that is based upon the facts developed during the january search by detroit police we have been asking for this court to reverse is conviction particularly in the charge of violating eighteen u s c section nine twenty four save for possessing a thirty eight caliber pistol which was found to be inoperable in one way or not deemed relevant either for this purpose or for further in store for possession or course where something was in operable but nonetheless loaded just seems to me like you know you can talk about an inoperable weapon i mean it seems kind of crazy there is no indication of how long that weapon had bullets in it and who put it into that condition according to to the expert who i had examined the gun who has retired from the michigan state police he said that in order to make this gun work it would be necessary to use two hands because the the primer had been sawed off and it didn't line up the gun with the barrel so it couldn't be readily accessible in used in the condition in which it was found to have i just want to get straight so it is the case that it was operable you mean you had to use two hands but it was  that it really was not in connection with the trucks that's correct your honor that there is a report prepared by an examiner from the michigan state police that checked off a little circle and it said in operable next to it that was that person's fine day mr bayle issue was the expert that the defense retained said that with a great deal of effort that this particular pistol could be caused to actually pull the trigger back eventually and fire a bullet the agent from the a t f who wrote a report after i examined the gun in question what was wrong with it said something similar to that the issue though that we have presented is not whether the evidence was sufficient to support the jury's verdict it's whether or not the judge erred but not allowing us to present any evidence got a loaded weapon here don't steal my drugs i mean it's not an says as to be operable to be used in furtherance of though no it isn't but i think that the test that has been adopted by this court and mackey is one that looks at factors maquis case identifies a number of them and says that they're not they're not exclusive these are examples things about whether or not the gun was loaded was one of them the circumstances in which it was found is another and i think that in this situation being able to make an argument to the jury would have presented an opportunity to defend against a storage which was otherwise very very difficult to defend against it was only a matter of talking but the proximity of the weapon and whether or not this theory he was there the result of this obviously is very significant because there were two hundred twenty four c charges in convictions mystery and one was found guilty of the feature of those incidents as the court was required to due to a five year sentence on one count and twenty five on the other so effective way mistreated and was sentenced than two to three hundred sixty months thirty years based upon the events that occurred at the  helen house in the opera house that and my position is that the the court's denial of our opportunity to present any evidence relating to these conditions call mr bailiff who was present in the courthouse to the substantial right in the ear was therefore not not harmless that all of us found in the in the same bag with a large quantity of pills is that right it was has been or if i would think any jury would say that even even a realistic fake gun found in a bag with a large quantity of pills would be used in furtherance of the drug crime when i mean w jury almost certainly find that i pray else would you have a realistic fake gun in your bag with pills well i think your honor good is a position as an extreme example but it seems even if it would be so if if that's even even if you even hesitate as to how that should be answered it seems clear that a jury is going to find a pistol it's loaded sure looks like a pistol if it actually is a pistol well that's going to be used in furtherance of a drug crime and it's not like it was found upstairs in the drugs were downstairs i didn't abandon the bag with the drugs and i'm sure that right i thought you said it was found in the same just a matter of course to defend their activities all the time and therefore that there is the kind of relationship that must be found by the jury to exist to to establish guilt for this violation was rejected by the court in bailey in that there is a quote in the the maquis opinion that refers to the congressional history and says that expert testimony the drug dealers curious firearm to protect themselves and their money may be insufficient to meet the in furtherance test i certainly just saying that since sufficient but that isn't all they have they have the bag in the pistol in the bag of pills or if there i was just they likely to have one he has pills so he's likely to have a gun somewhere certainly that's not enough you gotta come up with a gun and say you know it wasn't in the next house it wasn't you know locked in the basement maybe maybe well i mean we have cases where it's where there's all kinds of distance where we said well you the recent drugs in the house was probably in connection with them further of but here you're talking about very close that there is no it's the circumstances surrounding that however your honor i think don't provide any help to those kinds of facts there is no evidence in the record at all of any drug dealing that took place at that house there is no evidence of any activity at the house of any kind before the agents break in the front door and come inside the testimony was they were there for the purpose of executing a search warrant the testimony was the house looked like it was a functioning residence for someone there were furnishings in the house one of the exhibits showed a picture of photographs on the wall and food in the kitchen cabinets there there was just no evidence that anything happened there except these people were found in the house at the time the warrant was executed were about five other people found in the downstairs of the house they were giving tickets for being in a premises without having proper identification so in those circumstances i think that it is possible to to make a plausible argument to a jury in i think that that's what i'm saying is the basis on which that i was denied the opportunity to make a suit the defense for him the second and related issue concerns to the conviction for maintaining opinion from the district court which said that the dog with in the basement i'm not sure where exactly that came from in the record there was testimony that mr hoon said it was his dog he was allowed to take it outside with the police officer shot it but there is no support in the record that mystery only affair that he provided any kind of the systems to lead to the house are you talking about right now this is the one you're on of marijuana outside the window and there was money in the bedroom and that's all the evidence there to connect him to the activities here is codify pretty strong evidence or not it's not evidence that shows that he was maintaining the house he was present in the room he had marijuana they found money on the floor is essentially what it was there was evidence also charged with aiding and abetting he was he was in the there was a sense of surveillance that took place for a couple  hours with a multitude of transit visits to the house which were characterized as drug transactions an auburn house but this is the second ho say that really the judge should let in the evidence of operability are difficult to operate what impact do you think it would even have had on the jury if they also knew that it was both loaded and that it was found in the bag with the pills i mean  difficulty that anyone might have been attempting to actually use that gun that there is a plausible argument that while there was a gun there because there was no evidence that showed that it was ever presented to anyone or used in any fashion and any way at all the jury could reasonably conclude from that that this particular weapon wasn't really intended to be used to further the structure insane action  question of how it of what was done with it because nothing was done with it except it was it was in a bag that was found in a storage place in the attic right but all of those arguments  at all these other circumstances that there was no other the connections of mr him to this premises was so limited that there is a basis on which the seven as was relevant relevant in could have provided a plausible argument to the can't please the court stephanie clarke on and states i'd like to start with whether there were facts in the record to explain why the gun was loaded because my colleagues said that there weren't but there were facts they were the facts and colleague proffered to the district court one sixteen of the record he said that his own expert would testify that it was workable albeit with two hands and then and seven sixty eight of the record the a t f expert that the government didn't call since this was decided to be not relevant to the case would testified that he had actually test fired this weapon and that it was actually just not with two hands and that it required some warming up so there was some reason to explain why this gun was loaded but i want to get to one of your points judge white which is let's assume that it was evident cherry error because the threshold for relevance is pretty low and if it was even tricky to fire maybe the jury should have been able to hear that and i think under the facts of this case my colleague just cannot show that he was prejudiced by the failure of the court to allow this piece of evidence to come before the jury you weren't the trial lawyer no i wasn't i mean it's just a reaction it's like yeah wife fight over evidence like that i mean it's relevant if you ask me it's  actually can i think into that question based on the record this came up kind of late it came up on the third day of trial and the way it came up was that my colleague said i want to introduce this evidence to show that it's not a firearm right so he wanted to initially he told the district court and the trial attorneys i want to show that this was not operable and so it wasn't a firearm and that it specifically negates counts three and four three being the felony possession charge and for being this one twenty four c and so the government said well we disagree which makes the you know it's very clear it's not relevant son element and the court didn't make a decision that day the government had into speeded finishing its case that day actually bled over into the next day and that's when the district court took it back up again and said no you can't introduce it it's not relevant and then my colleagues explanation for its relevance kind of got a little sharper he said this is actually relevant also for count four in terms of can it further or did it further the drug crime and there your honor i can't really that's where the record kind of stops we don't really know why the government didn't come in with a good rebuttal it didn't come with an explanation at all it was late in the court had already ruled and the court said well you know i've made my decision and things moved on so that's why saying we're treating it as preserved but it was kind of late in the game and so it's not a case where like this was briefed and we fought hard against it i think if we had thought through we would have can't come to the same conclusion but here we can see that every single makea factor be an operable and still promoted to crime and what i was able to write in the briefing was a c f site supreme court case called mclachlan which dealt with not in an operable gun but an unloaded gun which could be used either to intimidate instill fear or  bludgeon to commit an assault with a deadly weapon now in the course of preparing for this argument today i found one other case that i think is even more helpful to the court so i'd like to provide that now it's inside the circuit it's called studio four o six and thir that does not fire can promote a drug crime so that's a little more on point and i apologize for not finding that sooner in the briefing so here you are so i'd like to turn now to the  user maintain a drug house these terms can be a little protean this court's provided some guidance and russell saying that evidence of maintenance includes evidence of control supervision or protecting and that's from russell so here when we go to the auburn house there's no mere presence here as my colleague claims this is a vacant house we know that from the record there's no refrigerator there's no utilities there are seven men in the house and from ten thirty pm to one o'clock in the morning sixty eight drug deals took place out of this house and other seven men who were found in this house only the defendant and his associate a call for control over the drug money from all those deals so here i would i would argue that if we have some supervision and control and jury could rationally and first supervision and control over that truck house because of the only two men of the seven men who have custody command and control over the money the jury also heard about some other acts prove former house and montrose house and you can see in the closing argument in this case this is on pages ten sixty five sixty seven the prosecutor showed explain that these showed the intent of the defendant and his associate a coffee to use less than stellar holmes i think was the term that the prosecutor use because these were essentially vacant abandoned homes in the warren del neighborhood of detroit to deal kamisese and that the beauty of the scheme was that by doing this they could avoid culpability using locations with no legal connection to them so you can see that this is how this evidence was used you can see it in the closing argument and  that shows supervision and control going back to the state house at the january i'm sorry what is the shows that he had supervision  control as opposed to was one of the people that was hanging out there or selling drugs there just because he had the money and some money in his pocket he had he had one hundred sixty two dollars and of all the men he w and a coffee were the only two that had any money so that's the crucial for i think so you aren't that plus the other accidents which helps on the intent to maintain that kind of supervision and control of the house because this was part of that and now it's another  house in warren dale which is a neighborhood in detroit and you know and you know again using the vacant houses in order to kind of have this problem right here what if they're with the same i mean what if there were other people there too just because a group of people goes around using these vacant houses doesn't mean that does that mean that each one of them are maintaining the house no you would want to you want to you would want to show for example i don't know what all the seven men were doing there some of them were probably customers maybe some of them are helping out with the drug dealing but what you want to look for is evidence of that you can give that to the jury of control or supervision or protection and here  aiding and abetting theory of liability for the auburn house that we're talking about now that was pretty explicit in the in the trial of the prosecutor in his closing argument you know kind of that's how he argued it to the gym you got that from the fact that he kind of came back in through the window  going back to the hanlon i think the evidence is perhaps even stronger because he has a dog in the basement guarding it he has he's on the first floor with that green bag with the thirty in the pills over five hundred bike in pills he races up to the second floor he knows where to put it in a  that somehow means that it could have been used for protection but obviously the da could've been brought out of the basement at any time and this court's reasoning in russell and the court cases cited in the briefing found that a vehicle that was in the yard and been parked in such a way that it was kind of some of that was kind of halfway through a fence in the yard and the trunk was facing the house and was full of weapons that those weapons and that situate that layout was evidence heard all of this and that this evidence is supposed to be taken like most favorable to the government's hard to see how this falls below that kind of bare rationality threshold articulated by the supreme court ok thank you thank you on the other issues and the rest of my that the operability of the gun was a fact question that needed to be decided by the jury and on the fifth when the judge had denied my request to admit those i asked for an opportunity to make a proper of exactly what the evidence would be and i took the judge that agent would say that if the cylinder was in the firing position before the him or was pulled back that he could not to press the trigger that was one aspect of what he had to say so i would submit that this was presented to the church as a question of admissability a second point is that the mclachlan mclachlan case from the supreme court is one that which the defendant was charged with armed bank robbery at the opinion by justice stevens it's too short paragraphs it just says that it is a dangerous weapon for the purpose of eighteen u s c section twenty one thirteen different statute different issue he was found by the police to be in what they thought were drug halves as they found drugs but in neither case did they find mystery alone in possession of the firm so that the evidence that the case the government presented didn't show a pattern of behavior of anyone having a gun for protection that's something that the jury had to consider and finally with respect to the dog and in the basement it records also clear that the the basement door was closed and i don't think that had been a dog in the basement of the house as a way anybody goes about protecting drugs up in the second four or the first floor and that it just wasn't consists of enough you might not want him around you might want to wait pit bulls get a bad rep in just by their name doesn't mean that they're necessarily vicious guard dogs and that that's all the evidence was is that it was a pit bull was aggressive