find that the evidence as to counts two with him three this is legally insufficient count one is still a good charge is to me ask you about that once your client says yes the drugs that i was digital scale and the gun found together not with him i realize in another room no one else in the apartment other in disha of his residence there that once he admits yes i these drugs were for distribution then the paraphernalia that goes with distribution also belongs to him he has never admitted that the drugs were they are for distribution well he hasn't challenge conviction agrees with me that the evidence is technically sufficient to sustain that can't because the drugs were so near at hand but he did not admit in the trial court if we do not admit here that he mr elliott had difficulty getting along with his trial counsel i've had no problems with him but he had to trial counsel that he did not get along with and he made the decision to represent himself and so this had certain ramifications as to the way the trial was conducted he had a great deal of difficulty formulating questions cross examining the government's witnesses and of course he did not make a rule twenty nine motion for judgment of acquittal therefore the case has to be judged against a plain error standard as opposed to one of the more forgiving standards when the police came to this apartment in southeast washington there was a group of police officers and they entered the apartment all at once and they failed mr elliot in the apartment it just true as your honor as pointed out there was no one else in the apartment but all of the well a great deal of the evidence was failed and even what the police officers refer to as back bedroom where mr elliott was seated  bed and around him within arm's reach was a small plate with crack cocaine on it a much more dryer bag on the bed with additional cocaine in it and three other items one was his work id from the maryland national capital parks association it was a kind of a laminated card chain that were around her neck i think you can see in our appendix we have pictures that the that the police had taken out of the various items of evidence there was also an envelope right near at hand that said bobby on it and nothing else that of course is his first name and there was another envelope prepared as if it was going in the mail addressed to our b c ministries and w was it a return address label was it handwritten or do you know oh i'm there weren't any photos of it that i saw it but i did go to the police evidence room and personally look at it it's a well it depends upon the bush told to the evidence that is presented certainly if we had proof that mr elliott was the lease holder that he had paid the rent that he had even been seen around the apartment that he had even been seen with a gun in the neighborhood you know that coupled with the fact that it's in another room would probably be sufficient beyond beyond a reasonable doubt  that the evidence supports a jury finding that he was a resident of a apartment yes yes your honor there is no evidence that he was a resident of the apartment aside from the fact that he was physically present in the apartment when the gun was for example or even elsewhere in the apartment it would be it would be a much more significant piece of evidence would be might be more significant but surely significant as it is it is your honor and if the question were whatever he intended for that envelope to come back to that apartment in the event that it couldn't be that it couldn't be delivered yes there was proof beyond a reasonable doubt that he intended for the  to come back to that apartment but it's not proof beyond a reasonable doubt that he resigned in the apartment or that he was that he had anything except a warm relationship with whoever did it and people use other people's return address from time to time particularly when they are when they are don't have a place where they are sleeping well there's no rule there is no basis on which should jerry could find other  than then anybody else live there or that raises really a doubt about it i mean there is that evidence that raises any doubt that that's where you well it was the birth the burden was on the government to improve corsair he had dominion and in the apartment were consistent with him living there and then the question is where you are going to doubt where is the down no your honor with with all respect the things that were found in the apartment were not consistent with he is living there were there there was there were many many things in the apartment but they found nothing with his name on it any place else they did not show that any of the clothes that were in that second bedroom were his sully's were fit him they did not show he had the keys for the apartment or that the keys whatever he had on him actually fit the front door for the apartment they showed it virtually no connection between mr elliott and that apartment aside from these two pieces of evidence he's physically present in the one bedroom with a gun found in the other  soon we don't have any evidence of his driver's license what we do have is evidence that was actually presented by the government showing that this thirteen year old g p had parked it in the parking lot building there is testimony that there were several small apartment buildings together it makes sense that it would be in the same building but you can be in the same building as someone else and not be responsible for what julie for the united states this court should not disturb the jury's verdict in this case because there was ample evidence that appellant constructively possessed the gun really for four main reasons first as the as the court discussed with opponents counsel there was ample evidence that appellant lived in this apartment he was the only person in the residence which that fact alone distinguishes this case from virtually all of appellant cited cases there that are insufficient evidence of constructive possession second as we as as the court discussed with opponents counsel there was mail matter found in the apartment with appellant to name the precise address to include apartment nine fifty six as the return address now of course it's reasonable for the jury to infer that himself wrote that return address on the envelope that's where return addresses come from so his name about the actual ring was said bobby lee elliot apartment nine fifty six fifty three nineteen east street southeast  you know third so there's there's ample evidence that he lived in this apartment there's and there was no mail matter found in the apartment from from anyone else but there was no this second bedroom didn't even have a bed in it so there was no the evidence was devoid of anyone else living in the apartment but the government's case doesn't even rise or fall on whether he lived there by himself because he was also winks particularly he was linked jury that digital scales are something that crack that cocaine dealer to use to weigh zero grams to weigh out the larger amounts of the core of the crack cocaine so there's a digital scale in the same closet that the gun is and we know from this court's decisions in a number of cases including johnson mcalinden booker and wall that there is this nexus between guns and drugs that guns and drugs essentially go together  believe it was mcalinden said no drugs or guns or just as much drug paraphernalia as more commonly seen paraphernalia like small bit blocks and things of that nature that's very broad and very general as a theory i mean essentially if you were operating with others out of the same premises and you happen to be the one found there are you know independently but but you know you're your cousin also is doing out of you know held his apartment and you're the one who happens to be arrested there then just because guns and drugs go together and any drug paraphernalia it's all attributed to you it seems like that bit of a stretch when the standard is beyond reasonable doubt well you are in the i mean i take a question i mean there's certainly a question a possibility that for example someone else had could have had access to the apartment but at this stage that's not the standard of review the standard review is whether whether the record is devoid of evidence of guilt and it simply wasn't in this case because number one because of the reasons that we talked about that it was it was apparent that he was living there but this nexus of the guns and drugs  if you look at where it's important to kind of look at where this gun was position and it was in it was essentially just right around the corner into the second bedroom from the bedroom that mr elliot was in in the closet and that was located between him and the door it's loaded with six rounds in the magazine and one in the chamber so this is a high quality gun cost nine hundred to one thousand dollars so it's not the sort of gun that's just left there for it if you're in years and years but it's hidden isn't it if yes sure it was under the the evidence was that it was underneath some clothes in a clothes hamper on the on the floor of the closet it was a the pictures you can see it's a it's a pretty shallow qualls it it's only about as deep as maybe like a suit of clothes to hang there so it's just sitting there right on the ground the pictures that we have were after the officers cheney any kind of dumped out the  pamper and the officer said you know the gun was essentially on top of the clothes after he dumped it out meaning he was apparently underneath the close early or so this is conceivable i don't think it's beyond a reasonable doubt if you really lived in the other apartment and he happened to be in a neighbor's apartment this is stretching things with surrounded by all these drugs the fact that the gun was hidden that he didn't have immediate access to it if it was his gun and if since he since there is a legal admission that he was possessing those drugs with intent to distribute and once that's a legal admission then whatever is attached to distribution like the scale like the gun is comes in i mean is it supports his conviction on the two counts that he is appealing how hard would it have been for you to because a lot of these cases it's very easy to say yes to he was a size whatever forty two and these clothes were size forty two are large he's large going to close in a second better right i don't know i don't know i mean i mean i don't have the answer that you're on i do know that i mean the testimony was that they were they appeared to be male clothing right but as far as you know sizes and things of that nature i don't know why we didn't know was that that information i don't have any information you didn't even have to i mean defense there in the courtroom you could say the rows were large and the jury could see was a large i don't know why we did that your own i guess my only point on that would be whether even even assuming for the sake of argument it impaired that he did live there but even assuming for the sake of already that he did live there if you are receiving mail if you if you put your return address on an envelope and you're receiving mail a location that's in addition that you exercise dominion control over that no not necessarily i mean i really think that if you think about how many drug dealers live it's a pretty high tenor in existence and they're not going to be on a lease potentially they're going to be you know surfing here and there and maybe this is you know a stable and trusted relative or a friend or you know just something that isn't necessarily the place where he lives i'm i'm actually really surprised that the prosecution didn't put in evidence of residence other than what happened to be on the bed it seems like there's hundreds of ways to prove where someone lives and  well it wasn't just that he happened to be on the bed your honor there was also the whole matter with a return address that's what i said and what happened to be on the bed with him oh yeah i was just you know their neighbors there are you know any number of if  guess your response that i would just go back to this day interview at this point and we're looking at whether the record was devoid of evidence of guilt we have the evidence such as it is of this residence coupled with the evidence evidence of you know guns and drugs going together to this newport cigarette package that had drugs in it in that case this court in noted that you know that guns and drugs go together and that that can be come one of the plus factors that this court talked about in alexand  and the gun was underneath in the at the bottom that's correct but it was a very short distance away from i mean i was in the bedroom but it was a very short distance away from where powell was surrounded by all these drugs it was between him and the door it was loaded you know there is ample we know how the police got him did he answer the door did they have a search warrant what happened you're on the record is silent whether they mean it it appears that he didn't answer the door because he's found in the back bedroom which if you look at the layout of the apartment it's kind of all the way down the hall ok when the officer whoever testif began his testimony he didn't say we had a warrant free the the on the testimony went along the lines of we were executing a search warrant at this address and kind of continued from there and we and then the next thing  apartment then they they can be presumed to have dominion and control over the contents of that apartment now i would concede that i think that the evidence in morrison long that the folks were actually living there was was stronger than what we have here but that's not all we have in this case we also have a nexus between the guns and the drugs the nexus the independent nexus between the appellant in that part and the closet where the gun was found because of that digital scale so it it's not we're not soley on the evidence that he lived there although that's powerful evidence we have this additional link between him the scale out of that is assuming that there aren't other drug dealers working around that very same apartment right because my additional skills could be linked is linked in with the with the cocaine residue appears to be linked to drug trafficking but to his term trafficking again that that's that's another thing that depends on his residence in the apartment now wrapped up it's not necessarily clearly visible it stowed away could be you know cousin joe's scale and and the gun it's kind of i mean you would take a loaded gun and shove it under clothes in the hamper and then when some stick appointees come in you're going to reach your hand down in there and shoot your finger i mean it's it's a strange place for someone to have it poised to use  for we're talking about was only it was not very tall i mean it was a short clothes it wasn't a big tall closing it was a short closing up or so it would have been all that difficult to to reach in and grab the gun so i'm just saying that it seems much more likely that somebody is stashing it there to hide it to ditch it than to have it at hand and for protection in the ongoing that's why it's so important i mean if the police knocked and he said police he puts that gun in the hand if the police throw the door open and come in and that gun is hidden away from the drug away from being able to protect him i realize he doesn't have to be able to use it just so he can possess it right that makes it makes a difference to me how the how the police got here the the the record assignable not point or our guess we would placed some emphasis it seemed like there was a difference articulated between the defendant's view of center view and yours and really see that in our in our case law it seems like the manifest miscarriage of justice is said is an iteration of a of a pla it's a very deferential deferential sandra right you're looking at the through the evidence in the light most favorable to the government whether any juror whether any rational jury could have found guilty so then if there's not a motion for judgment of acquittal the case all seems and i believe it's the williams case from just earlier this year talks about the talks about the record being devoid of evidence of guilt i'm just about devoid of evidence yeah i'm not really taking issue with you're saying it's more deferential and to the jury but you know we've got an opinion presumably and right and one of the points that the government had made was oh no this is a different standard from what the defense arguing and the williams language is appropriate the manifest miscarriage of justice and the devoid of the evidence and we would suggest that that's the standard to review this court use thank you thank you thank you can see this for his or she does have some time ok all respect to mr ewing i need to correct a couple of things that he said here he referred to the booker case but a closer inspection of the booker case shows that the police there was a police officer observing booker on the street and he saw him go to a location at least one time and come back with drugs and distribute them and when the police came to arrest him and they were they had a few words with him  said oh i need my newport cigarettes or words to that effect and then when they got over to where the newport cigarettes were there was the gun immediately adjacent to the drugs in the cigarette pack so that quite different from the situation that we have here you know the government needed to show on some level that that mr mr elliot had knowledge that the gun was there and that he had dominion and control over it some word some action some gesture i think the case law says has to connect a defendant with a gun or if there is not sufficient evidence and  represent your client and we thank you for your very able assistance thank you