[00:00:03] Speaker 04:
Case number 14-3065, United States of America versus Bobby Lee Elliott, appellant.

[00:00:08] Speaker 04:
Ms.

[00:00:09] Speaker 04:
Royce for the appellant, Mr. Ewing for the appellate.

[00:00:14] Speaker 04:
Ms.

[00:00:14] Speaker 04:
Royce?

[00:00:14] Speaker 04:
Good morning.

[00:00:15] Speaker 04:
Good morning, Your Honor.

[00:00:16] Speaker 04:
May it please the court, I am here today as counsel for Bobby Lee Elliott, the criminal defendant and appellant in this court, to argue a case that is, I would submit, reasonably straightforward.

[00:00:30] Speaker 04:
We ask only that the court find that the evidence as to count two and three is legally insufficient.

[00:00:39] Speaker 04:
Count one is still a good charge.

[00:00:42] Speaker 03:
Let me ask you about that.

[00:00:44] Speaker 03:
Once your client says, yes, the drugs that I was surrounded by, I intended to distribute.

[00:00:51] Speaker 03:
I mean, once he concedes that and he doesn't appeal his conviction on that, why then

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is not the paraphernalia found, the digital scale and the gun found together, not with him, I realize, in another room, no one else in the apartment, other indicia of his residence there, that once he admits, yes, these drugs were for distribution, then the paraphernalia that goes with distribution also belongs to him.

[00:01:25] Speaker 04:
He has never

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for distribution.

[00:01:30] Speaker 04:
Well, he hasn't challenged his conviction.

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He agrees with me that the evidence is technically sufficient to sustain that count because the drugs were so near at hand.

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But he did not admit in the trial court, and we do not admit here, that he had the drugs for distribution.

[00:01:51] Speaker 03:
But it's been found as a matter of law.

[00:01:54] Speaker 04:
It was found.

[00:01:55] Speaker 04:
Yes, Your Honor.

[00:01:57] Speaker 04:
OK.

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The other little wrinkle with this case is that Mr. Elliott had difficulty getting along with his trial counsel.

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I've had no problems with him, but he had two trial counsel that he did not get along with.

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And he made the decision to represent himself.

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And so this had certain ramifications as to the way the trial was conducted.

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He had a great deal of difficulty formulating questions.

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cross-examining the government's witnesses.

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And, of course, he did not make a Rule 29 motion for judgment of acquittal.

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Therefore, the case has to be judged against a plain error standard as opposed to one of the more forgiving standards.

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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 found Mr. Elliott in the apartment.

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It is true, as Your Honor has pointed out, there was no one else in the apartment.

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But all of the, well, a great deal of the evidence was found in

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what the police officers referred to as the back bedroom, where Mr. Elliott was seated on a bed, and around him, within arm's reach, was a small plate with crack cocaine on it, a much larger bag on the bed with additional cocaine in it, and

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Three other items.

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One was his work ID from the Maryland National Capital Parks Association.

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It was a kind of a laminated card on a chain that you wear around your neck.

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I think you can see in our appendix we have pictures that the police had taken of the various items of evidence.

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There was also an envelope right near at hand that said Bobby on it and nothing else.

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That, of course, is his first name.

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And there was another envelope prepared as if it was going out in the mail addressed to RBC Ministries and with a return address that says Bobby Lee Elliott and the address which is 5319 E Street, Southeast, number 956.

[00:04:25] Speaker 04:
I tried to find that.

[00:04:28] Speaker 03:
I was just going to say I tried to find that exhibit.

[00:04:30] Speaker 03:
Was it a return address label?

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Was it handwritten?

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Or do you know?

[00:04:35] Speaker 04:
There weren't any photos of it that I saw, but I did go to the police evidence room and personally look at it.

[00:04:44] Speaker 04:
It's a handwritten envelope is the way that I remember it.

[00:04:51] Speaker 00:
And was the apartment number written on the envelope the same as the apartment that the defendant was found in that was searched?

[00:04:59] Speaker 04:
Yes.

[00:04:59] Speaker 04:
Yes, that is how I remember it.

[00:05:01] Speaker 04:
And I think that is clear from the testimony as well.

[00:05:04] Speaker 00:
Now, do you have any authority for the proposition that having the firearm in a different room and not readily accessible makes it insufficient for it to be the basis of account of being used in furtherance of the drug trafficking effect?

[00:05:28] Speaker 04:
Well, it depends upon the gestalt of the evidence that is presented.

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Certainly, if we had proof that Mr. Elliott was the leaseholder, 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,

[00:05:49] Speaker 04:
That, coupled with the fact that it's in another room, would probably be sufficient beyond a reasonable doubt.

[00:05:57] Speaker 02:
So are you contesting, Ms.

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Royce, that the evidence supports a jury finding that he was a resident of the apartment?

[00:06:03] Speaker 04:
Yes, Your Honor.

[00:06:05] Speaker 04:
There is no evidence that he was a resident of the apartment, aside from the fact that he was physically present in the apartment.

[00:06:12] Speaker 02:
when the officers came in and the envelope that you just mentioned, which has the return address with the specific

[00:06:20] Speaker 02:
apartment number.

[00:06:22] Speaker 04:
That's true, Your Honor, and had it been found somewhere else in the apartment, specifically in the room where the gun was, for example, or even elsewhere in the apartment, it would be a much more significant piece of evidence.

[00:06:35] Speaker 02:
Well, it might be more significant, but it's surely significant as it is.

[00:06:40] Speaker 02:
It is, Your Honor, and if the question were

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whether he intended for that envelope to come back to that apartment in the event that it couldn't be delivered.

[00:06:54] Speaker 04:
Yes, that's proof beyond a reasonable doubt that he intended for the envelope to come back to that apartment, but it's not proof beyond a reasonable doubt that he resided in the apartment or that he had anything except a

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a warm relationship with whoever did.

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People use other people's return address from time to time, particularly when they don't have a place where they are sleeping every night.

[00:07:22] Speaker 02:
Well, there's no basis on which a jury could find other than that anybody else lived there or that raises really a doubt about it.

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Is there evidence that raises any doubt that that's where he lived?

[00:07:36] Speaker 04:
Well, the burden was on the government to prove that he had dominion and control and knowledge.

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And there is this sort of minor amount of evidence that shows that that's where he lived.

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He was found there, and he has an envelope with a return address there.

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And the testimony for the prosecution was that the belongings in the apartment were consistent with him living there.

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And then the question is,

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Where's the doubt?

[00:08:03] Speaker 04:
Where's the doubt?

[00:08:04] Speaker 04:
No, Your Honor, with all respect, the things that were found in the apartment were not consistent with his living there.

[00:08:13] Speaker 04:
There were many, many things in the apartment, but they found nothing with his name on it anyplace else.

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They did not show that any of the clothes that were in that second bedroom were his size or fit him.

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They did not show he had the keys for the apartment.

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or that the keys, whatever he had on him, actually fit the front door for the apartment.

[00:08:35] Speaker 04:
They showed virtually no connection between Mr. Elliott and that apartment aside from these two pieces of evidence.

[00:08:43] Speaker 04:
He's physically present in the one bedroom with the gun found in the other.

[00:08:48] Speaker 00:
What about the evidence of the vehicle registration and his driver's license?

[00:08:54] Speaker 04:
We don't have any evidence of his driver's license.

[00:08:58] Speaker 04:
What we do have is evidence that was actually presented by the government showing that this 13-year-old Jeep he had parked out in the parking lot was registered to him

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but at a different apartment number within that apartment complex.

[00:09:17] Speaker 00:
In the same building, right?

[00:09:19] Speaker 00:
It was 950 instead of 956 or something like that?

[00:09:21] Speaker 04:
We do not know whether it was the same building.

[00:09:24] Speaker 04:
There is testimony that there were several small apartment buildings together.

[00:09:29] Speaker 04:
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 they have in their apartment.

[00:09:42] Speaker 03:
How did the police get in?

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Did he answer the door?

[00:09:45] Speaker 04:
The evidence does not tell us that, Your Honor.

[00:09:49] Speaker 04:
My time is almost up, and I had hoped to reserve some for rebuttal.

[00:09:53] Speaker 04:
All right.

[00:09:54] Speaker 04:
Thank you.

[00:09:54] Speaker 04:
We'll give you some.

[00:09:56] Speaker 04:
Mr. Ewing?

[00:10:02] Speaker 01:
Good morning.

[00:10:02] Speaker 01:
May it please the Court Jane Ewing for the United States.

[00:10:05] Speaker 01:
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.

[00:10:13] Speaker 01:
First, as the Court discussed with Appellant's counsel, there was ample evidence that Appellant lived in this apartment.

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He was the only person in the residence which that fact alone distinguishes this case from virtually all of Appellant-cited cases that are insufficient evidence of constructive possession.

[00:10:29] Speaker 01:
Second, as the court discussed with Appellant's Council, there was mail matter found in the apartment with Appellant's name, the precise address to include Apartment 956 as the return address.

[00:10:43] Speaker 01:
Now, of course, it's reasonable for the jury to infer that Appellant himself

[00:10:48] Speaker 01:
that return address on the envelope.

[00:10:50] Speaker 01:
That's where return addresses come from.

[00:10:52] Speaker 03:
So his name above the yes, your honor.

[00:10:55] Speaker 01:
It was said Bobby Lee Elliott, Apartment 956-5319 East Street, Southeast.

[00:11:01] Speaker 01:
Um, you know, third.

[00:11:04] Speaker 01:
So there's ample evidence that he lived in this apartment.

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There was no mail matter found in the apartment from anyone else.

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There was no, this second bedroom didn't even have a bed in it.

[00:11:19] Speaker 01:
So there was no, the evidence was devoid of

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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 linked, particularly he was linked to the closet where the gun was found.

[00:11:37] Speaker 01:
by the presence of that digital scale that was also in the closet.

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He's sitting in bedroom number one, surrounded by $14,000 worth of crack cocaine.

[00:11:46] Speaker 01:
And Officer Abala told the jury that digital scales are something that crack cocaine dealers use to weigh out grams, to weigh out the larger amounts of the crack cocaine.

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So there's the digital scale in the same closet that the gun is in.

[00:12:02] Speaker 01:
And we know from this court's decisions in a number of cases, including Johnson, McClendon, Booker, and Wall, that there's this nexus between guns and drugs, that guns and drugs essentially go together.

[00:12:17] Speaker 01:
I believe it was McClendon said, guns are just as much drug paraphernalia as more commonly seen paraphernalia, like small zip locks and things of that nature.

[00:12:29] Speaker 02:
That's very broad and very general as a theory.

[00:12:32] Speaker 02:
I mean, essentially, if you were operating with others out of the same premises, and you happen to be the one found there independently, but your cousin also is

[00:12:47] Speaker 02:
is dealing out of, you know, on Hilda's 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.

[00:13:01] Speaker 02:
It seems like that's a bit of a stretch when the standard is beyond reasonable doubt.

[00:13:06] Speaker 01:
Well, Your Honor, I mean, I take your question.

[00:13:08] Speaker 01:
I mean, there's certainly a possibility that, for example, someone else could have had access to the apartment.

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But at this stage, that's not the standard of review.

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The standard of review is whether the record is devoid of evidence of guilt.

[00:13:22] Speaker 01:
And it simply wasn't in this case because, number one, because of the reasons that we talked about, that it was apparent that he was living there.

[00:13:29] Speaker 01:
But this nexus of the guns and drugs

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If you look at where it's important to kind of look at where this gun was positioned, it was in it was essentially just right around the corner.

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into the second bedroom from the bedroom that Mr. Elliott was in, in the closet.

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And that was located between him and the door.

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It's loaded with six rounds in the magazine and one in the chamber.

[00:13:56] Speaker 01:
So this is a high-quality gun.

[00:13:58] Speaker 01:
It cost $900 to $1,000.

[00:14:00] Speaker 01:
So it's not the sort of gun that's just kind of left there for years and years and years.

[00:14:05] Speaker 03:
But it's hidden.

[00:14:06] Speaker 01:
The evidence was that it was underneath some clothes and a clothes hamper on the floor of the closet.

[00:14:14] Speaker 01:
In pictures you can see it's a pretty shallow closet.

[00:14:19] Speaker 01:
It's only about as deep as maybe like a suit of clothes to hang there.

[00:14:23] Speaker 01:
So it's just sitting there right on the floor.

[00:14:25] Speaker 01:
The pictures that we have were after the officers came in and kind of dumped out the hamper and the officer said, you know, the gun was essentially on top of the clothes after he dumped it out, meaning it was apparently underneath the clothes earlier.

[00:14:42] Speaker 03:
this is conceivable.

[00:14:43] Speaker 03:
I don't think it's beyond a reasonable doubt.

[00:14:45] Speaker 03:
If he really lived in the other apartment and he happened to be in a neighbor's apartment, this is stretching things surrounded by all these drugs.

[00:14:54] Speaker 03:
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

[00:15:06] Speaker 03:
since there is a legal admission that he was possessing those drugs with intent to distribute.

[00:15:15] Speaker 03:
And once that's a legal admission, then whatever is attached to distribution, like the scale, like the gun, comes in.

[00:15:29] Speaker 03:
supports his conviction on the two counts that he is appealing.

[00:15:34] Speaker 03:
How hard would it have been for you to, because a lot of these cases, it's very easy to say, yes, he was a size, whatever, 42, and these clothes were size 42 or large, he's large.

[00:15:47] Speaker 01:
You mean the clothes in the second bedroom?

[00:15:49] Speaker 03:
Right.

[00:15:51] Speaker 01:
I don't know.

[00:15:51] Speaker 01:
I mean, I don't have the answer to that, Your Honor.

[00:15:54] Speaker 01:
I do know that.

[00:15:54] Speaker 01:
I mean, the testimony was that they appeared to be male clothing, but as far as sizes and things of that nature, I don't know why we didn't elicit that information.

[00:16:04] Speaker 01:
I don't have any information on that.

[00:16:05] Speaker 03:
You wouldn't even have to.

[00:16:06] Speaker 03:
I mean, the defendants there in the courtroom, you could say the clothes were large.

[00:16:10] Speaker 03:
The jury could see he was large.

[00:16:13] Speaker 01:
I don't know why we did that, Your Honor.

[00:16:15] Speaker 01:
I guess my only point on that would be, even assuming for the sake of argument, it appeared that he did live there, but even assuming for the sake of argument that he didn't live there, if you were receiving mail, if you put your return address on an envelope,

[00:16:29] Speaker 01:
And you're receiving mail at a location.

[00:16:31] Speaker 01:
That's indicia that you exercise dominion and control over that.

[00:16:34] Speaker 02:
No, not necessarily.

[00:16:35] Speaker 02:
I mean, I really think that if you think about how many drug dealers live, it's a pretty itinerant existence.

[00:16:43] Speaker 02:
And they're not going to be on a lease, potentially.

[00:16:45] Speaker 02:
They're going to be, you know,

[00:16:48] Speaker 02:
couchsurfing here and there, and maybe this is a stable and trusted relative or a friend or just something that isn't necessarily the place where he lives.

[00:17:00] Speaker 02:
I'm actually really surprised that the prosecution didn't put in evidence of residence other than what happened to be on the bed.

[00:17:09] Speaker 02:
It seems like there's hundreds of ways to prove where someone lives.

[00:17:15] Speaker 01:
Well, it wasn't just that he happened to be on the bed, Your Honor.

[00:17:18] Speaker 01:
There was also the mail matter with the return address.

[00:17:22] Speaker 02:
That's what I said, and what happened to be on the bed with him.

[00:17:24] Speaker 01:
OK, I understand.

[00:17:25] Speaker 02:
I mean, just, you know, there are neighbors.

[00:17:27] Speaker 02:
There are, you know, any number of, if there's any employment records, if there's social security, if there's a lease, if there's, I mean, just any number of ways of establishing where someone lives.

[00:17:38] Speaker 02:
And it just, it seems like with these kinds of serious charges that you would have had a little bit more investigation of a basic fact like that.

[00:17:47] Speaker 01:
I guess, Your Honor, in response to that, I would just go back to the standard of review at this point.

[00:17:51] Speaker 01:
And we're looking at whether the record was devoid of evidence of guilt.

[00:17:54] Speaker 01:
We have the evidence, such as it is of his residence, coupled with the evidence of guns and drugs going together.

[00:18:02] Speaker 01:
I would point this court to the Booker case.

[00:18:05] Speaker 01:
I mean, in Booker, the gun was found on the street.

[00:18:08] Speaker 01:
So it wasn't even a situation where the Booker had the ability to exclude other people from the street.

[00:18:15] Speaker 01:
But because the gun was linked to this Newport cigarette packet that had drugs in it in that case, this court noted that, you know, that the guns and drugs go together and that that can be kind of one of the plus factors that this court talked about in Alexander.

[00:18:32] Speaker 00:
So it's not just... What were the circumstances of the Newport packet and the gun as far as their proximity to each other?

[00:18:40] Speaker 01:
You mean on the street?

[00:18:42] Speaker 01:
Yes.

[00:18:42] Speaker 01:
They were right next to each other.

[00:18:44] Speaker 01:
That's right.

[00:18:45] Speaker 00:
So these were things, the scale was in the closet, but it was like on a shelf or something?

[00:18:51] Speaker 01:
Correct, Your Honor.

[00:18:52] Speaker 01:
The scale was in a bag on the top shelf of a closet.

[00:18:55] Speaker 01:
There was only one shelf in the closet.

[00:18:56] Speaker 01:
It was essentially one shelf over a hanging rod, and the scale was in a bag there, and the gun was underneath.

[00:19:06] Speaker 00:
At the bottom of a closed hamper.

[00:19:08] Speaker 01:
That's correct.

[00:19:10] Speaker 01:
But it was a very short distance away from, I mean, it was in the other bedroom, but it was a very short distance away from where appellant was surrounded by all these drugs.

[00:19:18] Speaker 01:
It was between him and the door.

[00:19:20] Speaker 01:
It was loaded.

[00:19:22] Speaker 01:
You know, there's ample.

[00:19:25] Speaker 03:
Do we know how the police got in?

[00:19:26] Speaker 03:
Did he answer the door?

[00:19:28] Speaker 03:
Did they have a search warrant?

[00:19:30] Speaker 03:
What happened?

[00:19:31] Speaker 01:
Your Honor, the record is silent on that.

[00:19:36] Speaker 01:
actually come try to look into it a little bit more outside the record and before this morning and what wasn't able to figure it out so i'm not i don't have any additional there's a warrant that's correct we don't know whether they i mean 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 okay when the officer whoever testified

[00:20:03] Speaker 03:
began his testimony.

[00:20:04] Speaker 03:
He didn't say we had a warrant.

[00:20:07] Speaker 01:
The testimony went along the lines of we were executing a search warrant at this address and kind of continued from there.

[00:20:17] Speaker 03:
And then the next thing was we found him in the bedroom.

[00:20:19] Speaker 03:
Yes, not how we got in or correct.

[00:20:21] Speaker 01:
That's right.

[00:20:22] Speaker 01:
I see I'm out of time.

[00:20:24] Speaker 00:
If there are no further questions, I was trying to understand your position that because

[00:20:35] Speaker 00:
If somebody appears to have dominion and control of an apartment because they're found there and there's some evidence that they may live there, that they necessarily have dominion and control over everything in the apartment,

[00:20:53] Speaker 01:
Well, that Morris and Long, both in the Morris case and the Long case, this court said, if someone is living in an apartment, then they can be presumed to have dominion and control over the contents of that apartment.

[00:21:08] Speaker 01:
Now, I would concede that I think the evidence in Morrison-Long that the folks were actually living there was stronger than what we have here, but that's not all we have in this case.

[00:21:19] Speaker 01:
We also have the nexus between the guns and the drugs.

[00:21:21] Speaker 01:
The independent nexus between the appellant and the closet where the gun was found, because of that digital scale,

[00:21:30] Speaker 01:
So we're not relying solely on the evidence that he lived there, although that's powerful evidence.

[00:21:36] Speaker 01:
We have this additional link between him and the scale.

[00:21:39] Speaker 02:
Although that is assuming that there aren't other drug dealers working in and around that very same.

[00:21:46] Speaker 02:
apartment, right, because digital skills could be linked, is linked, and with the cocaine residue appears to be linked to drug trafficking, but to his drug trafficking?

[00:21:58] Speaker 02:
Again, that's another thing that depends on his residence in the apartment, no?

[00:22:06] Speaker 02:
It's wrapped up.

[00:22:07] Speaker 02:
It's not necessarily clearly visible.

[00:22:09] Speaker 02:
It's stowed away.

[00:22:10] Speaker 02:
Could be, you know, Cousin Joe's scale.

[00:22:14] Speaker 02:
And the gun, it's kind of odd.

[00:22:15] Speaker 02:
I mean, you would take a loaded gun and shove it under clothes in a hamper.

[00:22:19] Speaker 02:
And then when some stick-up boys come in, you're going to reach your hand down in there and shoot your fingers off.

[00:22:26] Speaker 02:
I mean, it's a strange place for someone to have it poised.

[00:22:29] Speaker 02:
to use it in furtherance of the activity that he's involved in.

[00:22:35] Speaker 01:
Your honor, if you look at it, I believe it's either government exhibit 104 or 105 that was presented with a penance brief.

[00:22:42] Speaker 01:
It's not really a strange place for the gun to be, because it's, but we know, I mean, it's been established by, as we know.

[00:22:48] Speaker 02:
No, I understand the layout, but I mean, even if it was on the shelf next to the, you know, then you come by when someone's coming to the door and grab it, but

[00:22:57] Speaker 02:
not a handy place to grab it out of the bottom.

[00:23:00] Speaker 01:
Well, the clothes hamper we're talking about was not very tall.

[00:23:04] Speaker 01:
I mean, it was a short clothes.

[00:23:05] Speaker 01:
It wasn't a big, tall clothes hamper.

[00:23:07] Speaker 01:
It was a short clothes hamper.

[00:23:08] Speaker 01:
So it wouldn't have been all that difficult to reach in and grab the gun.

[00:23:13] Speaker 02:
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 for protection in the ongoing

[00:23:26] Speaker 03:
That's why it's so important.

[00:23:28] Speaker 03:
I mean, if the police knocked and he said police, he puts that gun in the hamper.

[00:23:33] Speaker 03:
If the police throw the door open, come in, and that gun is hidden away from the drugs, 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.

[00:23:52] Speaker 03:
It makes a difference to me how the police got in.

[00:23:57] Speaker 01:
The record is silent on that point, Your Honor.

[00:24:00] Speaker 01:
I guess we would just say that, particularly under the standard of review that we're here today, which is whether the record is devoid of the evidence, we think it's certainly not devoid of the evidence that he constructively possessed that gun.

[00:24:10] Speaker 01:
So we would ask that the judgment of the district court be affirmed.

[00:24:13] Speaker 02:
Mr. Chairman, on the standard of review, you had...

[00:24:16] Speaker 02:
place some emphasis, it seemed like there was a difference articulated between the defendant's view of standard of review and yours, and I don't really see that in our case law.

[00:24:25] Speaker 02:
It seems like the manifest miscarriage of justice is an iteration of a plain error standard when we're talking about sufficiency of the evidence, and it's part of, I mean, can you explain to us whether really is anything different there in your view under our cases?

[00:24:42] Speaker 01:
Well, I think that even under a preserved motion for judgment of acquittal, it's a very

[00:24:51] Speaker 01:
differential differential standard right you're looking at the the evidence 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 law seems 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

[00:25:15] Speaker 02:
I'm just asking you, because you had briefed as if plain error and manifest miscarriage of justice are really different, and I just don't see them.

[00:25:23] Speaker 01:
I think they're similar, Your Honor.

[00:25:26] Speaker 01:
I guess I was using this court's terminology when I talked about devoid of evidence.

[00:25:32] Speaker 02:
Yeah, no, I'm not really taking issue with your saying it's more deferential to the jury, but we have to write an opinion, presumably.

[00:25:40] Speaker 02:
And one of the points that the government had made was, I know this is a different standard from what the defendant's arguing.

[00:25:45] Speaker 02:
And I just wondered if you cast any light on that.

[00:25:49] Speaker 02:
But it sounds like you are comfortable with a differential standard, a plain error review.

[00:25:55] Speaker 01:
I don't think the standard review is necessarily just positive in this case.

[00:25:58] Speaker 01:
We would say that the Williams language is appropriate, the manifest miscarriage of justice, and the devoid of the evidence.

[00:26:05] Speaker 01:
And we would suggest that that's the standard of review this Court used.

[00:26:09] Speaker 01:
Thank you.

[00:26:10] Speaker 01:
Thank you.

[00:26:10] Speaker 01:
Thank you.

[00:26:12] Speaker 03:
Let's see.

[00:26:13] Speaker 03:
Ms.

[00:26:14] Speaker 03:
Royce does have some time.

[00:26:17] Speaker 03:
OK.

[00:26:20] Speaker 04:
With all respect to Mr. Ewing, I need to correct a couple of things that he said here.

[00:26:26] Speaker 04:
He referred to the Booker case, but a closer inspection of the Booker case shows that

[00:26:32] Speaker 04:
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.

[00:26:44] Speaker 04:
And when the police came to arrest him and they had a few words with him, he said, oh, I need my Newport cigarettes, or words to that effect.

[00:26:55] Speaker 04:
And then when they got over to where the Newport cigarettes were, there was the gun immediately adjacent

[00:27:02] Speaker 04:
to the drugs in the cigarette pack.

[00:27:05] Speaker 04:
So that's quite different from the situation that we have here.

[00:27:11] Speaker 04:
The government needed to show on some level that Mr. Elliott had knowledge that the gun was there and that he had dominion and control over it.

[00:27:22] Speaker 04:
Some words, some actions, some gesture, I think the case law says, has to connect a defendant with a gun or there is not sufficient evidence.

[00:27:34] Speaker 04:
And I see my time is up.

[00:27:35] Speaker 00:
Can I ask one question though?

[00:27:37] Speaker 00:
Is it your position that

[00:27:40] Speaker 00:
If they prove constructive possession, then they also prove the 924-C count or that there has to be something in addition to just possession that has to be established for there to be sufficient evidence of that count.

[00:27:56] Speaker 04:
I think for a 924C count, which is the count that required the consecutive 60-month sentence, there must also be some indication that the person possessed the drug in furtherance of a drug trafficking crime.

[00:28:13] Speaker 04:
That's the additional element there.

[00:28:17] Speaker 02:
You said possess the drug in furtherance of drug trafficking, but I assume you mean possess the gun in furtherance of drug trafficking.

[00:28:22] Speaker 02:
Excuse me.

[00:28:22] Speaker 04:
Possessed the weapon in furtherance of the drug trafficking crime.

[00:28:26] Speaker 04:
If there are no further questions, we'll submit that the court should reverse and remand for a judgment of acquittal on counts two and three.

[00:28:34] Speaker 03:
All right.

[00:28:35] Speaker 03:
Ms.

[00:28:35] Speaker 03:
Royce, you are appointed by the court to represent your client, and we thank you for your very able assistance.

[00:28:42] Speaker 03:
Thank you.