today is thirteen one six three three united states versus jose rodriguez number thirteen one six five seven united states versus coconspirator as an aider and abettor knowledge is extremely important because the man strain is higher than it is for a vicarious liability standard it is so high that it is practical certainty practical certainty are actual knowledge and now from the united states supreme court and the rosemont justice kagan has told us that that knowledge has got to be at vannes knowledge advance knowledge meaning prior to commencing the criminal activity and this is stated in that opinion it is to give the opportunity for that individual to withdraw from that criminal enterprise that criminal endeavo he had knowledge that the codefendant have the gun is that what you mean by advance knowledge yes your honor because the crime charged aside from the drug activity that is not in question and that they're in close proximity they're in the vehicle together codefendant has a very large gun under his shirt which may have been visible typically it's often it was a circumstantial case like this but in order to even prove a circumstantial case your honor there has to be some evidence presented to the jury not speculation that he may have seen the button but evidence that he saw it or somehow knew that it was there and there's nothing in this case news that was presented why would that be enough let's assume that they knew that knew the gun was there i had thought that that would show knowledge of the gun but it wouldn't necessarily furtherance of language is not a lasting term so this squad has instructed we need to look at subjective facts and we need to look at objective facts in this instance in this case i you have to look at that nexus in this case through the objective standards that the government may present to you that were presented at trial here there are no one servatius that there was a drug transaction there is no evidence that that drug about scary when mr santini mendis purchased his drugs there is no evidence that the gun is going to be carried or would have been carried in some future crime when mr would sell his drugs there is no evidence for the other seven situation i mean the charge is possession with intent to distribute as they are driving in that vehicle with drugs on their person with small baggies with with with cash which is often present when folks are engaged in drug trafficking i mean the notion is that the gun and this is often the case may be used protectively drug trafficking is a dangerous business we have said in many of our cases that it's commonplace for those who are engaged in drug trafficking in this case possession with the standard is much higher as to the knowledge element and as to the intent that's going to happen with with that gun you need to know that there was a firearm there's no evidence presented that there was you need to know that that firearm firearm has some nexus you were going to use it with drug activity there is no evidence of that and all of the cases where this court has found such a nexus is based it is based on the objective there is a drug test transaction there's wiretaps there's meat there buy set up where you know police come in and other cases where are you such as a pawn so we know from the record why they were in the car together do you know where they were going  windows was too dark that is the subject of the stop that's why this car is stopped not because they made any observations or anybody called and said hey there's drug dealers in this car there  evidence other than a traffic stop well one individual admits to police that he has bought these drugs which by the way are sham drugs and they total ten point two grams of sham cocaine and on his person he had one thousand and twenty nine dollars this is not hard to pickle case where we have thousands of dollars worth of drugs where we have various vehicles were there's bodies being done and they're being served and people reasonable juror could reach these conclusions that yes he knew there was a weapon and yes he was using that weapon to further his criminal activity and i suggest to this court that the evidence in this case is totally lacking to form the knowledge to form the nexus between the drugs and the gun it's simply not there especially when you compare it to other cases where you drugs in his possession some cut for drugs commonly the people will take and mix it with with cocaine to stretch it but certainly cut it's not worth anything that's why they mix it with the cocaine because cocaine quite valuable the drugs in the cut makes it spread out to more users and give them more doses to sell in the street so essentially the cut is a it's not worth anything it's certainly not worth carrying a gun around to protect they could always stop at the next store i think they rodriguez martinez had with regard to the drugs secreted in his his buddies pocket and it's pure speculation with the nexus between the drugs and the guns work who knows but certainly mr did not know that his city had destroyed so many things that the parent on the record maybe they were going to trade the guns because for some cocaine exit up and do it with him there's nothing that we can put together as a crime before th if they each had knowledge of the others being there the question of god and with drugs the question of advance knowledge wouldn't seem to be particularly well that you could just couldn't you in for from the presence o you have to have a big bones is that somebody is pregnant we're going to carry around o'clock o'clock is a fairly compact police weapon and you see it on most of the courthouse officers and it's something that could be slipped into into your belt thing and not seen i mean i the the first way you in which your client reacted to soon as they were stopped there the government described what's on the record this is odd behavior of immediately absent himself in the vehicle dazed people using not using their telephone is somewhat odd if you look at people in the coffee shop everybody seems to be on their telephones and somebody's looking around and looking for somebody else of pretty god so i mean i don't think that about the magazine of the of the magazine that comes with the gun has a has  just to understand your argument even if your client had knowledge of the gun and was aware of it obviously my class and i'm sorry if your client had knowledge that if the other some evidence that the gun is actually be used in some way that it's that it's perhaps brandish which was actually can be a distinct element in these these in these cases right that seems to be if somebody is found simply with a gun on their person even though a drug transaction is taking place in your view that's not enough just mere having her on you actually just two possible meanings of that one would be you actually have to display the gun in some direct way or the other would be that you have to have the gun with you for the purpose of assisting in the traffic maybe because you think you will use it if it's needed to be a defense or something those are two very different ideas which of them is the this or is it both or either one of the faces i think either one would suffice through from the record things that may have happened in the past because the brother in law is this is rank speculation but if you read the case and if you look at the activities anyone counsel says was there any other reason why you stopped this car no that's clearly on the record and it was it was just a stop on for the window violation and these other things came out and the drugs were found here the gun was found there but there's no way to tie my client together with drugs on his person sounds to me like you would your argument would still be the same zach correct there would be no way to connect your client to the codefendant in terms of his knowledge of the  developed in the record sitting in this vehicle or the driver and or controller of this vehicle where the passenger was carrying this gun the gun it says i'm not suppose he was at his home sitting it is  it's more can't i think in this situation where the boat captain is in the in the boat and they have drugs and they have guns and they're all secret in secret compartments and the court has held the number nine twenty four see the mere presence of the gun in that boat which is a vehicle is in furtherance of the drug trafficking quite because of the nature of the gun we understand that that those and this was how it was presented to the jury a trial back to my hypothetical but in the in the house the same thing we have gun on him same size gun under his belt at that moment is there sufficient evidence to say that the gun is in furtherance of the traffic or what we would argue maybe not in the moment that he comes in but let's say that he comes in and i see what was presented to the jury and the evidence this correct that is circumstantial but it's patently clear that this is a weapon that was the size of a weapon that it that the knowledge by mr something of the presence of the weapon in the car was evident not only request of the police officer both so they both in getting in the same behavior of trying to separate themselves from the vehicle and from each other so that's why the totality of the circumstances in this case is this is a case of just right there was a traffic stop this was there's no prior intelligence of the fact that these individuals were involved in drug trafficking is a traffic stop way or the agents responded to the facts as they have in front of them and that was what was presented to the jury for the jury to make a reasonable analysis as to whether or not their behavior and conduct of these individuals pointed to the fact that they were acting in concerted action in this case in particular we argue us to mr something the man this one that he admitted that he was engaged in drug  that there's a power point that was presented to the jury that is in the record is it is a weapon with an extended magazine it's not the normal magazine that coms with the weapon it's a larger magazine it's a very well that magazine that had twenty four b really is a more cumbersome item to carry it is not an easily concealable weapon so it sticks out below the bottom of the handle gets the digs out beyond the handle that's correct i'm so it's and it's evidence that he would have known rodriguez had the gun money through the car is there sufficient inference that we can draw from the fact that once in the car it might have been possible to see well he's sitting there the gun extended we w one that well he get into the car but the other thing is that from the evidence presented they made that missions or indicated that they had been at the hardware store and that they had gone together to the hardware store and were coming out of the hardware store there were no bags recovered from the hardware store so that that that was present as evidence to the fact that they were being less than truthful it goes together with the fact that it was presented to the jury that when mr lucas made us get out a vehicle he sort of wa goodbye and pretended he was take advantage of the traffic stop to leave but also it was presented to the jury in the photos and exhibits three four and eight was that this traffic stop was sixty feet from the parking lot where they were so it wouldn't make any sense for any individual that's leaving the hardware store where we went to buy some items and then coming back and as soon as there's a traffic stop i get out and pretend to me and get out so it is the  circumstances they came out that create this fish and information or circumstantial evidence for the for reasonable fact finder to to develop the know that they had knowledge of each other's activities  did the government present the case in terms of where the glock likely was well rodriguez was still in the car tucked into his trousers or did you get into that we didn't get into  the fact this to where it was while in while in the vehicle because we did not have any direct evidence so how did you make the constructive possession argument if you didn't know were was vehicle what they construct a position argument we made it based on showing it to the jury and in nature and the fact that when he stepped out of the vehicle he did have it secret in his in his purse so the theory was that then that it was was tucked into his trousers while he was in the car or that it would have been in his person and because of the close proximity this is a in his what the argument was that it would have been very difficult for him to actually have a concealed while he was sitting because of the nature of the gun so that really he wouldn't advise it on him because it would stick up or or just that you wouldn't expect someone to to have a tugboat and we wouldn't do that you wouldn't because of the nature of the case so it's not science what did the defense say about whether it might have been in the back seat i don't think that it was argued to that effect that after my review of the records under the  with respect to constructive perception you have to show dominion and control on the part of the driver santini in the cars under the if the gun is under the front seat and he doesn't know about it then it makes it a tougher case that that is correct but in this case the way that it was  position also the close proximity because no matter where he would have been it would have been within his reach and role in this you know in the front area of this on the or where they're both writing and evidently just arguable that he had on his person the whole time the whole time and the other thing is that it's just that they would have had to know that it was there the presentation to the jury was the conduct of both defendants at the same drugs and the gun is that the two passengers each of which was in possession of all legal everybody's getting arrested and they're going to find my gun so that that consciousness that forethought of the fact that there intervening with him and he only has cast a thousand dollars in cash and drugs which is what you know he's using for his drug trafficking but if he gets arrested then the whole car gets searched and everybody gets search and my gun gets found so that's why they're both attempting to physically remove themselves from each other so that they can remove one item away from the other and it is gets in the out of the car and pretends to leave and go stand by the corner the jury had an opportunity to see the photos of the location this is a rural location there would be no reason for mr they're just writing us to get out of the car and step in that area the photo itself shows that it shorts and he said that he was limping and trying to conceal with the gun in his in his person so that there was a weird gait that sort of project it was through the pat down yet that's the only time that it was seen physically seen well that's not helpful to the government's position the gun was to the current to mr seventeen if the officers them selves mean it was argued mr sort of the government in this would have been sitting in the car would not have had to see an opportunity to use the large t shirt around him to conceal it so that that was presented to the jury like i said there were photos shown of what they were wearing that day om to the jury case so since he gave a statement where he said where he bought what he thought was cocaine that's correct does he say anything about when he picked up his brother in law how long how long between the time that he purchased the drugs and weapon you know into a hardware store why would you be carrying that in a hardware store run that it would have been unusual and that the nature of the con itself is what leads to the fact that it was there  the drug trafficking crime as as stated in their atlanta show in the record mr anthony had the drugs he had what he thought was cocaine at least ten grams he had ten glassine bags that would match the ability to make that into substances for distribution which he indicated he wanted to distribute and then mr rodriguez martinez had this weapon which was a glock with an extended magazine twenty four bullet fully loaded when it was recovered it was loaded it was it wasn't being transported like it separately was been transported ready to fire so that those facts and the conduct of these individuals at the moment of the traffic stop takes place is what leads to the fact that they were axing acting in concert at astro it's conceivable right there that they actually did go into the hardware store he wasn't carrying the glock when he was in the hardware store he actually put it under the front seat of the car santini never saw put it under the front seat of the car when the traffic stop occurred rodriguez sista santini i've got a gun it's under the front seat of the car even though you didn't know that since he says get the gun and get out of here that's all conceivable right but that's for a jury to decide we understand that that would be for the jury to decide whether they they believe that that he would not have known ahead of time due to their behavior  caring that it has to do with the concept of constructive possession and it was added as a way to to put in the eighty eighty at a better liability and as we are given our brief you know we understand that it tracks the language of the instructions  the more the instructions with the intent of creating that it really is too i think to convey to the jury the concept that you don't have to process it was it was aiding and abetting somebody else having it you know just not intended to be a third party but with the knowledge of the journey you could have to make a determination as to having some evidence as to who that someone someone else would be and in this case there's only evidence as to these two individuals i'm being so we do not believe that the language itself would create any confusion in the treasury or not allow it to reach a reasonable determination in the case and