it please the court good morning ethan ballo today speaking for eduardo arriaga do my watch my clock i'll do my best to save to start with the three challenges to nine twenty four see conviction i'll begin with the sufficiency of the evidence challenge as government counsel admitted to the district court quote the unique circumstances of this case is that the defendant allowed the c i to handle the defendant's gun in a manner is inconsistent with our theory that the gun was used for possession for protection in this gun transaction period close quote that c r one twenty one this court's work in krauss man in rio is compel the conclusion that there was insufficient evidence that are intended to use the firearm for pretty firearm to promote or advanced a drug trafficking transaction that was caught on videotape two issues of law before i get to the facts one as we know mere possession of a weapon is not sufficient and the court this is the court's work in both man and rios scrutiny the prosecution most prove quote the defendant intended to use the firearm to promote or facilitate the crime the evidence here is shown on the video tape reflects that one flores who is the government's confidential informant showed up at mr arias home before mr arriaga was there and he interacted with other individuals in the garage as about two at least two men there and a woman they talk to listen to music before mr arriaga shows up mr during the transaction mr flores notices there's a gun on the couch that's accessible to all persons so this is different than men and the notion of strategic location where a firearm could be secret it only available to the defendant and not everyone mr flores notices the gun and talks about it with mr arriaga at which point he asked for the confessed ignorance that's what he did he didn't understand how to take apart the gun that's why flores is assisting him can we back up from it yes sure the government partial response to this is well but that wasn't the only transaction for which he had this gut or was she could it the jury could have found he had to go or at least more specifically that the charge was  the whole fifty grams with respect to any other transaction that might occur and i understood what i have one question first for which is whatever happened to the original charges three and evidence that he had the gun to protect the fifty more than fifty grams even if that with regard to that particular transaction well there's this three problems with that i think that is there are other one we're only concerned about the a a distribution theory but there's no evidence that the gun would take want to about wasn't removed on the thirtieth was removed on may first wasn't dumb a second there's no evidence that that gun remained there there was no evidence that the methamphetamine remained there typically these cases are found when they do it the theory that they're espousing the gun is generally for protection as one is a search warrant reveals a gun in strategically located during a search warrant next to narcotics and the government raises the argument that that's the explanation and the senate has to rebut that argument in this case we have a video evidence is what happened on that date in april and there's no evidence that apart from this moment in time that's caught on video the guns ever present again whether methamphetamine is ever present again they do a search of the house they don't find the weapon they don't find any methamphetamine so i don't think that gets them out of the sufficient evidence at trial that mr i don't think i look at because not all of the meth was sold in this transaction right so you have a video of the gun and the drugs and why isn't it reasonable inference that even if he's friends with this guy who's buying drugs right now he needs a gun for the next guy is going to come along and buy the rest of the meth where's the evidence of the next guy with somewhere to go i don't know but it's the government's burden to prove beyond a reasonable doubt that after flores leaves mr maintains the gun in a strategic location and maintains the methamphetamine at the same location and so the question that there's no evidence of that and it's their burden to prove that he already met the minute after the informant still has to go in and the rest of the math and he might have put the gun away he might have unloaded the gun he might have taken the meth away we don't know it the minute after instead of the minute before what case tells us we need to know that after is like the relevant time to think about why the gun well the gun we know the minute before is and even the minute after the gun is not strategically located in the words of krausen man or rios  the this whole business about taking the gun and hanging it apart all that had happened the fact that he had a loaded gun sitting on visibly on the couch while he's conducting the drug it seems to have any expertise and that those were the two points i was going to make you should right there your honor as my time runs one of the won't last i want to say before moving to that question your honor is look at the video closely the notion that he was intimidated the floors and terminate saying drug dealers usually have guns is insufficient as a matter of law that's rio's done subtle law but let's talk about me and see me which is what caused the hard question we challenge methodology the trial counsel trial methodology his methodology yes but what you didn't show was separated out his x i mean the same to me that it's quite possible that he was sufficiently one year as to his expertise about drug transactions in general you  without a one for hearing like hanky the judge sustained his expertise this is a man seen as testimony when one spends as much time as i have talking to people that sell drugs you tend to acquire certain expertise is how they operate you know three sixty three that's no when they ask about the gun he says i can and i can imagine why he would do that this is rank speculation is not he's never seen as if there were jackson at that point this expert even if we assume he's an expert on drug transactions he doesn't have an expert  what he's about to say they challenge him they challenge bit of plenary charge was testimony that he didn't have reliable methodology to testify about the subjects the judge did not did not provide a one zero four hearing the method well it's not a good i mean if that objection was just generally he doesn't have a good have a reliable evidence this isn't just expertise in a subject matter area the substance has to be reliable based on a methodology that's applied in this case nancy testify speculatively i can understand reason why and then and that's not what i'm asking maybe i misunderstood the record of when the objection was made but i thought the objection was this expert can't testify about anything about drug transactions and if we disagree with you about that because we think he was enough of an expert to do that then when reformulated to be  precise about this i think was a broad objection to his testimony which is a sufficient to cover the claim and he covered the specific argument that this testimony was speculation not based on methodology unreliable and not established under seven o two it also would support the seventy four b challenge when you look at his testimony he adopts a first person not this one drug dealers do and he says what he describes why you did this if you take away the ammunition supply but you really want your customer to know what i what i do have a gun to defend myself with i'm about to show you a large quantity of drugs that you might just want to come back in five ten minutes two hours from now to rob me of i have a gun it's a real gun you can even look at it just know i have a gun to defend myself so please right so when he walked out there was an operable gun he render it useless and the last piece on this i know i'm running out of time there was more evidence to the other evidence was that the confidential informant said he felt intimidated right if you look at the video i think that's not no idea what the law is they're discussing lopez he gets it wrong he doesn't know crouse man or rios words he doesn't understand and we says they should apply look i'm sorry i'll julie the defense lawyer ok so he was fined for  defendant to have been a plus b equal oh no i would disagree the jury expressed confusion as the district court and the government recognized on page eleven seventeen of the cars under castillo mendez and bowl and back the judge then for the nati these decision and warren look at powell from one thousand nine hundred sixty five if it's correct it doesn't matter you have to clear away the jury's confusion and this answer did not clear away the confusion the district court was required to do more forfeit that  you if you look at castillo mendez and bolton back he had an obligation to give the correct answer which came from comes from man rios and kraus which is mere possession isn't enough and you have to use it to advance a promote simply referring back to general instructions as condemn good morning may it please the court my name is full of cups since can i represent the united states i'll take those issues in order if i may so starting with sufficiency of the evidence our response is one the court already picked up on which is that this charge was larger than fifteen grams an alleged fifty grams or more of methamphetamine so the transaction that occurred that they had april with the confidential informant is evidence that the intent was to distribute that pound of methamphetamine but it is not the extent of the government's case judge friedman you noted that both before as well as after before the it seems to me that at least with regard to this transaction if that's what we're talking about what happened afterwards is somewhat informative why did formative about his intent of why he had the gun for this transaction so your response is your honor first of all just now is the first i've heard the idea that the gun was inoperative afterward i don't know that the video just i believe that's what they're talking about is how it's a small handgun how the slide comes off goes back on the cia also testified that before receiving the gun area had taken the clip out so it's on th intimidating well so the see i talked about that he said that in my experience and what area is showing me is that he's serious he's a sight the guy who not only has a pound of methamphetamine he's the type of guy who has firearms so he is the idea that there were probably other guns and that's what's actually intimidating could be other guns could be he comes back if he was thinking in his mind he'd get some buddies and come back later for that four pound knowing it's worth five thousand dollars or more he's disinclined to do he whether the defendant had it and further and such a drug crime with the fact that the defense that the c i felt intimidated because he's weird because even though somebody had some a gun an unloaded gun doesn't mean that it was intended to  repeatedly said that's a key consideration is the gun where the drugs are kept so mr bellamy mentioned the example of where we discover with a search warrant but you can always adjust to having the kind where the drugs are kept  enough no i think the cases do say that i think the cases say gun readily usable meaning loaded close proximity to a stash of drugs so this is like a search warrant situation defendants maybe not even home the cases absolutely say that that is sufficient evidence for them maybe it's not an overwhelming case maybe that's not a sure winner force a trial but if we get the conviction that's certainly sufficient evidence on appeal and the cases that have distinguished are things like the gun is unloaded in a safe at the other side of the house or the gun is kept at some other house where there's no evidence of drug dealing activity that's not this case this case is a loaded firearm answer some time ago and i'm sorry whatever it was he wasn't convicted of so therefore irrelevant now it's been you might not be having this problem that he was so therefore can we look at that transaction anyway or can we look at something else i think that the july transaction help show that the garage is the locus of drug dealing activity for this defendant and that is key for one twenty four c the court said that again and again more broadly look  i do think the evidence is sufficient in that moment with the confidential informant to support one twenty four c but it does not matter because if that transaction was this whole case then he wouldn't even be guilty of count  to come back to what you answered before us first is kraus says evidence that a defendant merely possessed a firearm in a drug trafficking crime scene without proof that the weapon for the independent drug trafficking offense is insufficient so how can you say it's sufficient so again your honor the cases i am aware of from whether they're cited in these briefs or broader more broadly in research the only cases that that statement of laws aimed at are cases like the gun locked in the safe unloaded or the gun in the car in the drug dealing happens in the back yard some obvious separation that's not this case this case is the loaded gun mere feet from the pound of methamphetamine moreover at the location where we know from two separate occasions that the defendant sells drugs we think that's plainly sufficient if the transactions it's about possession with intent to distribute right there don't have to be any more transactions as i understand that's exactly right and the gun protects that bigger stash of meth we think the jury on a sufficiency of the evidence challenge the jury was imminently rational to make that conclusion if i may all and that is what so kraus articulated that just having the guns not enough but then went on to hold that having the guns in the that i think is closer to me your possession someone has a box in a truck or something right there is also the gun in the truck case locked up i believe the truck pulls up while officers are executing the search warrant at the campsite the court says that's not enough i suppose that's mere possession that's not this case and i think if i may that's a nice segue to the jury instruction issue because even setting aside what we think is clear waiver the supplemental instructions that you presented it as if the waiver were the agreement one sentence response but that can't be because in fact they wanted to use it as i understand it the judge had rejected their original proposal which was to say nothing and at that point they were simply  faced with two possibilities one sentence or two sentences and they agreed to the one sense but that doesn't seem like a waiver of the and one to be in a waiver of the position that they should say anything right perhaps not but that's not now what the right and so has a real problem and said the waiver was when they said you should say anything the waiver i believe i would rephrase other little more broadly the waiver was strenuously fight against say more so first day when nothing then they they say are it was just the one sentence and as the government continually says look you know judge there is a lot of more case law we can give the jury more help the defendant continuously says no i never made this proposal one is making now true but i don't think any case on waiver has ever said that the exact language needs to be on the table in the district court in the defense needs to reject it that's not know point is that did he understand that he could tell the jury more from this court's case law of course he did because that's what the government are you the expert question sure of course so because it seems to me that without the expert on the  c i talked about those things he says in my experience drug dealers like to carry guns to protect their drugs right so that testimony comes from the c i the expert they way some of they have a right how is this expert an short forty three minutes of testimony the first quarter or half is just him describing all his twenty five years of experience with thousands of investigate and a lot of it is about to drug transactions south and that's not addition now right but as to the gun well i think several points first of all i think it is generally inferred from his short testimony that he's speaking from his experience throughout he spent like i say a quarter or half a little time to get range he says he has no experience with this well i disagree so the language let's be very precise there's a lot of fudging from the defense in this case let's be very prophetic lace he uses the word uncommon i would argue that that word suggests he's talking about experience is something common or uncommon that's a factual observation or characterization so he says well i think that that's uncommon about handing over a gun and then a couple of other things earlier in his testimony he had talked about drug dealers commonly having firearms in close truck proximity to drugs and he said he knows that because he's executed search warrants on dozens or hundreds of occasions he talks about the fact that defendants often have a felony prior and so they will not want to keep a gun on their person because they know that that's an extra crime and that can help inform reading this situation and what he says about this situation where the gun is on the couch as opposed to in the defendant's waistband for example also earlier the expert it talked about again from his experience it is not uncommon for people who possess significant quantities of drugs to be robbed by other people so he knows that as a factual statement from his experience that it is right robbery is common so that plainly informs what he says about the gun and he never says as counsel said a moment ago the word imagine he  doesn't it is not that he is just speculating or making this up out of thin air he says i could see some reasons why and he goes on to name them he does so in the hypothetical and exactly says is this is what he says would that be unconventional or uncommon i would have to say yes would it be completely outlandish i would say no i could see some reasons is that the same as i can i can make it up essentially i mean what does it mean i can experience with something like this he said it was uncommon and he said he could see some reasons yes and i think given the phrasing of his answer as well as the things he had talked about just moments earlier in his  for the extra minute your honor i appreciate it i'll make three short points if i may one and this goes to i think what judge feels been talking about take a look at krauss and man the question is strategic location to infer intent and what  says i think is just thomas opinion is when you have a room full of drugs and there's a cache of firearms that are hidden from view that only the seller would know that it was ten from here just there in the dresser and there's that's how we define strategic location there's a three or four firearms in that room and he distinguishes those from a shotgun and other guns in another part of the residence and it's that strategic location which raises the inference that anyone walking that room sees the transaction but no one knows there's a gun there but the person who put the gun there and that raises an inference here before our even gets that there's a gun available to anybody we don't know when it gets there we don't know when it leaves we know that it's disassembled we don't know whether it's reassembled we don't know there are several there again we don't know whether the meth ever there again we know on that thirty two minute videotape that it's there and disassembled that the lack of strategic location is the distinguishing factor which makes it you cannot raise the intent especially that's for protection not only when it's readily available but then given to the buyer to disassemble but the jury was told that they had to find that the gun was in furtherance of the crime right they ask why don't we need to assume that that meant they found it was going to be useful somehow so strategic  location reasonable inference of what they thought was going on i don't believe so none of these facts and the facts are they asked watch the exact video then they asked the question i think the second answer the where it was right to object to second answer that wasn't helpful that was a legal answer the correct answer  back should have been mere possession isn't enough he has to have the intent to advance or promote a drug transaction and the jury didn't understand that their confusion was never cleared away because they were centrally told treeview the initial instruction which under this court case law is not