question and denying our motion for mistrial because it admittedly over our repeated objections evidence that was had zero relevance or marginal relevance with has a list of six murders and seven shootings of those six murders and seven shootings only one of them was relevant and that was the murder of mr black's pub which was part of our defense as to why mr black carried a firearm but there are five other murders that had no business being in this case but why why is not some of this information relevant to explain the motive for the conspiracy for why this particular group of people felt that they needed to well basically conspire to possess some i grant you that some may have been law but the court allowed the government to steamroll last with violent murders one murder after another so where's the line that we that we draw where do you say it went over the line into prejudicial evidence as opposed to setting the stage for motive and that's a great question look at looking cloud and look at the case that the government filed yesterday afternoon after hours at five o'clock painting a once in looking cloud movement he was a member of the american indian movement who was accused of murdering a victim who is a member of the american indian movement he was accused of murdering the victim at the behest of the leadership of the american indian movement so in that case in the context of allow it because it shows the connection between the parties the court also a lot of very limited information about the american indian movement in general and that was through one witness in passing and that witness was a lobster testify about cu argument on appeal that some of it might have been admissible for purposes for proper purposes in the government's case when where or where did they need to stop and did you present that to the district court as an alternative well first of all your honor in terms of presenting it to the district court i'm looking to see if i could where it should have stopped if you go to a one gang war with the taliban and the young and thug that was the battle counsel you say this came in the opening statement describe how this trial was the opening statement of political to all four defendant or was it simply an opening statement black is the only one who went to trial here on or across the trial was limited to us and yet the litany in the parade of horribles began an opening now the government tells you that there was isolated and it was planned statement example one could be walker was testifying to be walker was a member of the taliban cooperating with the government and the suspected murder of blacks brother he testified in his direct the government walks him through the murder of gerrick martin and it says more or less of an ambush the government then brings on another police officer with respect to shooting involving mr blunt and he says he was shot in the head and he sustained a brain injury and loss of an eye then we have  hearing before the district court before trial the district court summarily tonight all our motions and said it was alone it in for purposes of backgrounding context and during trial we repeated our objections but they were denied now going back to your is real and the animal is real and for his motivations to own a real gun that's the only purpose you can use it for he can't use it for anything else that gives guidance as to how far this court could have gone but and as i looked at the jury instructions there was no one provided to the jury about how to use this testimony or was it or this evidence or was there instruction during the course of the trial no that there was no instruction during the course of the trial the judge ordered in the motions in limine a that he was going to lower the evidence at that without limitation without limitations and that gave the ask for a limiting instruction there is no way around or a limiting instruction would problem here and same with looking at looking cloud pervasive and also talked about the gang membership serves as a substitute link to the mr black he was a passenger in a car the car did not belong to him it wasn't register him it was a chase nobody saw anything thrown out nobody saw anything as being open whether a time when the car was out of view briefly for ten for about three seconds around three seconds according to a court well if you look there's a video cam or so the video would show that yes the video shot will give the exact timing now nobody even if you give them so even if you accept the connection that this gun it's connected to the car who threw the gun it was there evidence that also that the gun had come from the car no nobody  your nobody saw it the government's whole theory undergone is this this gun was found along the path and the people did not see the can before him therefore it had to have come from the car but that's flawed because if you look at the pole cam if you look at the poll came which is exhibit a in our that was offered i think that governor exhibit twenty four the pole cam video from forty seconds to minutes thirty five shows the people standing around are goes around the corner and it pickup truck the owner of the pickup truck comes out invest looks at the car a golf cart goes by and looks at the car the gun is less than twenty feet away from the appointed that's when yet neither one of them saw it two other cars go by they didn't see it the maintenance  is one that was left on the answered by the supreme court a couple of years ago in the lowness and that question is whether or not a criminal defendant has a first amendment defense to  retaliation charge where the communication is an e mail or you would be protected sentence such a way that it might not ever be delivered to the recipient and if there is a defense under the first amendment which i urge you to except that there is none what are the jury instructions to be given that was the key issue in mr bender's trial and let me put it in the antonia lewis who's a public trial don's upstairs fairly well attended by gang members this was a big gang case in minneapolis when it came down it was an attempt by the government to take  out two or three significant gangs in north minneapolis these two individuals testified and serve a generic sense they didn't implicate mr black directly but they did testify about various gang testimony or at least could hear about the testimony in this case he contacted his then girlfriend whom he met on the internet this is very much about it the internet this cases and asked her to write an e mail she didn't know anybody she wasn't in a gang she was acquitted being delivered the inmates know this everybody knows this and one of the e mails was indeed intercepted in one apparently got through but the e mail was delivered long after the conspiracy was over during the course of this trial and defending mr bender i was looking at first amendment law which is a ripe area in the supreme court at this juncture and there was the aloneness case coming up it had been decided that the threat has to be actual instead of unmanned tory theory and as i read in loners i mean if he's charged with making an unlawful threat it has to be a true threat for example mr lowness had been charged with retaliated against a witness to what his wife said she testified against him he could have raised the same defense i really didn't mean to say what i said on facebook i didn't really mean that i was going to put a knife to her neck which is what he said on facebook i didn't really mean to say anything i was just venting he could have used the exact same defense well you could argue that i sorry if my guy didn't intend to retaliate he was just doing something else and i certainly did argue it because i argue that while i never got there it was he knew that it wasn't going to get there they're going to review it and therefore he really didn't mean it but it's one thing to argue it's quite another to get in jury instruction that gives the jury some kind of guidance on how to evaluate the first amendment claim that i have i mean in a murder case for example if your defense is self defense  and the court doesn't give self defense you're left with argue no i didn't intend to kill him but if you're given your defense then you have a different kind of argument there's a different structure and that is the militarily i'm sorry go ahead never interrupt similarly if your defense if i were defense mr bender's defense is first amendment should he not receive some kind of instruction from the court to the jury as to how they should have value wait that claim i mean that's that's the whole point of what he was trying to do here are the facts are almost conceded there was cross examination and what they meant so forth but it was a you know a two day trial essentially but there is a this rights it was correct and so it's it's not looking at what the subjective view of the folks in the prison would have thought it's based on your client's own actions correct correct and certain categories that just don't fall within first amendment protection i'm trying struggling to see how you've got an intent to actually retaliate how that can be if free speech defense  the question of whether he intended to send this message to these folks but really what he meant in it is could be freeze beat well it could be free speech if he didn't mean that it was an actual t could he divorce ourselves from the case for saying could he between someone else in prison say i don't like what happened here i don't like these guys in the it would be different though when they send an e mail that says i don't i don't like what they did says some derogatory statements about them but that's different isn't it than sending out an e mail to say and you need to cause harm to these people because i don't like what they did there may be indeed a difference but in his case i mean he was venting i mean this is in the larger context of the internet within which we all live people are saying all sorts of impulsive things now without much thought and this has been going on for twenty years teenagers and texting and that doesn't mean those things shouldn't have c well that's true but the issue is whether they have criminal consequences as opposed to free speech consequences and i think you know one one may say well he certainly could intend to do it by get you live these things but if it's a valid defense does not he get an instruction so we're we're doing a card in horse racing well of course maybe intended but on the other hand does he get a defense did i make enough of a record through cross examination and arguments to create a first amendment defense in the law i think i did and if that's the case should he have given it as consistent with their theory of the case and he shouldn't and then it becomes how would we know whether that's harmless or not harmless but i get the defense it's a new defense supreme court to suggest is available in criminal cases i'm trying to utilize an area of the law that is not clear but sufficiently clear for our purposes it affords mr bender in excuse the constitutional excuse that the government would have to rebut beyond reasonable doubt and that's why it's so important on the one hand it's it's an e mail sent through the prison system and it contains by the way a rap larry quit used certainly protected speech and never i should have done that but there is a defense available and and one said you know it would be a really a fine decision and we hope you make it to recognize the first amendment defense does exist it existed in existed in koan and now in the present day email world it should exist now and if they exist solace and how it is it defined and should not have the jury received instructions on it i would ask you to reverse his conviction  indicate that he would enter a guilty plea he did not participate in the pretrial motion hearings he did not go to trial and it caused him significant fear of what may happen i think the rumor then began of course that mr j was some kind of cooperate or he really wasn't but it did cause him some fear as you heard here today that this case was a a large game case out of north minneapolis and it was it was moments in this case were tense from beginning to end and so it provides a context in the sense that mr johnson moved forward in with his plea first one to do that knowing that some of the other people in this case were questioning him he comes here has me here greater than necessary to achieve the goals of sentencing meanwhile at the same time the judge basically brusqueness brushed aside mr johnson's motions for departure variance without adequate explanation basically just announced the sentence inside mr johnson and hearing you know i think of terrible criminal history i want to send a message to you i want you to kind of learn from lesson and didn't take into account what i was going on with mr johnson substantive mr johnson argues that the senate was unreasonable anyway because it was seventy eight months which is the high end of the guideline range but also greater than necessary in this case given the fact that he did have valid variance arguments ultimately your honour's mr johnson believes that it's unfair and inaccurate to tie his case so closely to the front of parker and that's not to say anything bad about mr parker it's just that they are very different cases in the sense that mr parker does not have or did not have the same variance arguments that mr johnson had why do you say they were tied together is because the district court was trying to give consistent sentences to people who seem to be involved in with to a similar degree it was obvious during the sentencing hearing and really from the government as well that these two defendants were sort of compared to each other often being similarly situated they ended up with the same sentence basically seventy eight months but what mr johnson our news is that while they may be somewhat similar is similarly situated in the sense of where they were in the indictment scheme mr johnson had assisted the government he had assisted law enforcement prior to his a dykeman and he wanted some credit for that he did it at peril to his own well being honor these are things that happened prior to him being charged in this case could be arrested he would help out in some way and for example i think it's in the brief mr johnson had been arrested and was being questioned and he voluntarily without an attorney to help him gave up some information about where some firearms were located certainly he was expecting to get some assistance out of that or some help i think it was his position that the officers had said well you know it's sort of the typical you help us we'll help you and so he did that but he was not negotiating a five k motion or anything like that and your view is that the district court just didn't consider that sufficiently and what was there any concern about talking about that in open court at the time was your honor we filed everything under seal at the time by my client's request he was concerned that people would hear about his case you know he's still concerned about that today so how do we factor that in in terms of how much the district  said on the record well the judge brought it up on the record to mr johnson at that point said hey you know we need i told him look you know how are we going to get this properly from the judge unless we can talk about it you know i mean i think it was clear that he had done something to help himself early on in the case but he was not he didn't appear as a witness for the government or a thing like that so i told him i think it's better that you just simply let the court know exactly what was happening so despite filing things under brief we ended up speaking on the record about this the other issue here your honor was his medical condition as i what authority do you cite for that being a substantial factor for the court to take into account its answer we just argued it under whether or not it was a reasonable sentence and whether or not the court had considered that as you know w please the court counsel when the instructor gets i represent their parker mr parker's issue today is he contends that his sentence of seventy eight months was unreasonable as it was greater than necessary to accomplish the goals of sudden saying under thirty five fifty three the parties don't dispute the law we don't dispute the facts we fairly briefed at the quarters as are many arguments already i don't have anything further to add beyond the briefs of the court has any questions on mr parker's issue  address them so your your argument is there's no no argument that there was any procedural error on the part of the court  you see on that little one page synopsis is pretty much what the jury heard we covered all those murders and shootings primarily with one witness katie walker and if you read the walker's testimony i took them through that in maybe twenty pages of testimony antonio lewis another cooperate or add a little bit to it but he was in jail most a lot of the time so he was in the room for a lot of the murders to be walker was part of a lot of them and he knew about  twenty maybe thirty pages of testimony my closing argument summarizing the violent crime evidence literally literally two paragraphs out of a probably forty five fifty minute closing argument  was there cautionary instruction well none was requested by the defense but i gave one one in my opening statement quoted page twenty six of our brief but i told the jury right up front that this indictment does not accuse mr black of having murdered anybody or having shot anybody but it accuses him of being a member of a gang that was involved in a gang war and went on to say so you're going to hear about this gang war as kind of a context and background that might help you decide what the people's motivation was for presenting these guns and in closing  argument after those two paragraphs about summarizing the violent crimes and went out of my way to tell the jury mr black is not being accused of any of those violent crimes and the witnesses we brought in did not accuse mr black of those violent crimes what is the relevance it goes to the motive for possessing guns and that had been litigated prior to trial and the district court had ruled that the evidence was relevant because it goes to the motive for these people conspiring to possess firearms you identified two witnesses mr walker and another cooperate or weren't there some other witnesses who also testified to some of the information that's on the piece of paper we're looking at  r mentioned one witness who i think was the one who investigated the shooting of mr johnson mr johnson had been shot at a gas station just prior to our indictment in fact that's the reason we had to excel read the indictment is because he'd just been shot by rival gang members and we knew that the retaliation was just about to occur so we accelerated the indictment there are some brief testimony on that maybe a page or two about how mr johnson had talk about bullet casings that matched casings left at crime scenes we had one fellow at the end would talk about casings recovered behind mr black's house but the primary evidence about the shootings was from q b walker and it was really very limited and i gave a cautionary instruction both in opening statement and closing about how that evidence could and could not be used another was the evidence that all for these different i guess  boys so we had a gang expert talk about that i should mention too that the judge did even though one of us was not requested the judge did give a cautionary instruction at page two thousand and one of the transcript which said mr black is not on trial for any act not alleged in the indictment and so that was why i reiterated in closing that we were not accusing him of any of these violent crimes or murders council like to talk about the possession charge yes what is there beyond speculation that black actually possessed a far well there isn't based on speculation at all you start with give me the facts ok the first thing we proved up was as early as tw ten mr black going to prison letter said that the soon as he gets out he's going to be carrying a gun at all times and that letter was before the jury i'm going to be that big that doesn't prove he had a gun when he was arrested by itself and then we go on the jury heard before we get to this final transaction the discount to the jury heard along the way two other times where black was caught in a car in possession of guns they learned they didn't know at least one of those incidents he'd already pled guilty and listen so this is the background that they knew that he pled guilty to possessing guns in connection with other gang members in that incident so that's all background it was intrinsic evidence but it could have been treated as for a for b so now we get to the case of hand the police pulled him over he's in a car being driven by a fellow gang member he's the passenger the only passenger as they pull him over and you can see this on the squad video and both officer testified as they first pull him over both officers see mr black with his hands down the furtive movement heard of movement as if trying to hide something or manipulate something the driver is not doing anything of the kind then the car speeds off there is a high speed chase last about twenty seconds and for three seconds as the car makes a left turn hitting another car in the process it's out of view of this of the squad video but the gun was found right where that left turn was made who was on the passenger side of the vehicle it would have been virtually physically impossible for the driver to have thrown it out because you would have to go out the driver side the guns found on the passenger side all through trial the defense argument was the driver of the gun the driver threw it out we show that that wasn't physically possible so for the first time in closing they changed the argument to well the gun must have been there all along it was never in the car  the problem with that argument was that we had witnesses two of them who had been there prior to the car going by had been doing work there at the apartment complex they had not seen a gun that day they both said that they've never seen a gun lying out in the open at any time when they worked at that apartment complex the gun had asphalt embedded in the sli showed that it had been thrown from a moving vehicle as opposed to somebody just coming up and down gently which why would anybody do that and it was right where the car going by moments earlier so the standard of review on appeal is all reasonable inferences must be afforded to the government you can only reverse of no reasonable jury would have convicted under this set of facts and i submit to you when you have mr black any witnesses during those three seconds that it's out of that the car's out of the sight of the officers is there anybody who could have seen the door window open or was the color window open when it wins when when they were pulled over that up because i forgot to mention that at the moment the car makes that left turn and hits the on coming vehicle we called the driver of that vehicle got hit and he said i saw a guy coming right at me so i was watching the driver and the driver had his hands gripped on the wheel he had no gun in his hands i didn't really pay any attention to the passenger i didn't see what he was doing but the driver had his hands gripped on the wheel so the driver could not have been the one that threw the gun but it's so that's the only witness that you had that could have seen what was going on when the car sort of stopped at that turn is that right the officers couldn't see exactly at that moment and but there aren't any other people around is that correct is that with the evidence that there was just the one person who would have been a witness to that and he did not testify to a door opening or a window opening or that well the window was open i mean you can tell that after they stopped the car that the window was open so you could just pitch it out the window didn't have to open the other way if you if it's if he wants to get rid of it mr black was the only one that could have put the gun where it ended up on the side of the alleyway there could during the period other than the three seconds i haven't had a chance to watch the video yet but is it not possible that the gun was thrown out during the rest of the time because there was a clear view of the car and the passenger side well they retraced the entire route of the car and the only gun found was the one that was found where the left turn was made no no i'm saying can we eliminate all but the three seconds because we would have seen the throw if it had happened other than during the three seconds or or is the angle such that it could have what does the location of the three seconds match where the gun was found precisely right i mean so too except the idea of the defense version of the facts which came up for the first time in closing argument first time they were claimed the gun wasn't in the car all along you have to assume that somebody came along that day the gun until right after this police chase and then a man came along who works there found it reported to the police i think this is what you're looking for he said and so now we get back to the gun having having had to have been in the car who threw it out going to be in the driver his hands around the wheel wells in the car mr black who has a motive who's done this before we've been caught in cars before with guns mr black who said i'm going to have a gun at all times because of this ongoing gang war that was mr black  as far as mr there aren't any more questions about those issues like to deal with mr bangs argument you started off by saying that all emails are going to accepted that the jail so mr bender knew that this one wouldn't get through that's not true that was not the evidence at all in fact one of these e mails did get through only one of them was intercepted and it was just by luck somebody happened to look down and saw the word green light and smash and they thought that was significant but it's not true that all emails are intercepted in fact mr bender one of that e mail to get through that's why when he dictated the e mail to the female accomplice he did it over to use somebody else's pin number so it can be traced back to him because he knew this was going to get through he knew it was illegal use somebody else's pin number when he was dictating to the accomplice what to put in the e mail just call it and i think you get it right on the head this was not a threat case this was a retaliation case and those first amendment law doesn't really apply mr anger client got the instruction he needed the instruction was there has to be an intent to retaliate and an intent to inflict bodily harm that's what the jury had to find so this isn't a hypothetical situation like i had one time years ago a defendant had been convicted and he was mad at the people that testified against him so we had some baseball caps made up well that's more what mr ng is talking about that might be arguably protected speech an opinion on whether people should cooperate with the government and that might not be prosecutable under fifteen thirteen but this is much different this isn't an opinion this is directions to other people to beat up the witnesses in retaliation for testifying at a federal trial and there's no first amendment offense to that said well it was just an impulsive act by mr bender well no it wasn't there was planning that went into this he had to get another inmate's pin number to use to call up the accomplice and he had to dictate to  her what to say and then the next day he had another conversation with her to make sure she done what he told her to do this was not impulsive this was planned and it was only through good fortune that an alert staffer at the prison intercepted one of those e mails and steps were then taken to protect the witnesses so i through good fortune that nothing did happen to them but the plan was for them to be smashed which means beat up and it wasn't just one person supposed to do it the e mail said tell everybody that these guys are snitches and when you see them being plural once you've told everybody then you smash them it was going to be a mob action but it was prevented but it was not protected by the first amendment are no more questions about that let me talk briefly about mr johnson the first argument i guess is that the judge's findings when he denied the motion for a variance weren't thorough enough why wouldn't why i would think that you would be supportive of acknowledging early if you don't want to cooperation sort of a term of art assistance with the police on this it seems to me it's an argument that you both could've presented to the to the courts in support of a slightly slower lower sentence for mr johnson well if that's the issue let me deal with it i haven't heard them accuse me of not giving a five here one was no no i'm not talking about that's why i said cooperation is a term of art i'm just talking about someone who's willing to already told you that mr johnson was the one hundred member third was sitting in a car and got shot five times by a rival gang member and he did what they always do when the police came he said i'm not telling you anything and basically we know from past experience the reason they don't tell anything into the because we'll handle it ourselves that's what the whole list of shootings is all about an hour a day and i'm and so mr johnson would not cooperate with the police we knew he was going to retaliate so we got the indictment quickly and when they went out to arrest mr johnson here's what he said it's a good thing you came when you did we were just about to go shoot up their houses oh really yeah i have a storage locker i'll let you search it you go to the storage locker a t f does and there's two a k forty seven style assault weapons in there bunch of magazines and some other guns and mister johnson vernacular said we were about to go put k s through their wall caves means a k forty seven and walls mean shooting up their houses so that's mr johnson's mentality that's the basis for him getting a lower well here's what we did the guns in the storage locker had extended magazines probation wanted to tag mr johnson with an enhancement for extended magazines which would have doubled his guideline range i said no don't do that he took most of those guns it wouldn't be fair but in terms of well i don't understand that well you're saying that the guideline calculation was not based on the actual facts  case you just said ignore the magazines i said it would not be fair on relevant conduct to enhance somebody's sentence based on guns that he provided when he was nominally cooperating and i stand by that you mean it wouldn't be fair i mean if you had an agreement under one b one point eight then it wouldn't and there was no agreement at the time but just in terms of fundamental fairness i didn't think it was right  enhance the sentence by something he had done which arguably help the government you've made a confession would you say it's not fair to use this confession against you depends on whether the confession was made while he was cooperate or not well what does that mean and any confession yes well i mean in my policy is if someone comes in and gives a proffer and admits things then i'm not going to use those things against him to get the sentence higher don't you have a proffer agreement that says right up ahead of time right in and everybody was you know it was in the it was in the pre sentence report probation was recommending the enhancement and i really made a plea agreement the didn't include the enhancement and i told the judge i want to stick by my plea agreement and the judge said well i agree with you but the point is mr johnson did not after that he did not cooperate and even on day one it was only self incriminating mading information it wasn't just the underlying representation that it was he was trying to and there never was a basis for a five k but leniency was achieved because probation could have and i guess judge politan maybe you think should have well you're saying it was the facts where the facts and i counted under the guidelines and you're saying that you just asked the judge to disregard the guidelines as i understand it there wasn't any immunity agreement i didn't ask the judge to disregard the guidelines i asked the judge to adopt the guidelines that were set forth in my plea agreement so i  want to honor the deal i've made but i understand you to be saying the deal you made disregarded the guidelines and the actual facts of the case no i don't like i don't agree with that there was no hiding of these guns in  storage locker there was just an agreement on my part not to hold him accountable for extended magazines since he was the one that led us to them i just didn't think that would be fair but in your stand i understand  at any rate my how i started off on this basis trying to say that your point was that he already got a break in a sense from not having those magazines kids actually you know and therefore yeah and that's in a sense the sort of credit that he's saying he should have received for cooperation exactly and that was one of my arguments in opposition to his motion for a variance and counsel alleges procedural error but a judge  did deal with these motions he actually asked mr langley during the sentencing hearing don't you want to argue your motion a little more and so he knew the motion was there and there were four briefs back and forth on the motion the judge did i suppose another way to do it would have been to give him the enhancement and then argue for a variance but have done it that way in fact that was one of the i propose that in one of my briefs i remember that now  so mr lang says the judge's reasoning wasn't good enough but if you thought so at the time you should have asked for more explanation he didn't so you were you for plainer there is no plane error because although  man a few words he did address every single issue he addressed the cooperation issue his words are something to think well i do think that he helped the government a little but the government's not making a five k motion and that's not challenge so i'm not going to give a five k through a variance because you're not supposed to and he addressed the other motions as well oh you mean you don't think he could have given it want to do on this anymore but if you if he'd received the enhancement from the magazines you don't think the judge  could've very downward to offset that because it was a voluntary admission of something that would be contrary to some of the law about the use of five k one  except you're effectively doing that by not counting in the adjustment so i'm wondering if it could have been done the other way but anyway i'll ruminate i had my plea agreement so if he had varied on that round i wouldn't feel that i would have gone along with it because i like to stick by my plea agreements and in terms of the sentence being the same as mr parker's well there was a good county jail they both as partners engaged in strong arming of fellow inmates threatening them in order to get protection money from his fellow inmates and they did that together and so you know when they're joined at the hip like that it was not at all unreasonable for the judge to give them the same sentence of seventy eight months which was a guideline sentence for both of them i don't think they have anything to say about mr parker other than what i've already said doesn't really seem to be challenging me procedural error i think the sentence he got based on his criminal history being in category six being a felon in possession of firearms including carrying one  ever raised by anyone i understand the defense did not offer up a proposed jury instruction to to instruct them on the limited use of it did that ever become part of the conversation during the jury instruction  not that i recall but again there was the jury and standard jury instruction that black is not on trial for any act not alleged in the indictment i thought i covered it fairly both in opening and closing they certainly covered it in closing pointing out that mr black hadn't done any of the shooting it wasn't disputed i mean this case was not about trying to accuse mr black of being involved in shootings it was about showing that he was a member of a gang that was involved in a gang war which gave him a motive to have a gun all these different occasions when he was caught with guns but it wasn't necessary and we didn't try to point out any particular shooter was but when the motive for carrying guns is the existence of  gang war and that's the whole theory of the indictment then obviously the government's got to prove what it alleged and so i made the choice to prove it but prove it as narrowly and as an graphically as possible that's why there were no autopsy photos there were no crime scene photos there were no bloody corpses there was nothing of that it was very stripped down and pared so that this argument that being now made stupid judicial we're hoping to avoid that that's when you get that way when johnson gave the information about the a k forty seven that was information about what the gang was planning to do right when he took them to the storage lockers so name names but he said we were just about to go put through their walls the his fellow gang members obviously so you couldn't possibly think about that is giving information about the like you there's i'm sorry you could think about that is him giving information about the unlawful activity of others couldn't you even though it didn't amount to substantial assistance it was me it helped take off the street some guns that were right going to be used by others so maybe what you did was sort it but again there wasn't a basis for a five k because when the time came and i want him more than once trying to get me to be a witness will you testify no i want to yeah but you can give one b one point a protection to somebody even if it gun the government says that the gun had to come from the car but there's two individual standing with a sears saying well if they didn't notice it at that point then maybe people are earlier in the day didn't notice ignoring well it's possible but it's not i mean the other aspect of it with nine which is an appellant appendix at one ten it says and you didn't see the passenger at all i mean i have seen a flash of him but no i didn't make eye contact anything like that with a no and you didn't see passenger door open no i did not and you didn't see the passenger window open not at that time no so at the moment the pulse and the government is talking about when his hair  so your theory is that the window got rolled down after the accident occurred no my theory is that it was impossible the government says that the gun was found there when did the window get rolled and then we don't know it's not the defense burden to  that's a different circumstance but if you look at the time the accident occurs here mr had testified that he didn't see what happened after the fifteen he doesn't know how the gunman got there another testimony of mr head the governor's trying to dissuade the idea that the driver took the gun and flipped it over three o five do you think if the driver had thrown the gun with an arching movement over the roof of the vehicle you would have seen th objection i probably would have seen that because of where the gun one that at that moment and where i was hit i didn't think i would have seen that how far is it how far of a distances between the graduates at least fifteen twenty feet maybe a little more the gun landed behind him he has no clue how to go on there the government cannot place it into the hands of mr black no one saw that throwed a gun thrown out no one saw it in the car car wasn't registered to him no fingerprints no d n a so as this can nobody ever testified that mr black ever possessed what you call it wasn't registered to him although the evidence may demonstrate that ramos had access to a gun as the government argues it does not mean he had access to this gun or that he even knew about it and though the firearm likely belong to either or both a conscientious mind would have to have entertained a reasonable doubt about whether ramos constructively possessed a conscientious mind has to have that doubt especially when the only person who saw anything at the moment of impact idea that he could security threat or retaliation were somebody over what was already known by everybody changes the complection of the case i'd like to go on for but i respect your time  decision in due course thank you