requires a media direct physical control of a firearm there is no indication that mr smith ever had immediate direct physical control of the firearm there there  understand that i understand the timeline is important and i will be filing a motion to expand the record to a please mr collins pacer case and so the documents including the superseding indictment that he  and at least it would have some kind of basis but the fact is these weapons were off the streets completely and were unavailable for protection by my client mr smith on april th two thousand and nineteen the da seems i mean it has a little bit of a law school exam quality period and i'm wondering how it your honor it when mr smith was interviewed by the midland police they used a tactic that i'm not a big fat but that is legal and what they did is they showed him pictures of these three weapons and asked him why distinguish bret's would be on all three weapons there is no evidence that his fingerprints is that is the very tenuous taing that they have for any kind of actual possession kept to it's a problem and to another report issued is that the government fails to prove by a preponderance of the evidence that mr smith ever had constructive possession of the two rifles election count wasn't did mr smith hold a gun in this hand or did he not that is the fact and there is no evidence on the record supporting that he ever kept that any kind of control over that g him the weapon and holding it in his hands and mr smith could it touched that weapon but there is no evidence that he ever hat any direct control of that letter and wouldn't the fingerprints if they did have no evidence that there was ever fingerprints on that weapon nothing to tie me and forensically holding that weapon at any point and he never had that student that he is actually innocent of the offense to which he pleaded guilty it's highly unusual i've never seen that and there is the other problem is that this sentence was enhanced by a very tenuous movement within one of the cars that was perfectly rise but there is no evidence that mr smith ever touched those guns or that he even touched the car that was burglarized witnesses say there that maybe supporting a conviction but we're just talking about your honor there is no evidence on the record that would not also be attributed to another man in the area engaging in the exact same activity and in contact your honor in my research i've never found one case that suggested anything like touching a firearm there was no case law that supported that act his friend's house right precisely your honor that would have been a constructive possession allegation that the government used and actual possession theory on the account mr smith plead guns being used in a single offense that is factually inaccurate there there is no tie between the two the two the senses the election the two separate indictments that would allow or justify any kind of enhancement that they were a single offense or pattern in the anyway and i did i could look at the government's analysis about  conduct and there is no evidence that would support any kind of analysis that would allow for this kind of enhancement when i was on the other actual possession that you may not have judged just someone put it in your no common accomplices the men that were involved in both separate diagnosis did not have and there is no evidence that they knew each other at all or had any relation and the two allegations of the two separate  happened months apart and there is just nothing that would support a preponderance of the evidence finding that would justify handsome men of three guns used in a single  as a cost situation where he's just agreeing to something and going along with everything without having any idea that he was completely innocent of the offense to which he pleaded and his lawyer allowed him to do that it's a travesty it's a phrase really problematic situation i've never seen anything like this case it's highly unusual all right thank did pretty much stick with the actual possession because in this case there was a fingerprint on the  why don't you know that you murder john that doesn't prove that i have evidence that you are john i'm asking you right i mean how is a question proof of something particularly when a police officer asked because i ask questions that are not three at the ends but that's information that's contained in the factual basis and there's information also in that yes our criminal complaint about it so where is there anything other than any question by the police officer of why are your fingerprints on these guns which we know could mean that they were on there or it could mean that the police officers just asking not to get it in the police also doesn't know it is asking them to get  the so called fingerprints were there and that it got there by touching so i don't get i mean the concern i have is all the time we spoke you say why would your d n a be in jane's apartment ok but when they circumstantial evidence to prove to to establish that there was a preponderance of the evidence to support that it can't spit and you can also consider the circumstantial evidence and the evidence  that night when he broke in and he led with the police showed that the police caught him and the other guy too and he had in his pocket a glass cutter and a glass at the but the question that is not ethical and that it's improper to infer that that is a factual tying single friends with my client to any weapons it and  evidence constructive possession of the two rifles that were we to round it one car a close examination of the record indicates that one witness saw two men in the area but why isn't that potentially constructive when you've got to a burglar couple if you will going in doing something together and there can be responsibility for what the other does why isn't that enough out and held it in its hand the government's allegation is that he exercised dominion and control over it and didn't get to steal that like he wanted to destroy yeah he was trying to and so on well you know you're