thirteen thirty two seventy four united states of america versus benny overton oral argument not so we'd see fifteen minutes or side mr that or the defendant about good morning your honors may please the court i'm here this morning representing bennie overton who is the defendant the court below that like to reserve three of my minutes for a bottle if i may thank you running morning there are two issues which i'd like to address to the court's attention today not leave the rest to the briefs unless thirty specific questions about those the two issues which i'd like to address are number one that the district court should have allowed the defense to present a picture of the b b gun in this case and then second i would like to discuss the district court's denial of the motion to suppress the evidence that was found on may fourth in this case so let's just talk about the b b gun all right there was a stipulation the jury knew that he had a b b gun that had been found in the house absolutely  frankly i wouldn't know looking a b b gun from any other kind of gun but that's just you know my lack of education in this area what what was it that you didn't try this case did you know what was it that that council thought the jury would possibly gain from seeing a picture of the guy not the gun itself just the picture and actually in actually this is one you know the picture is a thousand words this this is one of those cases the the the victim in this case mr gore did not have a really good clear description of the gun but he said that it was dark he said that it was didn't it wasn't a revolver and he said that it had a long a long barrel to it and that was the description that he gave during the trial testimony how long the barrel did he say did he just set a long barrel i mean that could be a long barrel this could be a long barrel absolutely absent if thing was being held against his temple it was ok it was but in in so the only issue in this entire case at trial was is it a b b gun or was it a f that was the only issue that was presented in this case that was the critical issue for the jury to decide what did the jury do during jury deliberations the jury actually got back to the court and ask to see the firearm that was presented and that was the firearm that was that what they found on may fourth so now let's back up just a minute i've already confessed to you that i don't have much knowledge of guns but you know if somebody  says i want you to do this that or the other whether i know it's a b b gun or not it could it could do some damage if it fired if it's fired it could do damage what makes that any less of a good at it but what difference does it make if if it was a toy gun if the victim i think it is a gun because the statute in especially the one twenty four c statute requires and a thousand words yes i guess i'm not totally following that i mean let's accept that it's all whether it's a b b gun or not but what's more you get out of the fact that everyone agreed with a b b gun was found in the so i just i'm really struggling with how the arguments are different and i bent over to counsel i mean i would have made the same i just would have pushed at the same way and i mean i and i know the difference between waving a picture or waving a stipulation the point is there was one in the apartment that's what generates the possibility for confusion and then you're off to the beyond a reasonable doubt argument i think that the if you could take a look at the at the firearm that was introduced into evidence and you take a look at the picture of the b b gun that was attempted to be introduced into evidence and put them side by side each other what you would see was their proffer if that picture in the record that picture was was placed into the record that is correct if it in the  record it is not in the record i would be happy to make it part of a joint appendix or provide it to the cork i have with me today so that you can see that i actually have a picture of both the firearm in the b b gun with me today see a color picture of each so you can see the similarities but it but it and both of those were exhibits at trial one was interested in one when the un introduced in the other was a proffer the other one the the actual firearm was introduced the one that was so i only have a picture of the firearm i don't have the actual firearm the picture of the b b gun was was introduced it is to protect the record but it was never obviously introduced into before the jury with respect to the gun that was found at the home yes was the victim able to identify that weapon if the death resembling the one that was held with had well that the firearm that was introduced actually wasn't found at the home that was found at the gas station underneath him and  the the victim was never did never identify that as the weapon that was used that if that is granted to him at all for identification it at the trial it was never presented to him there was a pretrial motion i guess there was an issue at one of the preliminary hearings as to whether or not he could identify that as the weapon that was used and so there was actually a pretrial motion to and in limon a motion to exclude his identification because he couldn't identify it as the weapon and the government conceded that they wouldn't ask him to do it and they in fact didn't at the trial they did not ask him to identify that as the weapon that was used now the government can tell that part of the reason the judge was right to exclude this photo of the b b gun it's because the defendant only thought introduced the photo to corroborate you know his testimony and that in and i went mad i have a i've this is my very big sticking point with this entire issue because it was the government that opened the door to the sevens there is no question that it was the government to open the door to this evidence and so on so you have that in in we have the case law that says that when a party opens the door to inadmissible evidence the other party has every right to be able to bring in evidence to to show it to to clear up any any problems that come with it was a result of that the government open the door the government open the door by alleging that there wasn't any b b gun they during their cross examination so on page seven forty of the transcript in this it's page id seven forty they actually infer to the jury they actually make the statement well where is this gun you know they actually go through a cross examination him say you say it was a b b gun that mr said was that before the stipulation or was it was before the stipulation and the reason they had to make the stipulation was because they did enter they had entered house that they found is that correct that is true and do they know that he's going to have that his attorney at least is going to show up in court and say it wasn't it wasn't the gun you found in the car when you found me it was a baby and there whoa the government says you're going to try to take the position that this was only a b b gun is that what happened i think that the i think that the government was unaware that that was the defense yes ye so that's why the stipulation came a lot of people laying where every bit of well in you know in this case everything was conceded but for that fact he admitted that he was there he admitted that he went into the car he admitted that he ultimately took the car he apologized to gun does he say it was that was in the car but maybe the oh he says he used to be begun that night to the weapon in the car in the car for five days later i believe it was a friend of his that he was holding it for oh yeah and  there were other firearms as well but but here's another problem about the fact that if you let the b b gun and the government's entitle to introduce the other stuff found in the apartment in my car my answer to that is under what legal theory stating under what legal theory would that allowed to be introduced simply wait wait wait am i right in remembering there were other guns in the apartment absolutely but that doesn't mean that they're automatically admissible it ok so if there are other guns in the house the victim fifth he held a gun to my head and took my car  k so if i'm it just as likely in the mind of a jury that one of the other many guns found in the house with the gun held its head as it is at the b b gun no your honor because actually and i think the government can see this the other guns that were found in the apartment  did not follow in line with what he said that the gun was they were like either rifles or or different things like that they would not have been related to the carjacking that evening and the b b gun less was less similar to a rifle than two absolutely and  on and if if you see the pictures it was so similar to the picture of the firearm that a jury in the jury in this case did have some doubt they actually had some reasonable doubt as to this issue because they in fact the only issue is is it a firearm gun they asked to see that firearm the only thing that was introduced in the case they asked to see it during their deliberations so they were at least contemplating this issue the the blackwell case says that when you when you're talking about present a defense the issue is whether or not the omitted evidence would have created reasonable doubt you take a look at these two pictures side by side you have no question but that there is some reasonable doubt once you take a look at those in the jury actually struggled with that i have a minute nine seconds left and i promised my client i would basis to detain us make sure i'm understanding your response before us letting in the other guns so you started by saying understand why the government got to do that and i guess my reaction is well wait a second if the point is i had this b b gun that's the gun that was used i to tell them i had this in the apartment that's confirms that that's possible it sure seems like pretty fair game that you can let the other stuff in so that's my answer respond this response to your what theory and then you seem to shift with who cares because none of government the court is the one that made the threat that hey if you allow in this b b gun they can bring in the rest of it i'm shutting the door now but if you reopen it by putting in this picture the b b gun all the other weapons that they found in the apartment come in i'm just i would  not but it sounds reasonable but if you think about it what is the legal or evidentiary basis to allow in those other firearms the government's going to carry over to his using is hey i said it was a b b gun and here's the proof i had a b b gun in my apartment you're allowed to respond by saying you had fifty five guns in your apartment you're just taking the most innocent gun and saying that was the one used it seems to me incredibly obvious where it's your get to do that if just like picking out one sentence of a statement and trying to keep the government from introducing the entire statement it could be put let's say he had a toy gun it was paper it was just ridiculous it was something that you know a five year old would and he wants to introduce that and then he has ten real guns and the government says well if you put that in we get to tell the jury you also attend real guns as opposed to leaving the impression that all you carry around is paper guns well surely you could correct that mis we have to put it through the prism of were any of the other firearms that were found in the apartment possibly the firearm that was used at the carjacking because that's the only issue this is what i thought the real point was right it's so i that's i'm trying to tell you i don't works so the second argument is ok fine in the abstract you can try to correct that misimpression but the only thing that would be relevant would be a gun that's like the gun described by the victim that would be your point that's correct it's not that it looks like a b gun it's that it's like the gun and neck and use you say we'll hear from the government but you say the other gun seized don't possibly come within the realm of being like the guy the victim described that is correct that is correct in in so the only period of time before they saw the butt of the firearm in this case during that time the evidence from the from the e m t is was that he asked to leave that he had communication with third parties the other people that were  in the area in that he he actually took out a cigarette and lit it and smoked it he should have been allowed to leave but his body was detained for a period of time prior to the sign time they saw the firearm that is a fourth amendment violation and require suppression of the evidence and the evidence was that it was some there was at least between the time he had calmed down i think this was it was murphy's testimony from the time he had calmed down to the time they saw the butt of the firearm there was at least a twenty to thirty second interval in that in that matter what now say that again among the time the come down to the time he calmed down and was asked if they sed detest money was that it was a least a twenty to second thirty thirty second interval i would submit that it had to have been at least that amount because they also testified that he had a conversation with third parties during the time he lit and smoke it was smoking a cigarette and they asked to leave but the point is  you don't have any problem with the mass being notified that there was something wrong with what was found in the e m t is coming to this thing and you know truth is once they're on the same they are going to just let you go or or leave until they know what's going on it's a liability situation that's where i have the problem i don't have a problem with them being called i don't have problem with them coming on the scene but once once he was revived once he was lucid once he asked to leave they i don't think that there's anything in the record that supports the theory that they were allowed to keep him there while they conducted further investigation but it don't they have an obligation as stated out he said to make certain that medically believe and you're saying that he a talk a third party he smoked a cigarette i'm not sure on the their protocol and they have to what's their call they have to be able to observe their protocol in terms of you know examining and checking the press that because if ok i and the they indicated that when he was talking with third parties that he was actually lucid they actually said it was conversation that they could understand so they the question the question becomes is there anything in the record that supports that they had a requirement to keep him there until they found x y or z and we don't even know what that is in the record the x y z what they were going to find but that overbearing his his right to leave when he requests to do so but if that testimony in ther twenty thirty seconds at least at least that's the testimony is there something in the record that indicates that the weapon came to their attention that's what we're talking about is the weapon yes one at came to their their attention just sort of incidentally they were going through the car looking for evidence that's true so so the the only question is at the time they saw the butt of the weapon did they have a right to continued to seize at that point and i would say i cited the bunny a case to the court in my reply brief that says you know it doesn't the twenty thirty seconds ten seconds five minutes there is no de minimus exception to the fourth amendment and i know my time is very much up but you know while you're doing a great job the answer my question so thanks a lot as please the court then glassman on behalf of the united states i'd like to talk through a little bit how exactly this issue of the picture a rose at trial i think that that will help answer the constitutional issue about whether this particular evidence meaning the picture of the b b gun was so central to the defense that there is no reason that it couldn't be excluded or that the other guns would have to come in and will also help i think clarify my friend's argument about opening the door because i i think the way his argument proceeds it's actually backwards what happened is that there was a motion to suppress the  results of the search of the apartment the government said we're not going to use that evidence and so the trial proceeded with neither party making reference to what was found at the apartment the defendant gets up to testify in his own defense after the government has rested the defendant then testifies and during his direct examination says that he had a b b gun in his pants and that's what he was using to scare the victim he does not say is not asked anything about whether he had a b b gun at his house or whether the year was a search of his house  gun was found or anything like that and for very good reason because if he had been asked that that would then open the door for the government to come back and say actually it's not like you just had a b gun at your house you got a ton of guns at your house so you can't try to mislead the jury into thinking that you only have a b b gun so obviously that's what you were carrying so he didn't try that then the government or her attorney gets up to cross examine him somewhere at the end of the government attorneys cross examination i says so where is this began obviously not recalling that in fact a b b gun was among the guns that was c was among the things that was seized a is right and this is i mean you can read what the district court i think in the sidebar at seven fifty four to seven fifty five does a pretty good job of taking note for the court for this court because i don't obviously we can see from the transcript what the reaction on everybody's face was at that time but the so the government asked so where is this b b gun and the defendant answers you've got it you came and search my house and that police officer that testified he's got it he took it it was at that point that the government requested a sidebar during its cross examination of the defendant at before it was done cross examine defendant and the government then comes over and says  court you know we we weren't going to use any of that evidence but now he's testifying that it was taken during the search so can we get out of our agreement not to use that other evidence and the defense counsel says quite properly no you can't get out of it because you stepped in that i didn't ask the question you did and the court says that's right and i think that that's fine we're going to let that stand but you can't argue in closing that that was the only thing that was seized because then you'll be misleading and what not in the courts and so i've closed the store it was at that point that defense counsel then says well wait a minute i want to actually show a picture because because if i don't introduce the evidence the jury will infer that my client was lying not that to corroborate his his testimony his response and that's why i say the court gave some good comments to give this court a flavor of what actually happened the court says anybody that saw mr springer's reaction knows the jury believes they found a gun anybody that was watching mr springer's conversation myster m watched the transaction and realizes they found a b b gun in the house but if you start asking questions about what was at the house then it's fair for them to ask is that all they found so if the defense then wanted to and that's at seven fifty four and it goes on to seven fifty five where again defense counsel emphasizes that the reason that he wants now to show this picture is not in support of the defense that the defendant actually was using a b b gun when he committed it but rather just to show that he was not lying in response to the government's question when even though even though the record says that you know the faces and the expressions it was obvious that was found there that's not record evidence isn't well actually i think is that record evidence would that's not evidence but that is why when we're talking about things like opening the door and that's those are calls that are within the district court's discretion for w but i guess my point is twofold first is that the defense counsel makes quite clear that he's not and the way that this transpired makes quite clear that there was no effort no interest no attempt to introduce a picture of the b b gun or ask questions about the b b gun recovery from the apartment during the direct examination of the defendant so it's monday but i mean that's logical though because you have this agreement that you're going to do that and then the government where is this b b gun that's right that's right so then based on that the press wants to introduce a picture maybe get a stipulation that some gun was found or something like that because they got the stipulated get the stipulation and that was the fallback to pledge to make sure i understand something is the point of what you're saying that this idea of putting pictures next to each other to show the b b gun was the gun allegedly used against the victim was a theory that was not put in front of the district court correct not at all no there is i mean v the defense counsel was explicit that the purpose of doing this was so that the jury wouldn't get the impression that the defendant was lying when he said that they recovered the b b gun from his apartment that's what counsel said now as to that point as judge doctor mentioned during my colleague's argument judge john just mentioned the district or did give  their parties agreed there was a stipulation given in fact a black b b gun was found at the apartment though that was supposed to take care of the problem about establishing that his client wasn't that the senate wasn't lying about the fact that it had been found in his apart exactly yeah and yet it just reports as to my mind that takes care of that problem well if that took care of the problem i guess the only question i would have is what harm was there then and just showing the jury the picture why why resist that why not just show in the picture and move on yeah i we don't know we don't know ok we don't know i mean i think the suggestion the way that this as i read the transcript of the sidebar and then be out of the presence of the jury in court after the lunch recess was that there was some concern that the the way this was going to go out w to suggest that all that was found was a b b gun you know so that's why one prosecutor says that sidebar i think it's improper characterization that he only carries b b guns i think that was the concern that the district court was trying to make sure that the door was not then open further in terms of meeting for the government to rebut that by showing all the other grounds well let me just clarify one other yes thing so leading up to what's here in the record in seven fifty four fifty five wasn't the defendant's testimony and i have not read the transcript can he wasn't the defendant testimony that what he had used on the night of the carjacking was not the gun that was found in the stolen car the night he was detained arrested whatever but was in fact just a b b gun yes ok that was the defense testimony although i will say judge daughtry that it wasn't the defense testimony was not that i had a b b gun i took it out and i stuck it to his temple and i stuck it in a side the defendant's testimony was i had a b b gun in my pants i raised my shirt and showed it to him and that was it i didn't take it out and in fact that then comes up in closing arguments because again with respect to the centrale any of that particular piece of evidence versus his testimony that he had the b b gun the defense didn't argue that he testified he used to b b gun you've heard that there were he has a b b gun that was what he did the government argued if you listen to his testimony he said that he never he didn't take out the b b gun and stick it on his temple so how on earth would the victim have seen the barrel if it was stuck in his pants ok you know the problem may be that the both of you are extremely we have to be careful that line of argument sometimes lawyers say i wish we had another  panel so ok so i don't think that it was central which is the constitutional test was so central that picture not just any other evidence given his testimony given the stipulation he have to say about the fourth amendment argument sure so i agree with much of the framework by which he comes out the issue really the only question i guess is when the firefighters drove up and they were finally able to revive the defendant did the constitution require them to leave and let him apparently drive off the second he said oh no i'm ok you know there's no authority that supports that and on the contrary there are plenty of cases that say that when firefighters or  police officers or whoever encounter a dangerous situation they can stay there to make sure that there's not a danger in this case if the testimony was that they drove up i mean i believe the way that the defense counsel characterize the defendant in closing argument was that he was ridiculously passed out at the wheel of a car and had been well they were few hour i'm quite sure they were going to let him drive off in that car without knowing that he was not a danger they actually testified that  there was testimony that they had less you know whether he was completely drunk completely on drugs and they had to figure that out in in the twenty or thirty seconds between the time that he apparently says i'm fine and they saw the know i i don't believe there's anything bad establishes that as a matter of law they knew that he was not dangerous not and he was fine for him to drive off i do think that judge donald's totally right that would be a dereliction of duty to let him drive off and drive right into somebody if he was totally drunk as as in fact he was i mean there was an empty bottle of vodka in the car so so i think that the law simply does not support the proposition that as soon as a passed out drunk person is revived the police officers or firefighters have a constitutional obligation to let him drive off with the brief time i have left i did want to make two quick points that were not brought up in my colleague's argument that were in response to a couple of things in his reply brief realizing that i'm opening the door they all i know there are but up but i'm going to keep them very brief i just wanted to point out with respect to the very last point the align point my colleague's reply brief i think proves our point on at least as to the plane air part because he says that the jury certainly could have understood could have believed that the defendant was simply showing the b b gun although disbelieve that was a b b gun and thought it was an actual gun well if you show it that is brandishing so i i think that that falls within the definition of brandishing so i think that the fact of brandishing was undisputed by anybody at the trial so that's why i think that certainly under cotton at least the fourth from the plane air would not require a reversal of the imposition of the mandatory minimum here and then with respect to the argument about four hundred four b evidence there's an assertion on page four of the reply brief that anytime you're talking about evidence that would itself constitute some other crime that is necessarily or by definition for for b and i think that that's incorrect i think that there are plenty of cases out there that say that when you're offering evidence that's intrinsic to the crime charge that is not for for evidence regardless whether it is itself some other criminal conduct page seven sixty two of page id seven sixty two the defense counsel is clear that he's only entering into this stipulation because he feels he's forced to because of the district court's decision that if you if you introduce this picture of the b b gun i'm going to allow in all those other guns that were found at the apartment so it was a stipulation but it was a stipulation that was the lesser of many evils challenging the validity of the stipulation no but i'm just explaining why it why there was a stipulation in the first place you but but you just tell us that that he wanted that you were to know that a b b gun was found because the government sat where is the b b gun and so this stipulation seems to ask the question what we really want wanted was that we wanted the b b gun they want that we wanted them to see the b b gun because it looks like what mr gore testified to well you're going to have to say that mr glass and was not accurately characterizing the record when it comes to overtones council below which was that this was about whether he lied well he he made that argument that's that's accurate he made that argument about whether or not he was lying about it but again they did that argument and is overlooking the fact that the government open the door in this court has a lot of precedent on what opening the door means and i cited that to you for instance like i you can keep going down this road if you want but it's not answering my point if the only argument below was we needed information in there to prove he wasn't lying he got that that was solved and you know if you want to make a you know a different argument it strikes me as becoming a plain air argument because if it wasn't present this to court it's not right to reserve first the district court unless plane air shown we don't know that the defense counsel wouldn't have attempted to present a picture of that of that b b gun during redirect it in any event  we don't know that depending on how cross examination went but is that the only thing the only thing we do know is that during cross examination they clearly open the door to allowing a picture that b b gun and they take in so what we're having here is the government open the door to something that they had already agreed to say you're right they open the door to letting the picture in to make it really clear that he didn't lie yes that's the point about not lying not to prove the match theory i disagree because that is the only issue in the entire case was was it a b b gun or a firearm that was the only issue before the jury that that was the only thing that they need to decide was it was it was it a b b gun or was it a fire in so a picture again if you take a look at the picture of the two items a jury taking a look at a picture of the b b gun which they now admit that he hacked me let me ask the question this way what's your take let's just assume the only thing you were arguing today was the picture was really important to prove he didn't lie when he said he had a b b gun and what would your theory be today given that they're all to me was a stipulation the jury was told it was a black b b gun  what would you say about that if if that was the if that was my only argument that it was to prove that he wasn't lying obviously the stipulation would blunt that significantly right there would really have to admit that it really would be an argument that is correct but it's but it's also actually why you're arguing this theory that wasn't argued below which is a great theory i really admire you for it if i can't agree that wasn't argued below because it was the entire defense it was if in relation to why we want the picture and it wasn't you have to connect up evidentiary rulings to the theory in might the theory that you are connecting this evidence you're willing to was credibility not this other theory of the defense right well but be but the the her theory of the defense was that was that it was a b b gun so that ran throughout throughout the entire process applied i guess you would say yes ok thank you all right we'll listen it's a