insufficient to prove possession of a firearm in the prosecution's case the essence of the case was that while mr garcia was running he was observed by a police officer to have dropped objects there was no description of those objects later a few minutes later there was a weapon a firearm found in the area where the objects were seen to have dropped is important to know in this case in this is the essence of the defense in the essence of our position on appeal that there was no witness no police officer or anyone else that observed mr garcia in the possession of a gun nor any object that looked like a gun or was described as a gun he was not the owner of the gun there was no testimony that he made any admissions or statements admitting ownership use or possession there was no gun or ammunition found on his person he was arrested in a very dark wooded area late at night in an area was where there were only an unoccupied building there was no testimony he lived there or had any ownership interest or any dominion or control over the area importantly again no arresting officer no police officer no witness of any sort no eyewitness saw him with a gun or even a shiny object a shiny metallic object or a dark long object or any kind of that pretty good circumstantial evidence that you know you drop something there's no question your honor that the evidence claims that he dropped something but again the common thread through the sufficiency cases both in this circuit and others is the observation by the police or an eyewitness who is credible a gun or an object fitting the description of a gun in the defendant quarter any other court ever said i realize some of the cases you're right i mean you see someone drop something and it's scribed more than something so that the description goes not necessarily to a gun but you know shiny or something on the lines of either a gon or what looked like a gun if you don't say that you don't have enough evidence i believe so your honour's a better fact i believe in your very own case where you wrote the opinion in us versus arnold i believe that that case  peaks right to that very point and specifically in that case i wish you're not grasping the distinction between sufficient necessary but keep going if you think you are but there were two cases in that particular opinion that were distinguished one was from this circuit and the beverly case another from the fourth circuit the blue case and in both of those cases there was this common thread of and i witness observing it gone or what appeared to be a gun in the possession of the defendant and not in the arnold case where you made a distinction because in that case there had been is a situation where there was a woman who was actually threatened by mr arnold she saw a weapon in his hand a handgun in his hand minutes before the police discovered the handgun under his car seat and you talked about in that particular case the evidentiary gap that existed because no eyewitness testimony connected the gun or an object looking like a gun to the defendant so this is the same evidentiary gap that exists in this case and i would submit that sustaining his conviction that his garcia's conviction would lower the evidentiary bar for possession cases clark this discussion makes it sound like this  unusual but actually it's a pretty typical cat i mean it's very pretty common fact pattern that officers see an individual throw something or get rid of thumping the something is later fail and the inference is permissible that the something and the defend are connected to each other in a way that amounts to possession i mean this is a pretty routine  in the actual possession cases as well as in the constructive possession cases it seems there every case that i've read has this as a indicated earlier the common thread of somebody seeing a weapon or what appeared to be a weapon or firearm in the possession of the senate that didn't occur here judge no no no no no that's not that's but that's not it's really typical for four officers to see something of an or three or gotten rid off whether it's drugs whether it's a gun i mean that's just a common fact pattern well in the constructive possession cases usually that arises where there is something of the fact that at least at the point you know you know the inference is that the defendant actually possessed it at a given point i mean once it's gotten rid of so to speak the defendant no longer possesses the ability to control it which is necessary for constructive possession now you might say he had the ability to control it at the tap he actually possessed it and that's always a possibility you know the point at which actual and constructive possession intersect but but you know actual possession is a much more natural concept for this kind of fact pattern isn't it it is and i contend this is an actual possession case and that's why i was saying based on the the case law in this circuit as well as others there is this common thread that must be shown in order for there to be sufficient evidence given to question i think you able to do this with guns this common thread argument you're making yes but what's your answer to her question about their officers are chasing somebody an object is dropped that's all they can say and they find a baggie of white cocaine i of white powder it's cocaine that that's the fact and that happens all over the place no one bats an eye about saying you saw them drop something you get there a few minutes later it's cocaine well i think it's  different from a gun you know both times it's an object it's not they didn't say i saw a white powdery substance be dropped they saw an object be dropped so that's the line of cases she's talking about because there's usually other factors well that's what is  least another factor here the gun was found not completely immersed in the snow and it also had drops of water on it permitting the inference it had been we contend that the snow actually covered it's clear from the picture because the handle and the barrel now recall that you testimony at your fiber that the prosecution can argue that  officer that found this stet said specifically this appeared to have settled on top of the snow to indicate again because it had snowed recently hadn't snowed at the time wasn't snowing at the time as if it had  settled into it the specific quote was a settling top of the snow now when you look at the photographs that that can't be that's not possible but it's clearly where most of it is buried under the snow which is another indication it had been there for some  time it was it was buried in the photographs clearly show that as i indicated in brief pictures worth a thousand words that clearly there's a good major discrepancy between the testimony of the police officer and what the photograph depicts how would you compare this case to where the bailey case was clearly a direct physical control situation in that particular case again the police did not see bailey holding a gun prior to his arrest or anything th looked like it coming so it's very similar in that regard and there was no there was an evidentiary gap in that case too and specifically it was that that there was no testimony that by a police officer or anyone else and oftentimes in these cases the description is given is a shiny metal object or a dark object or something that had the physical description of a gun none of that occurred in bailey knight it occurred here so it's very very similar and there was there was no question but that garcia dropped his hat is that correct there was evidence that a hat was dropped and found but there was no admission  was his nor was the had ever admitted into evidence he was concerned about if there was a there was a statement that he was concerned about a hat that is correct and the hat was in close proximity to the right it was  and something else would talk about other things that are shown or not shown in these kinds of cases in a gun case as opposed to a drug case there was no gun residue testing here no fingerprints found no d testing on the gun and also it's important that when the nine one one call was made here the person who was seen to have had a gun or thought to have a gun by the collar was wearing an orange coat that was the description very clearly very clearly by the witness said that however mr garcia had a white coat on and it was clear he did not fit the description of the individual who was observed by the nine one one call or  charge that is correct but i'm talking in terms of what else might have there have been and it's the same thing a lot in a drug case were in a constructive possession case where we have so many other things usually looked upon for example i mean first of bowman's excuse me first of movements a disobeying a police officer something found in plain view something matching ammunition found on an individual or something matching the object was found in since where drugs are thrown some person may have drug residue on his hands to be something else besides the actual throwing of something that indicates dominion and control or actual possession and since i only have a few seconds left i just want to touch upon very briefly i do have an hour oh my brief for my argument concerning the prosecutor's improper vouching argument and also i think it's important that the evidence here whether the instruction was given it's just would be a typical instruction to get there was interesting lee this was a something of some contention in the testimony and the police officer clearly said  think at least once if not twice that it was not uncommon for individuals in that area to run when police appear very common as a matter of fact thank you  muster firm unless the court finds that no reasonable jury could have convicted based on the evidence before it the evidence supporting the jury's verdict of guilty included quite a few different elements that the court has already touched on but i just like to highlight for the court here going chronologically first there was a nine one one caller who heard approximately three shots one closer to her residence and two approximately two further away she looked out the window and she saw a person in an orange coat running west down the hill the police arrived to two minutes later at eleven forty two pm and when the police arrived they saw the defendant seize a police car and take off at what the witnesses described as a full sprint the defendant took off sprinting and clutching his waistband as the police chased him and the defendant was wearing a white coat the defendant jumped over a place that was not common to see people using that space he jumped over the fence and got caught on it which gave the op the officer an opportunity to catch up to him and as he stumbled he again tripped in the brush and find that we're in this abandoned property and as he felt exactly handed there now in the chase as he was jumping the fence the officer saw objects fall from his person isn't your friend on the other side right there if you look at our cases from between sufficient necessary but that most of our cases will take all the gun cases i could be wrong when you have this throwing something while you're being chased did the officers usually describe it as more than just an goes cases well the case that i see and i would present to the court as being the most useful here is the right case your honor and it's not a case where the defendant is running but it's quite similar in terms of the other facts and in that case the conviction was up held  the face of an insufficiency of the evidence claim when there were two men outside of a house who both went into the middle of the road and bent over picked up an unidentified object went over towards a car bent over and then went back to the porch and the officers didn't see what that and identified object was they didn't describe it as a black object or a silver object or a long object as they do in some other cases and the court held that that could that there was sufficient evidence for both an actual possession and a constructive possession based conviction was this tribe is an actual possession or constructed were this was tried as an actual possession case your honor the instruction was given for both that the jury can consider actual or possession or constructive possession but the government's theory is that it's an actual possession how would you deal with the case the bailey case your honor came down to the testimony of one eye witness who changed her story at trial and the case the prosecution relied on her statement closer to the time of bailey's arrest where she said that she saw him with the weapon or she gave more description that the prosecution wanted to rely on and then she changed her story at trial the  prior statement was only able to be used for impeachment so i had no substantial value to the case and the court in bailey stated that it was then left with the evidence that bailey was seen evading or fleeing the police so bailey i really different in a few ways first that there is more evidence that we have in the garcia case than there was in the case you're saying in the case there was not evidence that something was dropped that the more evidence that we have  well in the bailey case it was a it was an issue of there being multiple people who could have been the owner of the firearm in the bailey case he was driving east a stolen car that somebody else had lent him there be multiple people here given that this was an aband odd that could have been that's a plausible hypothesis that it was someone else's but the fact the placement of the snow and the testimony that it had snow within the last twenty four hours handle is buried and the tip of the barrel is buried however using the common sense the jurors could rationally have found that climbing over a fence and dropping an object of two to three pounds from waist high into fresh snow could have buried parts of metal firearm and the droplets are really quite important here the fact that there are water droplets on a piece of metal in the snow at ninety eight indicates that and the temperature was twenty three degrees indicates that this weapon had not been sitting in the snow for any period of time the officers also testified that the only footprints that seemed to be in the area were those of  mean i'm sorry of garcia and of the officers who pursued him so the and the fact that it was a completely enclosed property i mean all of those facts indicate that a reasonable jury could have found guilt beyond a reasonable doubt as they did here the other thing i just want to write is an unpublished case do you do we have a published case that's why i'm interested in the analogy shared judge givens instinct but there are a lot of these cases were officers following chasing something strong in turns out to be judge drugs and doesn't take much to still have sufficient evidence yes you're on vacation i agree and i think as judge given pointed out that is a common uncommon case i don't have a drug in pursuit case i think that the williamson case is quite similar if it's a gun case it's not another job it's not a drug case but in williamson the defendant was seen fleeing also clutching something to his body and dropped a black object williamson is also in a public correct that maybe the case here i have decided on  looked like a rifle so there are different ways that the witnesses are describing these items and in none of the cases has the court ever held that describing the color of the object is the critical element looking to be involved in the drug cases i didn't  coke from a distance is not discernable is anything other than an object usually i would agree or i know you did not look at but i did i don't have citations for your honor but i think it's you know common knowledge that there are a multitude of cases just like that in in drug cases where you know officers arrive at a residence and a baggie or something is launched from the second floor and they find drugs in the bushes i don't think that's an uncommon case where people are driving and there's a traffic stop and something goes out the window where drugs are found i think that those are common and probably more analogous your honor than a lot of the more facts specific cases where a gun is thrown but there's there is no difference as far as i'm aware between cases where thrown and drugs are thrown where you need more evidence to show that the gun was possessed by the defendant than that the drugs are possessed by the defense you know whether there's a new supreme court case on either guns or drugs saying that it's enough don't have a supreme court case for your honor i don't i don't have a citation for the court at this time i also want to address the issue of the the instruction on flight there was an instruction on flight that was given by the court was a specific instruction that the jury could infer that the defendant fleeing may indicate his his consciousness of guilt however it may also indicate that he may be running for some other reason and th really ties back to the bailey case because in bailey the court was left with the fact the defendant was fleeing and that defendant was found with two bags of cocaine in his pocket so the court decided that bailey could have been running quite possibly because he had the cocaine in his pocket whereas in this case there was no contraband found on the defendant other than the gun which was found near nearby he did not have bags of cocaine in his pocket or any other type of contraband there were no warrants for his arrest at that time so the evidence here is much stronger in that his potential guilt of consciousness is is more indicated by his flight because he he had no other reason to be running but there was the testimony  who testified said that her car had been shot at multiple times in front of her house and she had called the police before so it seems that this was a high crime area it seemed that there was a lot of crime and that the police were probably frequently being called i don't know that it's  point against the government that mr garcia took off running simply out of pure fear of the police i think the reasonable jury could have found that he took off running because he was in possession of this firearm had recently that had shot expended two of the five rounds that were found inside of it defendant jumped the fence and within several feet of where he was tackled to the ground the appellant also mentions that there were there was a lack of certain testing d n a testing shot residue testing fingerprints fingerprint testing was done but none was found no fingerprints were found in the expert described it's not uncommon for this type of material this type of grip and this type of temperature and then witnesses also explained why the other types of testing were not done in this case i'd like to briefly address your honor's if i made the issues of the improper statement allegations and the sentence if i mean this demons in closing argument were not improper the government maintains that the statements were entirely proper and in line with the diff with the  judge's instructions which preceded the closing argument now and then struction as the judge asked the jury to decide for themselves how believable each witnesses and he said ask yourself how believable will the witness is in light of all the other other evidence and he asked the jury was the witness testimony supported or contradicted by other evidence that you found believable now was the tenor and the theme of the closing argument and the rebuttal that the witness  clock was believable to the jury not because of the prosecutor's personal opinion and not because of the backing of the united states attorney's office but because there was other independent corroborating evidence that the government mentioned witness because the context of that statement your honor was that the jury can tell that his statements were truthful because it's backed up by the video by the photos by the maps by the other officers testimony and eye witness testimony if if the prosecutor said i tell you jury he was telling the truth would that be bout you if it was left at that and nothing more your honor and it could be found to be vouching so how is this any differen telling the truth he told you the truth about what happened that night and then he goes on to say and you can determine that he's telling the truth because of x y z that that he that he said and other evidence that came in or if you had said i believe he's telling the truth that if the prosecutor talks about i believe and leaves it nothing more or that the witness has no reason to lie or it will affect their plea agreement that it crosses the line to vouching but instructing the jury that they can find a witness is credible because of all of the other independent evidence does not  bag of drugs versus a gun be different if so just just assume all you have for the sake of argument is you know you see an object dropped you later pretty close in time find a gun in one case the second case you find a bag of drugs just assume for the sake of argument there's case law out there that says the bag of drugs that's enough if you saw an object drop can you think of a reason why exist can you think of a reason why the gun possession case would be different from the drug possession case if there is such a case like that it might be hard to distinguish your honor but i do know that in all the gun cases the drug cases that i'm aware of there's always the distinguishing factors there's additional factors of evidentiary nature and that's why again in the immortal case you talked about the evidentiary gap and i think that that's all that drug cases on from earlier with the gun cases and there are there's a distinction in that and for some reason guns are treated differently than drugs and just in the way that the log reviews it and the it's unclear the case is explicit about that i don't know i don't know for your honor frankly that if there's an explanation of the difference between the two i can't point to that it now there is a difference but i thought it would be helpful if some court talked about that it would be but i'm not familiar with it but i do know that the the two cases that were mentioned by the prosecution the right case in which case are unpublished i don't know many published cases but i do know in a drug i think i've read every gun case there is and it appears that this evidentiary gap is talked about and there's a clear distinction between the cases were found to be sufficient scenes of evidence and those insufficient and that is either an eyewitness seeing an actual gun in the possession of the defendant of an object described as a gun fitting the description of a gun to a shiny metallic object and over a dark object looking like a gun and so forth a clear distinction there also i just want to mention on the photograph i'm sorry my time is