court i am back occurs from the public defenders office arguing on behalf of mr ronald white mr white challenges the sufficiency of the evidence to support his conviction for possession of an unregistered firearm  makes two bases for the challenge one that he did not constructively possess the firearm and two he did not know the characteristics of the weapon that made it subject to registration constructive possession requires that the defendant have knowledge of the objects presence as well as control over the object it's not established if the defendant only has control over the area where the firearm is found but does not know that the firearm is there in this case the district court made the following factual findings of the duffel bag which was in a closet in a home where mr white was staying the duffel bag where the street sweeper was found had an amtrak ticket and it with ronald white's name on it there was a three fifty seven revolver in the bag in addition to four other guns including the streets with sweeper and mr white d n a was on that three fifty seven revolver his parents the homeowners denied any knowledge of the duffel bag or of the guns and when mr white he lived in california and he traveled back and forth to kansas city when he stayed with his parents he would sleep in that bedroom and he kept some clothing in that bedroom closet those established that he had constructive possession of that duffel bag they don't establish that he had constructive possession of the street sweeper there's no evidence from which it could be  that mr white knew the contents of the duffel bag and if he doesn't know the contents of it he doesn't have constructive possession over the street sweeper in getting to whether mr y knew the characteristics of the street sweeper that made it subject to registration the district court said quote the person possessing the gun is easily aware of the bore being more than a half inch in diameter but the court never makes a specific finding that mr white ever saw the street sweeper that he ever handled the street sweeper that he ever loaded it that he ever possessed any shotgun shells that would fit this the gun we don't know how the street sweeper got into the duffel bag and we don't know when it got into the duffel bag the amtrak ticket that is in there is dated eight months prior to the date that the police did the search the day they found the gun so maybe that three fifty seven revolver was in the duffel bag some point when he's traveling back and forth and using that bag we have because no indication whatsoever when the street sweeper got in there or who put it in there and this is not an instance of x case involving exclusive control that was continuous over a period of time what we have the police diamond andre simmons has his d n a on a stag arms rifle that's also in the duffel bag we've got a mixture of at least three people's d n a on a bushmaster rifle that was in the duffel bag we've got at least three people's d n a on the rome arm draco that was in the bag we've got a mixture of at least two people on the street sweeper but mr white is excluded from the d n a collected from the  street sweep now the d n a reports they don't say all of these identified profiles belong to the same three people so there's at least we know at least three other people are involved in that their d are these guns but it could be as many as eight different people if these if these unknown files are all the same you could have up to eight people so the government argued that th gun that it was a collection and that mr white was like a wine connoisseur or who picked a gun for each particular occasion i think the facts that i just outlined and with respect to the d n a with respect to the police investigation this w gang activity these guns belong to a bunch of different people and somehow they get rounded up and they wind up in this duffel bag and a duffel bag gets put in mr the bedroom closet where mr white stays from that i think it's pure speculation to say that mr wyatt had to know that street sweeper was in the duffel bag and he one of those people could have put the street sweeper in there what i his what if the gun that has his d n a on it the ripped the revolver is in the bag and somebody says we got him or these guns these guns are hot or whatever we just don't want somebody else of one of these other eight mysteri people round up the guns and hide in there that doesn't mean that mr white knows the street sweeper is in the duffel bag and i think that is are you making basically a jury argument that at this point we have to give all reasonable inferences to the right you do and what i'm saying to be given all the inferences the other way that all these other possibilities all reasonable all possible  and it would also be possible that he put the street sweeper in the bag and along with the three fifty seven and he knew full well that it was in there but what i'm saying is that's not an inference i'm saying that that statement you cannot be made without resorting to conjecture and speculation so if you have two reasonable hypotheses you're right i lose you do have but they have to be limiting amtrak to get you have his d n a to get eight months old months old so we don't know when that got in at least a reasonable inference that that means that he was in the bag at some point and i think it's a reasonable inference he's in the bag at some point in time but was the street sweeper there that's what we have to know when  cases that i cited in my briefs and the cases also cited by the government for these kay says there was always some fact that they saw the gun handle the gun usually most of these are sawed off shotgun cases and if you handle it you can tell the weights off of the barrels too short and those are easy cases this is a hard case but it's it's just speculation to say he knew it was in there i think united states versus pace that's an eighth circuit decision and i think that's a good example of what i'm talking about there's a defendant he's a driver the car passengers in the car they've got duffel bags full of two hundred pounds of cocaine that are worth millions of dollars driver gets stopped he says i don't know what's in those duffel bags they just told me to drive a car and that's what i'm doing so he had said he had his own duffel bag back there with his clothes and stuff in it but he had no idea what was in the other ones and the court refused to engage in any speculation and say how could it possibly be that this guy does not know what he is doing that he is actually a blind mule transporting hundreds of pounds of cocaine and had a good point who would let him do that who had killed him you know that i guess the passengers there maybe he could be guarding the drugs as well but to me that's the that's very on close to this this case and what you're saying i mean he's got a duffel bag and he's got his ticket in there but the eighth circuit just refused to resort to that kind of speculation i mean to my rebuttal time if you don't mind  good morning your honor is in may please the court my name is jeff macarthur i was the usa at the original trial the initial brief and the bank brief as well as this one at the end bank panel this court overturned its prior precedent and bar and ruled that knowledge that the defendant must have of the bore size was a necessary element in this crime this case was retried and that element was found by united states district court judge rosen catch mark i would note at first that as your honor noted the defend defense counsel makes a point there is a lot we don't know and speculate as to various reasons how the gun could have come to be in the ba well the evidence presented need to exclude every reasonable hypothesis except for guilt and that is the standard in the circuit in fact if there's any construction of the evidence that could have permitted judge hatch mark to have found beyond a reasonable doubt the elements of this offense this court must affirm the case that defense counsel cites united states pace and opposite to the situation we have here there was not nearly as much evidence as we have putting the defendant in direct control and having knowledge of that bag and its contents we have a receipt inside the bag as judge grunter recognize we have a ticket in the bag both in the name of ronald white the location of the bag was inside of a closet of a bedroom where ronald white stayed almost exclusively at his parents house they disclaimed knowledge of the bag or its contents and both of his parents explained that is the closet and the ro which the defendant stayed in fact his clothes were in that closet there were no inferences to be drawn from united states the prate pace there are numerous infantry inferences to be drawn here along with the circumstances where that duffel bag was we also have d n a located on a three fifty seven revolver located inside of the bag directly next to this street sweeper shaka and so as to constructive possession there is numerous evidence that the district court could draw upon to make the reasonable inference that of course where this bag was his d n a inside of the bag ronald white had knowledge and was in constructive possession of that bag he could control that area he had keys to the house he could come as come and go as he pleased now the main point of this argument before this court i believe is probably the defendant's knowledge of the bore size at issue and indeed the district court judge found that knowledge of the bore size is an obvious characteristics character characteristic on the firearm by anyone who possesses it and indeed we have a bore size of point seven five two inches the bore size need only be more than one half inch i would note that the d n a that was on the three fifty seven caliber revolver or size of that gun is less than half of what the board sizes on the street sweeper in fact all twelve gauge shotgun is in existence have a bore size on average of point seven to nine inches which obviously would be well above the it would take it actually quite far afield for any reasonable interpretation of the evidence that mr white being in possession of this firearm having been inside of that gun we know by the presence of his d n a that he would have zero knowledge and in fact this is something that the court obviously found there was a reasonable inference to conclude that he knew that the bore was the size it was in fact at trial are a t f expert ron davis showed the court through the use of different that he created about the significant difference between point five inches and point seven five inches it is actually quite significant and also note that this street sweeper shotgun and as the court recognize initial opinion its initial panel opinion this is a unique looking firearm this is this is something that catches a yacht looks basically looks like an oversized tommy gun it is a shotgun unlike any shotgun that is out there it is essentially a shock and that can spout off twelve rounds in three seconds because of the utility of this drum magazine that it has on it and so anyone in possession of this gun has a district or concluded could obviously tell the size of the bore here we have twelve gauge written on the side of the firearm which indicates that in fact it was a twelve gauge and i cite to a fifth circuit case where there actually was judicial notice that was taken that all shotgun to have a bore of more than one half inch this was apparent on written on the side of the gun it was also a loaded gun with five rounds of twelve gauge ammunition that anyone loading a twelve gauge sho shell in contrast to say three fifty seven round could see that it's a much much bigger bullet this court in the past and as a side in the government's brief  eighth circuit case united states the backer which notes that in that case there were there was no direct evidence of knowledge of the characteristics of the firearm in that case that was at issue that was a machine gun but the court concluded that x the external models were obvious in that case and therefore a reasonable inference could be drawn that the defendant knew of the characteristics of that firearm and also note that this circuit noted in a footnote and it's in bank opinion that's footnote eight the fact that all twelve gauge shotgun is have a bore of more than one point five entrants is an inference that can be drawn from a practicality the court did not consider that inference in its opinion because that would be an argument better served for a jury an inference that they could draw from the facts or in fact it appeared that district court judge katz mark did draw that very inference from the facts along with the obvious appearance of the firearm in regards to that obvious characteristics i cite to several cases in my brief wherein the defendant where there is no direct evidence there is no statement by the defendant saying i am aware of the incriminating characteristics of my firearm that is united states versus miller  of the eleventh circuit united states versus more out of the d c circuit united states versus foster out of the d c circuit in all of these cases the incriminating nature of the firearm itself the open an obvious characteristic allowed the district court to infer knowledge at that point allow the jury to infer not the same should be found here here the bore size is an obvious characteristic character a characteristic as a district court judge rosen catch mark f d and also note though it's an unpublished opinion i do cite to it in my brief there is an eighth circuit case united states versus hutchens two ninety two fed appendix eight forty two from two thousand and eight that is in regards to the length of a shotgun barrel and this court noted that testimony about the length of the guns barrel and the admission of the gun into evidence can be sufficient circumstantial evidence from which a jury could infer the defendant knew the length of the gun barrel was less than eighteen inches now that involves the length of the barrel this involves the diameter of the bore but the same logic should apply here what was really what was the specific evidence about the  access to the room where the duffel bag was found yes or so there was evidence that mr white had a key to the home his parents gave him permission to come and go as you please i believe he had code access to the garage door as well the room in which this gun was found in the closet of that room this was the the room exclusively where ronald white stayed every time that he visited he had clothing that he kept inside of the room he had and specifically in the closet right next to where this where the stuff a bag was found and inside of the bag was evidence that ronald white has  had used this bag on numerous occasions we have an amtrak train ticket in his name we have a receipt receipt from a different circumstance in his name were there other other occupants of the home of the parents so other specifically the parents indicated that occasionally another someone else might stay but that was ronald white's room whenever he came to visit as his usual residence was in the los angeles area there are no further questions i'd like to distinguish a couple of the cases that counsel referred to in us back or there definitely was direct evidence that he knew the characteristics of his gun it too was a street sweeper and the facts were is that he had his street sweeper along with several other guns laid out on his bat and he was pointing them out to a friend he can see the street sweeper right there so he knows the board diameter so that would be direct evidence you got to see it or you got a handle it in some way i would mention shell case out of the tenth circuit and it's in the brief driver and passenger are riding in a car there is a shotgun behind them in the backseat they get stopped for a traffic violation the passenger keeps reaching behind him trying to hide that gun it's obviously he knows of its presence the question is does he know that it has a shortened barrel below eighteen inches and the court said no that is speculation we can't go that far we uphold a conviction for being a felon in possession of a firearm but we can't convict him of possession of an unregistered that unless there is proof that he saw or handled that or in some other way knew that it it had to be registered because of the shortened barrel they weren't going to convict counsel also referred to the miller case and the more cases i distinguish those in my reply brief i would just encourage you to look at those every single one of these cases we