he'll concerns the one twenty four c count the use of a firearm in further into drug trafficking crime the government's evidence failed to prove that the two critical elements in this to prosecute the statute first that there was a firearm and second that it was carried or possessed in further and of a drug trafficking crime the evidence was clear at trial that no firearm no weapon of any kind was ever recovered from mr my u instead the government relied upon and circumstantial evidence and the witnesses statements that he viewed an object that looked to have the weight and feel of a firearm this witness was in fact a self proclaimed firearms expert and agent a law enforcement agent he claims that when mr a my i got into the vehicle his vehicle that was equipped with recording and video equipment he held an object  about an inch from the agents had that object he said again had the weight and feel of a firearm and that while the agent and mr o'mara sat in the car with this firearm allegedly wanted from his head he didn't say a word despite the fact that there were a number of agents who were sitting it within proximity and the fact that he testified there was a firearm in proximity to his head he didn't utter a word said i i'm not sure what nature of this argument is are you saying that the jury just couldn't believe what he testified to in open court judge there's two parts of this argument for the first is that it goes to two two issues first of all that it is an unreasonable conclusion on behalf of the jury and i understand my activity that's being conducted and this is coming from the united states versus l are cases cited in the brief in this case mr meyer got into a car a vehicle with individuals who he believed to be friendly he believed them to be his friends whether he knew some of them well in fact he had he had he knew some of them for years and years and then there was the other undercover agent the undercover agent was acting as a latin king gang member and when mr meyer got into the car there was an exchange of handshakes which the agent testified was a showing of respect and friendship and so the consideration of how this weapon was displayed or how it was discussed if such a weapon was displayed is relevant to the consideration of whether or not it was carried in further and of a drug crime in essence or in short there was no reason for mr my answer bring a weapon to this particular meeting they were friendly there was no hostility there was no need to protect himself from anything other than some other gang rival gang members and when that argument made to the jury if they want to yes in the jury rejected that argument the jury rejected the question here is whether it meets necessarily that's why it's a jury question but that's that's correct your honor are two questions in this case one is whether or not the government established that the the weapon was carried in further and and the second is whether the government established that there was a weapon and back to that issue the question with respect to whether there was a weapon is not a credibility issue the question of whether there was sufficient evidence to establish that this object such as there was one was capable of expelling  projectile so you're saying even if the jury so it's not an issue of the credibility even if the jury believed the agent that it was you know a big on there was some reference he made some statement afterwards that that isn't enough that that wasn't enough that definition testimony was not enough to show that he could be fired and it was a real well that is precisely the point you are at the government has relied upon united states versus more and that was cited in the supplemental citation of authority in united states versus more although the firearm was not recovered there was testimony that there was the witnesses were able to see bullets being taken in and out of the weapon that evidence is exponentially stronger than this case where there was no evidence at all that this weapon could be fired that it could be an object that would expel a projectile as is required by the statu and if there was no there was testimony that there was no testimony that this object that this object if it was a firearm could expel a projectile none whatsoever  if there's no further questions about that particular issue i'll move on to the second well really the final issue as is presented in the brief and that is the sufficiency of the evidence with respect to the rico allegations this case is that it's a r follow up to a number of recall prosecutions a gang prosecutions it was a rico prosecution with a single defendant related to the united states versus denver on oks and the indictment in this case the same as a second please there was an audio recording that talked about expelling it did it as a matter of fact in fact your honor what that audio recording said or what it what it reflected was that he stated that the boys used it in the hood there was no there was nothing more specific than whether or not it was used in the hood and i will respect fully return to that audio recording there is no evidence that would suggest would support a finding a reasonable jury finding that that was the same fire talking about now the recording that you're referring to is i believe on november third and the the charge is the use of the firearm in further into drug trafficking crime on september twenty third in that recording mr meyer says  something along the pistol that i had the other day i think it's a stretch to to say that the other day in september twenty third when you're having this conversation on november third that there was another meeting and no one there no but the other part of that recording that's relevant to that question there was a third but it was subsequent right but i mean there was only one meetings but you're on it the other part of that recording that's it that's significant to that question to your honor's question is that he m sure that these are the same individuals to whom he showed the people he said that was you guys right he doesn't remember whether or not it was it was the same individual suggesting maybe it's my maybe to to not so much to the credit of my argument suggesting that he could have had a meeting with other individuals to home each on a pedestal again though i think the relevant question for the one twenty four c is that there's no evidence of this weapon was possessed in further into a drug crime it did nothing to the drug crime it's was merely present at the time of a drug transaction and mr meyer has never seriously contested the fact that there was a drug transaction just that the firearm was possessed in furthering of that transaction and agent gave about the gun because on cross examination the defense counsel said you know there's nothing on the tape that makes any reference to the gun and he and the agent is really careful because he knows about the pretrial ruling and he says not at that instant no not at that instant with all due respect to the court's ruling and we have raised this issue on appeal it is one of the other two issues that i won't spend a lot of time focusing on the at the question that i ask is i was i was trial counsel is whether or not something whether or not the agent made any explanation exclamation or statement at that time that mr i was in the car i don't think that that opened the door to  statements that followed his exiting the vehicle and the reason the reason that i maintain that position is it's unreasonable for the agent to have not to a failed to make a statement while mr maya was in the car if his testimony was true if  testimony was to believe he believed the danger to him occurred while mr m i was in his car and the after the fact statements add nothing other than essentially hearsay in this case because they did also rely on the statement of the informant who was not present well you know about the pretrial ruling in this question that you asked was here's your quote despite the fact that you're aware that your vehicle is equipped with recording equipment you know anything about the gun is that right so i mean you knew you were playing with fire i knew i was very close as there was a great deal of discussion between myself and co counsel as before i asked that question and i knew what could it would drop since i knew what i believed at that time and as a matter of fact i continue to believe that it was still the right thing to do to ask that question and s for the for what that for returning to the question of the recall indictment there were a number of specific predicate acts that were charged in the indictment that include drug trafficking murder attempted murder conspiracy to commit murder and extortion and in this case the government's evidence failed to prove that mr a maia either personally or by conspiracy engaged in those predicate acts and specifically i'd like to begin with the drug transactions because the government relied in part on the two thousand and ten drug transactions to prove predicate acts mr meyer was expelled from the latin kings in two thousand and eight because he had some interpersonal disputes shall we call it with the corona of the leader of the land kings he was removed from his leadership role and in fact removed from the gang at that time he continued to associate himself peripherally with latin kings but at the time that this transaction occurred in two thousand and ten the record is clear that he had moved out of latin territory was actually living in rival gang territory he entered into a vehicle with someone as i said  somebody he had known it it's not in the record but somebody had actually it was one of his former self mates and an individual who is portraying himself as a latin king gang member that individual was an undercover agent the government argued in its closing its closing argument that the conspiracy to distribute drugs or as a predicate act could be established by mr meyers conspiracy with the undercover agent i think the law is clear that one cannot conspire with an undercover agent i see that my light has has come on and all of these issues are addressed in the brief if there's no specific questions i would like to keep some of my time for them morning on our initially addressing the one twenty four seat conviction i just want to be clear that the argument that counsel began to make here about an unreasonable conclusion reached by a jury in this case was never raised in their opening brief their reply brief it involves even more strenuous standards of review by this court than the sufficiency of the evidence and i think by the end of the argument she moved on to the sufficiency anyway so i just want to be clear i don't think that not that the defendant could prevail on that but i don't think that's really the argument being made of unreasonable conclusion by the by the jury focusing on the arguments that are raised  terms of the sufficiency of the evidence that the weapon was designed to or readily converted to expel a projectile first of all the law is clear that the evidence that the weapon itself does not have to be retrieved and introduced and cases cited in our brief including the fifth circuit decision in which was violence against women's act case but did involve and i'm twenty four c charge and the jones case which is a second circuit case make it clear that lay witness testimony by itself is sufficient in both those cases you just had lay witness victims one case to a kidnapping another case to a bank robbery saying i saw gun and that was  but in this case that's not all we have here i mean here we do have an experience not self proclaimed expert and experienced law enforcement officer experienced investigation of guns who testified that the defendant displayed a silver automatic pistol less i mean this this particular transaction has to be looked at in the context of all the other evidence in this case and the evidence in this case was that in the little village neighborhood of chicago in this latin kings territory there were rules there were lifestyles there were practices that involved you don't go into rival gang territory unless you're armed and of people from rival gang territory coming to your section their arms he was in territory he was conducting a drug deal and he was walking where he both on tape and this is all on tape was coming through an alley will rival gang members were and he's carrying cocaine and he's going to a deal where he identifies himself as a latin king he believes he's dealing with another land king he sells drugs and he's leaving walking through the same alley where he is on tape both during this deal and the later deal talking about how that's a hangout for rival gang members so our argument on and further it is the yes he was carrying that weapon to protect himself a latin king and identified land king in the evidence is clear about how they were identified both through tattoos and you know clothing other things that identify there's a lot in killing that he is tracking through this neighborhood with these drugs with drug proceeds and he's carrying a gun to protect himself and in fact when he presents the gun and this is heard on tape and he's pointing it in the that in furtherance is that he believes his belief is he's meeting with another latin king that's who he believes he's meeting with and this latin king knows they're meeting in rival gang territory to defend it and point it out he wants to assure him i can conduct this deal i can protect this transaction so for both levels it's it's clearly and further and i would just also point out in terms of it being an a firearm that meeting the definition of a firearm what happens is less than a month later meaning with this undercover agent in the exact same location the defendant just talks about refers to the rival gang members in the same area and he says remember quote i pulled he had and this is quote showed as a joe w d showed them his talking about the pistol he showed them and that at the private meeting and then he got rid of it by having it dumped and chopped up and i'm adding the e d but dumped in shop is in his thing because some boys in the hood had quote unquote used it and that's all and government exhibit five and again looking at that testimony in the context of the entire case the testimony of two longtime leaders longtime leaders in the gang  in the latin kings was that when guns had been used in the hood to particular in a shooting and particularly in a killing but in a shooting in general those guns were dumped they were chopped up they were destroyed so they couldn't be  after you know tied back to the the gang and after also talking about having chopped up gotten rid of the god he then asked this undercover agent if we could get him again quote handguns that asked for the handguns so i believe all this evidence hotjobs by the testimony of the cooperators longtime gang members that you don't go in to rival gang territory you don't go in these neighborhoods without real guns you don't carry toy guns w position yes your position yes door was open yes and so the question is the c i statement yes you know because the theory was that it was korans response that should have been admitted the agent's statement that it was a pistol but then on the redirect you're right your honor they don't they put in this they put in the agent's initial statement they put in the c i statement and they don't put in the hell yeah by the agent afterwards but they immediately correct that to whitney i don't think that that agent or the prosecutor in fairness to them were prepared for that kind of redirect they didn't expect this to come in so i think the cover meant though quickly corrected it within two witnesses by introducing the entire conversation on tape and in in transcript form that included the c i statement and the undercover agent statement so it was immediately corrected and to the extent there was still error there on the record it was beyond a reasonable doubt harmless because the evidence as i say that there was a gun which is the only thing this went through was overwhelming overwhelming that even on the sufficiency of the evidence there's no dispute that that a pistol whether it was toy or real may have been in dispute but that a pistol and i'm not saying in the trial court they disputed whether there was a gun but i'm saying even on appeal there's no sufficiency raised as to whether  that the jury got it wrong something was shown it's just a question of whether we prove that it was a real gun so but even if you go to all of that i just think the evidence that i went through just a minute ago including the defendant's own statements is that it's overwhelming and as i say it was corrected relatively quickly and pretty slam dunk on the record corrected in the sense that we put in the transcript we put in the recording so the jury actually hear the words and moreover we never argued they never argued the government never argued this for the truth of the matter or even referred to the c i statement it was only raised in rebuttal in response to defense claim that the agent had never said anything and was pointed out that he had but it was never offered for the  been raised as issue on appeal either but no no instruction was given as far as the rico conspiracy and and basically the argument there is that the evidence failed to show that that the evidence failed to show the requisite agreement by the defense did it crowd or commission of at least two predicate acts and again this is a conspiracy case so it's the agreement the acts don't have to have been committed he doesn't have to have participated in them and moreover this is also charges in aiding and abetting a conspiracy but addressing the drug the dr in particular what defense council focuses on these two last you know drug deals in two thousand and ten and they're of course important to the government's argument but i think again drug trafficking has to be looked at in the scheme of the conspiracy itself and the whole racket ering enterprise and the drug trafficking was intricate part of the racketeering conspiracy and the defendant was in support of him in full agreement with that as being important part of this conspiracy  could see that not only by the fact that he when he went to the drug deal you know he identified as themself as a latin king and he met with a lad king and the gang therefore provided a short cut  trust to buy things from and to deal with but it's also true because the constitution and the rules of the gang regulated what drugs could be sold and couldn't be sold it for bad gang members from taking our contacts on credit from another ga regional incas to to to address that and moreover not only to gang members earn money to pay their dues from drug trafficking well defend it was a regional in ca you could get a break from have to go to these bust out if you gave more money if you were a drug dealer and you needed to miss a bust out in the neighborhood the mandatory bust outs in order to go do a drug deal you could pay more dues more dues that by defendant's own admission he was going to agent but they're also important in the context of the whole case and that's what i would just urge the court to do as it does is look at it in the context of the whole case so unless the court has any other questions or issues we would  briefly with respect to the government's argument regarding the the in further into aspect of the one twenty four c the government relied repeatedly throughout their argument throughout the trial and throughout the briefing on the notion that there were rival gang members in the area  from looking at the argument as a whole that's virtually a concession that this weapon was not carried in further it's of a drug trafficking crime robbery of a rival gang members is not part of the equation there was no evidence that robbery was one of the  goals of rival gang members in fact threats to personal safety and not right not robberies not in a personal robberies was the concern here so when mr miah says on the on the tapes i got something for the asses or  the like he's not talking about protecting his drugs he's protecting about protecting his own personal security there is no connection between this weapon and the the trends of the drug trends the underlying drug transaction moreover there's really no evidence and it's it's pure speculation to suggest that this weapon was brought to make the other other individuals in the car feel more comfortable that mr meyer refers repeatedly to walking back and forth in the alley with the young members of a rival gang play basketball and that that put him in some personal the hearing weapons in this instance it is judge in this instance in light of the the nature of the drug transaction in light of the factors that this court instructs courts to consider under l or it is incidental in fact the the consideration at here is mr miles personal safety and not the drugs and not potential robbery with respect to the rico the government again and this is in our brief the government refers to the rules and the nature of conduct that w expected by members of the latin kings what it doesn't prove is any particular drug transaction during the period of time that mr myler was regional in ca what it doesn't prove is any murder attempted murder conspiracy to commit murder there no particular predicate act ever proved it no evidence of any murders throughout this period of time and by the time of mr meyer was was involved in the truck the drug transactions in two thousand and ten he was again the way from being regional anka had moved out of the neighborhood and had really only a peripheral involvement with the gang if there's no other questions are asked on the brief thank you very much thank you very much for this one this one this one so we appreciate your willingness to take