go to the jury but the stills from the video did depicts the same gun not just a similar gun but the argument is it's the very same con and the expert testified to many data points of similarity so at least a reasonable jury could conclude it's the same god and as as a factual matter that's just a factual argument were were presented here with a legal argument about admissibility yes so so this isn't like the cases in which a prior conviction for gun possession involving different guns invitation to the jury to try a character propensity in france that's that's not what we're talking about here so this we're talking about it's almost like an identity it's admitted for identity purpose thing gotten it and that would be a point again if it was a question case because obviously this is this case kind of uniquely mixes some of the construct of an actual possession issues that have come up in different cases because in an actual possession case it's never been really an issue and nor the courts focused on it nor did i see any cases that indicated oh yeah we're talking about the same guy and obviously in a constructive possession  that's more important because the person doesn't have physical possession of the weapon so they're trying to show that they had ownership or some type of control over the weapon earlier and therefore when they find it later out of their possession it it makes sense in this case obviously we've got what's a stated physical possession of the weapon right i mean the case is clear for admission of this kind of evidence in a constructive possession case but nothing precludes admission of evidence of possession of the same gun in an actual possession case this is a st impression issues i see and i don't know what what's the best argument and not we're referring to prior case law since there isn't any at all for us with this one that this is squarely a propensity character propensity in france and not an identity issue that this is the same gun so judge i think even this court has noted that the difference between an actual and constructive possession is is an important distinction  this case i think you you see the propensity evidence or the propensity issue in this case when you take a look at the evidence on such a significant amount of evidence about the similarities of the weapon  in arguments including the argument by the government that while you were holding the gun in the video and you should knew you should have been holding a gun men because you can't hold a gun you're you're a felon and i think again those things start to show that this is a propensity issue because the jury could easily just because there's a propensity in inference lurking in the background doesn't categorically mean that the evidence is it depends on what's at issue in the case and and what the government is offering the evidence to show and as i understand the argument in the district court's ruling is that this is even though there is a propensity  is in the background in the case that's not what the evidence is being used for here and for a for b focuses on what the evidence is being used for and the evidence is being used to demonstrate that this defendant owns this gun or you know is a permissive user of the gun see this other evidence that makes it more likely that the officers are right and his testimony as fa i understand is the government's push for admission below it's point here is that if the it shows that he had some control over the weapon the prior it's not a dominion and control case that's the definition of constructive possession and it's an argument that this is his gun because he's on camera on you tube making a rap video with it  and that makes that evidence makes it more likely that the officers are right that they saw him pitch the same gun and he's lying and so that that that context i think is also important where that evidence comes from so there's which i think distinguishes the case from oak from a miller type case where you have a one on one interaction with in which someone physically has the weapon on them and pulls the weapon out and shows it  know there's no evidence and there was no evidence that various brought the gun to the or that he was that they took it from there or that and any type of that which would show that i think that the control point that they're showing just merely handling the weapon i think makes this a bit different than that and merely handling a weapon pretty i don't know that that should be sufficient to bring it in in an actual is confine it to two cops saying this is the gun we found in the yard we saw him through with there and he's going to say no he wasn't and you think that's what the cue should be confined yes you know it's where you believed about what they saw on that particular day and that that should have been the evidence we should have been getting into some type of earlier issues that that occurred you know he knows thirty six many months beforehand should kept  favor but introducing the additional evidence helps make it appear as it as if the government's witnesses are more likely to be telling the truth and undermine the defense  applies in a construct ashen case here the gun was offered to show the link between the particular con involved in the in the crime itself that is a possession on the day in question that the defendant st defended himself in this case by saying that he didn't see the gun didn't know anything about the gun had no connection with a gun i don't know anything about it that was his st offense and then he altered his story to say actually i met this friend in this friend had this gun and i saw him throw both times defense argument was it wasn't me who had the gun in that context a link between the particular gun in question and the good i'm both occasions  were not truthful so it not only proved it was direct evidence of the crime itself it also rebutted the defendant's the defense it was highly probative judge mannion you asked what you wanted here to the defense w the defense wanted was basically dead to present the jury with it he said she said situation and limit the evidence to that that's exactly right and the rest the response that you received was that the defense thing like that let's say the gun was was a he was a registered owner of that got in that context it's clear even in an actual possession case or not even even whether the whether the possession is actual or construct it's clear that if the defendant was th use of the same gun is is really identical to that type of evidence for these purposes in that it didn't but in both situations the government would be presenting that evidence for a permissible reason and that reason would not be propensity the argument here was never that the defendant possessed a gun and a gun and a gun one time and so he must support possessed disc on this time or even that the defendant possessed this gun one time so he must have possessed this or that on the other occasion the argument is that the defendant had access in the context in the sense that he was a permissive user of the gun either own the gun himself or he was he he knew the person who owned it and was permitted to use that gun and therefore it was more likely that he possessed the gun as the officers described and i would also note that this case is it is a little bit of a hybrid case because in fact the opposition did testify they saw him with a gun and they saw him throw it and that is actual possession but they recovered the gun from where the gun was thrown and so in sense it's kind of a combination of the two facts only the time of the twenty through it and they recovered you know very little time very little time but the point the point being that that is actually a common scenario this would be a common case and it's especially very similar to the facts of kennedy and in that case again there was an actual possession argument made and the court the court in that case how that it was not that it is an important distinction whether the gun is the particular gun that whether the evidence shows a defendant having a connection to a particular gun or just a prior possession that is a distinction that this court has made time and time again that is a defendant the the government's point just a minute ago was that prior possession would be somehow direct evidence of actual as you know i don't find that distinction very meaningful here i know that that part of the same course of conduct it's direct evidence of the crime that's not actually going on in miller that's not what's going on here we have other bad acceptance and the question is is it admitted for a particular or a permitted purpose ar in permissible character propensity purpose and so that's really the dichotomy here in this isn't this isn't the same course of conduct so it's not direct evidence of the criminal scheme that's at issue in the case and that's correct it's just  in the evidentiary chain to make the government's case more persuasive and then you know admitting it for the purpose of demonstrating access and i think shows again because access wouldn't get you there on