brazill following a jury trial mr brazill was found guilty of being a felon in possession of a weapon he was sentenced to two hundred thirty five months in prison almost twenty years i would like first of all to discuss issues three and four that we raise in our brief the issues are intertwined mutually deep the pendant and the issues are the sufficiency of the evidence and the prosecutor's statement to the jury of what he thought was said on an audio recording and a statement in which he argued facts not in evidence let me ask you a  i don't i submit that there is not sufficient evidence for finding of guilt absent the they were recording and the gloss that was placed in what i said to you is if you lose on all you issues and everything that came into that case was properly before the jury wasn't there sufficient evidence for a reasonable juror to conclude guilt again i would say no because on the recording the and judge matteis in his order on a motion for a new trial motion for acquittal judge matteis went back and listened to the recording in the jury room on the same equipment that the jury listened to it on he did not hear the words possessory words and and you're challenging that right but my question was if that was properly put before the jury then clearly in this case there was sufficient evidence that everything that came in was properly n you would have no insufficiency of the evidence question which i don't believe that the i would submit to the court that the recording does not for a what does does something that they may have found or whatever or what you're saying he never says it's my gun and then the circumstances are such that you can't legitimately infer that the gun in marijuana was his because so many people have access well and that it's what and because there's no connection whatsoever to him but yes i believe that's the true judgment ties and this is that page twelve zero seven of the record in the order on the motion forty nine thirteen expletive man comma mother expletive wind period prints all over this mother expletive period and what's missing the so important is the prosecutor argued that this was a confession if you the prosecutors argument his opening and closing argument is that this is a confession all you really need to do is look at this as a confession he says that the gun is his and what the prosecutor says he's and i've got the page references here he says he he he referred to the recording as a confession and then at least twice and maybe more than twice pages twenty twenty three and twenty twenty four he says if you listen to the recording you'll hear my prints are all word me mine mine mine there is no possess reword and this this this court this case we did not cite this case in our brief  statement of ownership is especially in criminality and this court said is enough to tip the scale to sufficiency when there's a question of whether there's sufficient evidence or there's no doubt that that's the case but here's the thing generally and in federal court there's tons of recordings because of the electronic world in which we live and this question of unintelligibility is one that comes up frequently and the general resolution of it is wrong as you don't put a transcript in that says what theoretically the government wants it to say the jury makes that decision and i would suggest to you if the government based so much of their case on this so called confession and the jury file no confession that that we're going or to your benefit not to your detriment if the jury found no confession that would endure to my benefit because i believe there would have been on acquittal in the case but but but the jury heard it the jury heard it after the prosecutor offered in his argument no evidence a jury heard that recording before the prosecutor's closing argument the jury heard the heard the recording played in in court yes and they had it in the jury room and they had it in the jury room after the prosecutor's closing argument and after the prosecutor said you listen to it it's a confession he says my prints are all over that gun and i submit to the court that if you listen to the tape fifty times there's no possessory word the word mama is not there and i assume defense counsel stood up and said listen to it you're not going to hear that i said i believe my statement in closing argument was listen to it and i don't agree that you'll hear what the prosecutor says he will say and i was the what i felt constrained by in closing argument was at the pretrial conference and this is  the order is part of the record no this is part of my brief excuse me that judgment ty says in talking to mr poole and to me he says you can't say give your opinion what's on the tape in closing argument ok so you need to you need to think about what i'm saying you've got to confine your closing argument to what's in evidence ok so i mean i feel constrained by that i'm not going to say what you know i'm not going to say what i think is not in evidence yet but once the prosecutor did it did you raise it i know you didn't raise it during object and i mean i objected to that to his statement yes oh at the time at the right before that objected but rather than interrupt mistake you went to support it and the judge gave an order and then you allege the prosecutor violated the order but you didn't object at that point i did not i did not interrupt his art ok object to before the argument i made it clear i mean i think i made it clear that judgment tice on the record that i was objecting to this  understand that but once but the president or violated it in your view did you approach the bench before you gave your closing i don't i don't believe i did you know i i made an objection i want to make sure i objected on the record and i'm running out of time i think it's very important let me just very briefly in thirty six seconds  mentioned the second issue that i want to raise which is issue number one the sentencing issue we rely on eighteen u s c nine twenty one a twenty issue is whether tennessee cases tennessee cases that would not be used could not be used by a tennessee court to enhance a criminal conviction in tennessee whether they be used in tennessee they can't be used in tennessee because they are void well but they're boyd because he was given a consent a concurrent rather than a consecutive sentence yes your honor yes your honor and they did and they could and there are three cases cited clifton wally posey the wally case i believe is the best of those cases and i have my five minutes thank you thank you may please corba name is chris poole mississippi nice attorney from chattanooga office let me start obviously where the defendant start i clearly disagree that there was insufficient proof their rational juror could find the defendant guilty  while so disagree there was nothing improper about my closing argument as argued to the jury and in the brief before you even get to the tape before you can get to what i do still contend is a confession there was a lot of circumstantial proof that the defendant possessed far all you had in going back within forty minutes after being told if he was there he was going to be arrested you had the strong smell of marijuana which you can see in the first video when the officer lets him go he says several times how he smells the marijuana and you saying that there was marijuana right on top of the gun there where it was found you also had scales that had marijuana residue in a large amount of money so in this was the argument that i made to the jury it's not a marijuana case but there was strong strong proof that he had the marijuana and the marijuana was sitting on top of the gun so it's just a different issue that troubles me the judge ruled on it the judge said the jury can hear the tape but you can't tell them what you think it says so why did you get up there and tell the jury that you're on what they were going to hear on the tape and i told the jury probably five or six times to go back and listen to it to decide for themselves what the tape said and my understanding of the judge's ruling was my understanding was was in line with what you're always posed to do in closing argument which is not to give personal opinion and i think you specifically said there's just guys you know greg you can get up there and say i've listened to this three hundred times this is i think it says this i never said i think he said this i think it was the same as arguing if you've got a picture in and they say in the corpses a picture a bank robbery the clerk says the person robbing me were green shirt and you have a picture of the defendant wearing that sure you can say look here's the defendant in a green shirt he was in evidence all i did was say this is what he says go listen to it and i kept saying well by all don't say this is what it says i disagree your honor what were you was my understanding of it was we were told not to say i have i think it says this or i have listened to it and to say this is what it says what's the basis for that i've listened to it clerks listened to it i think all of us listened to it and the first time i couldn't understand anything after that i started hearing things i never heard the word my i mean i heard of there are a few intelligible words and that's why the judge told you not to do it but then you go ahead and you say listen he says he says my and that's exactly what you were told not to do it clearly you're on to it that's not understood and it how could you say what it says and base it on anything other than what you heard when you listen to it and how what i can i can hear since how it's in evidence how can i not argue the what the evidence is and i don't think entice ever said you can't argue what the evidence is and the defended sid said what he said on the tape and i could not have pointed to the jury more times than i did but it is up to you to decide what he says and i want you to go back and listen and you decide and you say back there is always you need to until your couple with what it says or does not says does not say but there has to be a closing argument is the evidence is here this is what the evidence means and i took i think he specifically said you don't say you listed much times and i know that it says this or try to put my expertise on it or my or any kind of imprint or of the government that hey believe me i know what he's going to say i am not trying to do that i said this is what it says go listen to it and you decide which is it says and to me you know if i made mistake i certainly didn't mean to a certain did mean to disobey the court's order the way i understood it is not to get up say hey i know more than you wink wink i know what it really took pictures of the gun and said you could see fingerprints all over it and then he loses the pictures no one ever does thus the gun for fingerprints it's totally a constructive possession case i mean it's not an open and shut case why i mean why wouldn't they have checked for fingerprints well just in my response to that would be they we and but jury the timing of when he says that is important i mean he can see the officers they are bringing down the picking it up and he starts in half and prints all over him and a gun i can't and i think the jury reached this conclusion if i don't know what the jury is i but they clearly were they have the impression he was saying his prints were on it so i do think you had strong circumstantial proof and i tell a story to start saying i think the proof of circum strong circumstantial that he had that gun that was his gun it was going back to good but i do think you can hear him on the tape say it is a printer on the gun and so we did know that the argument on the pictures to me is somewhat of a separate one of them and then the prints i mean obviously  the officers could have could have printed the gun right but why aren't they and why wasn't he entitled to the negative inference on the pictures i think the case law is there has to be showing that he intentionally got rid of this in order to deprive it from the defendant that it hurt the defense case i'm still not clear after all this time and all the multiple filings of being there how it could have come in any better than it did for the defendant with regard to cross examining the officer if the picture show and i thought this what i still think is important the picture was not of the crime scene the picture was not of where the gun was found with the marijuana on it or leaves or whatever this is basically it could take a picture of the judge at the police station would have been the same thing they had removed it there taking a picture separate from everything  had the gun in we could take a picture the day of it would have been the same thing so i don't understand what how it could help their defense if a pic if the picture looks like hey there are some prints on it well mr moore did a good job  arguing to the jury hey you've seen the gun here today it's been wiped clean there are no prints on it and he and the defense and officer said yeah i thought i saw prints on i mean that was in the record it was on the video so his argument that the police had i basically tampered couple months mr moore asked me again for the pictures i went back to the agent at a t f in the officer and said where are the pictures and i've already asked you before of course and they said there are no we're back to mr moore said there are no pictures can you tell me where you if you're reading in a reporter something like that so i can find it go confront them with it he said i didn't read it report that was the e mail response which was true it was on a video well after that if it was no longer in the video that he noticed it and i think it's because he knew he had a strategic advantage at that point he clearly crossed that officer with also says i didn't take any photos and he shows a video of him taking a photo there's not much better cross examination than that where the defendant had some trouble in this case as most everything was on video so i think the  honest i think the court found the answer was honest but the jury could decide for themselves but everything they saw on the video and heard on the video what occurred out there was well a she was and that certain evidence was all if there's an issue here and it's probably shouldn't even be interjected but it seems like it's more of a brady issue if that photograph showed no prints on the gun and you withheld that photograph and you might have a brady issue but as far as the evidence collins the evidence was what was on the heart of the car and that did come into evidence absolutely yes and that's why i pointed out to me the distinction between a picture of the crime scene of where the gun was found in the condition before anybody picked it up and this is moved in there's police cars and lights and it's out it's not back in the bushes where it was found it as i said it be no different than taking a picture once you got it back to the police station where we brought the gun in and  we had the gun they are so conditioned to say am i mean could they have lifted prints at that point or they've gone by then they are supposed to first of all at their policies to make the gun safe so that they unloaded you there is to make the gun safe i'm sorry to unload to make sure th percentage of coming back a prints on a gun are really really really low but they could have done that and they didn't do it you have to sort of trilogies cases for d n a and prints and we're possession is it is more a question or certainly the case is a sin first where they think the defendant or not i did to the jury apparently due to where they think the defendant has said his prints are on the gun it's probably not a case that rises right to the top of their list of said hey we need to figure out who's going to do is they took it as a confession that doesn't mean they should have done it doesn't mean they should have tested it if it came why they would go anywhere other than if they follow proper procedures for storing it and things of that nature i don't think they should here but i mean i don't have a scientific answer to that we could have we've tested done slater when defense ma'am or you don't test the gun because when it comes back from the prince then the defense attorney said this they tested the gun and my client's principle which is why if they were to run void that the law you don't test at all but of course if they ask we go back in and ask a test we're going there's it's always a catch twenty two with a gun in prince because there's always the argument they could have printed it but they didn't because whatever they knew his prints were on it and then you never you know it's unfortunately not c s i or or t v where there's always prints and there's always the i've been prosecuting federal system for fifteen years the d a s office for four years before that i could probably count on my one hand at the time that we got prints off a gun but if the defense asked for we always sent it in the lab can tell us whether or not they can get prints on there's also reason for the defense not to ask it when the defendant said the printer on it he probably didn't want one to find out his prints are really are on so the up in my mind the important issue was whether or not the defend it was brutal continues to argue that the defendant says prints were on the gun he never said my prints are on the gun and as this court that the case that i mentioned to you earlier shows how important that possessory statement or the lack of that possessory statement is in the question of sufficiency of evidence and all you have to do is look at the record and look at the closing argument the closing argument mr google says this is page twenty twenty three he says the recording says my prints are all over that further down he admits his prints are on it he's admitting that his prints are on the gun page twenty twenty four he's there to get his gun he says my prints are all over that go further on in the argument he tells you his prints  he tells you that this is page twenty thirty eight excuse me he tells you that his prints are on the gun my prints are on that i print page twenty thirty nine my prints are all over that my prints are all over it page twenty forty blankety blank gun my prints are all over it you know and it's a small point but in addition to never sent there's no possessory word on the recording not at all in it in addition to that the word gun's not on the team the word gun is not on the tape the word wind is on the tape that was what was  when it was easily discernable to him page twelve o seven of the record he hears judge matteis hears expletive man comma mother expletive wand prints all over this mother expleti it's not what the it's not what the government are  argued earlier what did the judge say the judge said you can't give your opinion what's on the tape in closing argument ok so you need to think about what i'm saying you've got to confine your closing argument to plots in evidence oh and the closing argument wasn't confined to what's in evidence i mean the larger question is can he say what he thinks is on the tape but if you get beyond that is there any point at which the jury could be told what either side contends the tape says i would submit not i would submit that i would submit not i would submit under the judge and this was argued in front of the judge a bit under judg his instructions i submit not i think it's like it was if you had a tape that was all static that's all it was just white noise then i think it would be improper to say if you listen to that tape you're going to hear someone say that was my gun because you can't hear anything on it i think that would be him i think it's just as improper here to suggest that to the jury differences of a mistake in the first example of rest all static it would always able to comment on what is in evidence on the if it was a bank robbery and you had x security camera that showed a picture of the bank robber with a hood on his face and teller nonetheless was able to say she could identify the defendant the prosecutor could argue with the jury got to see that tape you look at the tape you decide but the teller was there and she says that was the defen that's permissible then it isn't i just see a difference between the photograph and mr poole used a photograph as an example and i had a hard time with is trying to articulate how the tape is in evidence the recording is evidence and whatever is on that recording is in evidence and you can can i was a prosecutor you can comment on evidence but here where the judge said confine your argument to the two points in evidence i submit that it was improper to argue words that are that to judge matteis two  like thank you very much there being no further cases f