[00:00:00] Speaker 03:
Case number 14-3064, United States of America versus Harold A. Dorman, appellant.

[00:00:07] Speaker 03:
Mr. Axum for the appellant, Mr. Ewing for the appellee.

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May it please the Court, Council, Tony Axum representing the appellant Harold Dorman.

[00:01:01] Speaker 05:
I'd like to reserve two minutes for rebuttal.

[00:01:04] Speaker 05:
The evidence in this case was insufficient to establish that Mr. Dorman constructively possessed everything inside the address that was searched, 2317 Chester Street, or everything in specific locations at that address.

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He was not the owner or the lessee.

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He did not live there, though he stayed there often.

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He was not present when police found contraband inside the premises.

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And even though we weren't allowed to develop further, there were many people that had access to the house and access to the bedroom.

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To show constructive possession, the government was required to show both Mr. Dorman's knowledge and his ability to exercise dominion and control over the items recovered from the house.

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The government failed to show Mr. Dorman's knowledge of any of the items in the house, and specifically the PCP that was recovered in common areas of the house, hidden in common areas of the house, the gun that was hidden in the couch,

[00:02:06] Speaker 05:
and the bullets hidden in the bin in the bedroom associated with him and the gun that was found between the mattress and that.

[00:02:19] Speaker 01:
I would agree with you in the order that you listed those that the hardest case for your client is the gun between the mattress and the box spring.

[00:02:27] Speaker 01:
Isn't there evidence on which a reasonable jury could find beyond reasonable doubt that Mr. Dorman was the primary occupant of that room, that it was his room, um, and that he had slept there the night before and that there's enough indicia given that he slept on that bed and that gun was poking out between those, uh, to the bed that he had constructed possession of that gun?

[00:02:58] Speaker 01:
You know it's a very differential standard on appeal.

[00:03:02] Speaker 05:
It's correct that that's the most difficult piece of evidence.

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But the government still has failed to show knowledge.

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And I disagree that the evidence showed that he slept there the night before.

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His mother testified that the last time she had seen him was 6 or 7.

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She said she woke up at 6 a.m.

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that morning and left for work.

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No one had seen him at the house.

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There's no testimony that he was there.

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And his mother's testimony was that he did not live there, that he stayed there

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that he said there was some frequency.

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I know that she referred to it as his home base, but remember, Mr. Dorman had left.

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And he had one of two keys.

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He had one of the only two keys to the bedroom.

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Wasn't that in the evidence?

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There were two keys to the bedroom, and he had left.

[00:03:47] Speaker 05:
Yes, correct.

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But she also testified that the bedroom was never locked.

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In fact, the pictures depict the bedroom door open and propped open with items in front of it.

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She also testified that she had brought many items to the basement,

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because she had been doing renovations.

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And again, everyone in the house had access to the bedroom.

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There was no restriction on where people could go or sleep or stay or hide things.

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So there's still lacking

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evidence that he knew that he placed it there.

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We don't know when the gun or the bullets were placed in that bedroom.

[00:04:34] Speaker 01:
I thought his mother testified he was the only person who slept in that room.

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That was his room.

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I know that she referred to it as his room, and we don't dispute that he's the primary occupant of the room.

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But with other people having access to the room, he certainly didn't have exclusive control over the room.

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And again, there's no evidence, we don't know when, there's no evidence as to when the gun came to rest there.

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The officer also testified that although you could see the handle sticking out, they took a picture of that, in order to know that there was a gun there, they had to lift the mattress.

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So it's not something that, although part of it was sticking out, was immediately apparent to anyone.

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without evidence as to when it was placed there, when he was last there, and with evidence that many people have access to it, the government is still lacking.

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So just to be clear there, what evidence was there?

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Because I know there was evidence that lots of people were using the laundry room.

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Was there evidence that other people were going into the bedroom?

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No, there was no evidence that people were going into the bedroom, but no one was excluded from the bedroom.

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No one was excluded from any place.

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And the mother testified that there were things in the bedroom that she didn't recognize.

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What's obvious is that, again, we weren't allowed to develop

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who else had access to the house?

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The number of people.

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We do know that Harold Dorman Sr., Cleveland Hill, Cleveland Hill let two people into the house at one point.

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We know that there was Seth Jr., Seth Sr., and Mrs. Jennings herself.

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She had access.

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I mean, she had ownership of the entire house.

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So in that sense, she had just as much knowledge.

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If he has knowledge, she had just as much knowledge.

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I'm thinking of our cases, Dykes and Edelin.

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which involved someone who was the sole occupant of a bedroom.

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And I don't think we required there, in order to support an inference of awareness of the items in the room, that the room be consistently locked against all of their comers, but just that it be the person's room that wasn't also actively shared by others.

[00:07:22] Speaker 01:
And as I read the testimony here, Ms.

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Jennings did testify that this was his room.

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he cleaned and he and his girlfriend were the ones that cleaned it when it was cleaned and others there's no testimony that others were in and out of there as in contrary distinction I think as you point out to the testimony that there were several other individuals using the hometown rally I take the court's point but I think that there it's actually opposite sides of the same coin

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the court saying that there was no evidence that other people shared it.

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And I'm saying the government had to show that he exclusively controlled it.

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And we do know that he was not in exclusive control of the room.

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So with that uncertainty comes

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What I'm saying, not knowing when the gun is there, not knowing when he was last there, not having him present.

[00:08:25] Speaker 01:
He was there.

[00:08:26] Speaker 01:
I thought his mother testified he was there the night before when she went to sleep.

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At six or seven, he was there.

[00:08:32] Speaker 01:
So we do know that when he was last there, at least that he was there within 24 hours of the search.

[00:08:37] Speaker 05:
That's correct.

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But we don't know when the gun appeared there.

[00:08:41] Speaker 02:
Could you address that?

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Would you address the PCP by the laundry, the bottle by the laundry room?

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Yes.

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And you're against this to that?

[00:08:50] Speaker 05:
There's certainly no evidence of knowledge of the PCP by the laundry room.

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I mean, it is virtually hidden.

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The officer said that she did not see it even as she walked up.

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It's in a container that does not reveal itself as something that's immediately incriminating.

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It's the same with the PCP in the living room, which is in a very small vial hidden in a vase or behind a vase.

[00:09:14] Speaker 02:
But they didn't need that vial in the living room.

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I get your argument on the vial in the living room, but they didn't need that one to support.

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That one wouldn't even have supported the conviction given the amount.

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So the real focus

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for the conviction has to be the bottle that was by the laundry room.

[00:09:30] Speaker 05:
I respectfully disagree.

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I believe the expert said that you could use the smaller vials to dip cigarettes one at a time and that that could

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could be a distribution quantity.

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It's true that the larger quantity.

[00:09:46] Speaker 02:
The quantity in the vial, wasn't it?

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Was the quantity in the vial sufficient to support distribution just by itself?

[00:09:52] Speaker 05:
I believe it was a one ounce vial.

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Yes, I believe that's what the expert explained.

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It's true that the quantity down in the basement was larger.

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There's nothing linking him to PCP at all.

[00:10:10] Speaker 01:
What do you make of the so-called drug paraphernalia in the bedroom?

[00:10:14] Speaker 01:
I think the link that they're resting on is drug paraphernalia in plain view in an area over which he has domain and gun in view, an area over which he has domain, and both drug paraphernalia signals drugs and that guns and drugs go together.

[00:10:33] Speaker 05:
Well, first, to address the drug paraphernalia, the government did not, there's not testimony that that is drug paraphernalia, okay?

[00:10:42] Speaker 05:
That is, that comes from government exhibit 73, which is a picture of GLAD bags, and they are not Ziploc bags, they are open bags, which

[00:10:53] Speaker 05:
are different.

[00:10:54] Speaker 01:
I mean, I realize I'm speaking for my general knowledge, but... Liquid PCP in a fold-over bag, that's the question.

[00:11:00] Speaker 05:
Yes, and there's one gallon bag.

[00:11:03] Speaker 05:
There's also a silver device that the government says is a scale, but again, there was not testimony about this specific... these specific items.

[00:11:16] Speaker 05:
Were you aware of... We vigorously dispute that they are...

[00:11:20] Speaker 05:
that they are drug paraphernalia, but they are certainly not PCP drug paraphernalia.

[00:11:26] Speaker 05:
So they, again, don't link to the PCP outside of the bedroom, the PCP around the corner.

[00:11:35] Speaker 02:
You mentioned a couple times you weren't allowed to develop evidence on who else was going down to the laundry room.

[00:11:41] Speaker 02:
And can you just elaborate for me, because my understanding of the record is that the district court wanted you to specify a time frame.

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And that whenever you asked a question and then specified a time frame, the relevant time frame, around the year of the search or the months preceding the search, you were allowed to ask the question.

[00:12:03] Speaker 02:
And it was only when you didn't specify a time frame that the question was stricken.

[00:12:09] Speaker 02:
Am I misunderstanding the record?

[00:12:11] Speaker 05:
That's generally correct.

[00:12:15] Speaker 01:
We understand it wasn't you personally.

[00:12:19] Speaker 05:
I understand the question.

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The time

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First, I'd say the timeframe was not a reason to exclude the questions that were excluded.

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The government asked questions.

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There's only one timeframe in the case, and that's the timeframe surrounding the discovery of these items.

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The defense counsel asked, ma'am, did you ever know any other individuals to have access to your apartment?

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In other words,

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and the court cut him off immediately.

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Now, this is all after the initial objection by the government.

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And the majority of that objection was that finding out or eliciting testimony from Ms.

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Jennings about who else was present or who else had access was reverse 404B evidence when it's actually just defense evidence.

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I mean, it's true.

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The government prefaced it with, we don't know the time frame.

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I submit that understanding the time, there were questions that were asked where a time frame was not circumscribed around the question.

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But because the defense was able to identify who they were talking about, they were then able to ask the logical follow-up question, and when was that person there?

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Defense counsel

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with the example that I just gave, wasn't even able to identify people in order to place a time frame around those people.

[00:14:07] Speaker 05:
I mean, the court cut off, and that was a sui sponte objection.

[00:14:13] Speaker 05:
After this exchange between the government defense counsel, the initial objection, which I submit that time certainly was not relevant.

[00:14:28] Speaker 02:
Why do you say time was not relevant?

[00:14:30] Speaker 05:
I shouldn't say time was irrelevant.

[00:14:33] Speaker 05:
Time was relevant.

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But the government put on evidence and emphasized that whoever had the contraband in the house was comfortable in the house.

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And whether you were comfortable

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How you prove comfort in a house is through a pattern.

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It's through repeated steps.

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Do you walk to the refrigerator and open it?

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And that is not as dependent on an exact date, whether it's three days after everyone's arrested or three days before.

[00:15:07] Speaker 02:
Why don't think the court was that narrow in the time frame?

[00:15:09] Speaker 02:
It was just trying to say, like, the year or within months of this.

[00:15:14] Speaker 05:
Well, several times Mr. McDonough, Defense Counsel did start his questioning with a time frame and got into questioning.

[00:15:22] Speaker 05:
And this here is an example.

[00:15:24] Speaker 02:
So which point, can you tell me which page you're on?

[00:15:35] Speaker 05:
I believe it's 7-9.

[00:16:09] Speaker 02:
I'd rather just do it on rebuttal.

[00:16:11] Speaker 02:
That's fine.

[00:16:11] Speaker 02:
It's up to you.

[00:16:13] Speaker 05:
Well, I can tell you, on page 148 and 149, let's be a little more specific.

[00:16:19] Speaker 05:
In October 2013, actually, let's say between April and October 2013, did Seth Jr.

[00:16:24] Speaker 05:
have a key to the house?

[00:16:25] Speaker 05:
He had a key.

[00:16:26] Speaker 05:
He continues with questioning.

[00:16:28] Speaker 05:
It's clear that he's still talking about the same time period.

[00:16:32] Speaker 05:
But then, less than a page later, when he gets to 150,

[00:16:37] Speaker 02:
Well, that's because as you go down there, Seth Jr.

[00:16:40] Speaker 02:
stopped using the house after 2012.

[00:16:44] Speaker 02:
She agrees.

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That's why.

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That was a problem.

[00:16:47] Speaker 02:
And then we're switching to Seth Sr.

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before we get the objection that's sustained.

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Seth Jr., you start at the top of that page.

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Let's say he was there April, October 2013.

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Then we talk about Seth Junior.

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He was there until high school.

[00:17:01] Speaker 02:
When did he graduate?

[00:17:02] Speaker 02:
2012.

[00:17:03] Speaker 02:
And thereafter, did he use the house to do laundry still?

[00:17:06] Speaker 02:
Junior, yes.

[00:17:07] Speaker 02:
No.

[00:17:08] Speaker 02:
So he wasn't there after 2012.

[00:17:09] Speaker 02:
And then we start getting the questions about Seth Senior.

[00:17:12] Speaker 02:
Right.

[00:17:14] Speaker 05:
Right.

[00:17:20] Speaker 05:
It's still within the same time context.

[00:17:23] Speaker 05:
I would say time.

[00:17:25] Speaker 05:
if time is really that important then defense counsel should have it would have been the better practice to begin every question with during the time period in question this is in context we're not talking there's not confusion about all these different dates and times and like something we're covered here and something we're covered here there's only one time

[00:17:54] Speaker 05:
So I'd submit that it was an abusive discretion to limit defense counsel in this way when there was nothing ambiguous, confusing.

[00:18:10] Speaker 05:
Time was not even that relevant.

[00:18:13] Speaker 05:
And to come back to who feels comfortable in the house,

[00:18:19] Speaker 05:
There's no reason that the defense should not have been allowed to show who felt comfortable in the house.

[00:18:24] Speaker 05:
And there may be somebody who demonstrates the pattern even after the arrest in this case, even after October 13th, demonstrates a pattern of comfort in the house.

[00:18:40] Speaker 05:
that would undermine the government's theory that the only person who could have had this was Harold Dorman because he was the most comfortable.

[00:18:49] Speaker 05:
Well, if there is someone walking around in their underwear the day after the arrest, that would be highly relevant to show that that person was comfortable in the house.

[00:19:04] Speaker 05:
So my only point is, time is a red herring.

[00:19:07] Speaker 05:
Time was not a problem.

[00:19:10] Speaker 05:
And it was something very, very easily clarified, either on redirect, either through an additional question by the court.

[00:19:24] Speaker 05:
I'd submit that the reason for excluding this

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that there was no legitimate reason for excluding this testimony.

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And we don't even know how the defense counsel would have finished the question that the court cut him off without an objection from the government.

[00:20:02] Speaker 05:
And in a case such as this where

[00:20:11] Speaker 05:
The evidence is so circumstantial, and you have inference built upon inference to show a knowledge and possession where the defendant is not arrested inside the house.

[00:20:24] Speaker 05:
Our ability to show circumstances that call into question the circumstantial evidence that the government has presented

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is crucial.

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And any alternative hypothetical to guilt could make the difference in this case.

[00:20:42] Speaker 05:
And whether it's under a constitutional standard or a simple harmless error standard, there's no fair assurance that limiting cross-examination in this way.

[00:20:59] Speaker 02:
I just have one other fact question.

[00:21:01] Speaker 02:
Yeah.

[00:21:02] Speaker 02:
If you'll let me jump in.

[00:21:05] Speaker 02:
With respect to when Mr. Dorman called Ms.

[00:21:10] Speaker 02:
Jennings, at some point during the search, is there anything in the record that talks about when during the search that phone call happened, beginning, middle, end?

[00:21:28] Speaker 05:
How do you know?

[00:21:28] Speaker 05:
Sorry, there's not anything in the record that explains it.

[00:21:33] Speaker 02:
And she was outside the house when she made the phone call, is that correct?

[00:21:37] Speaker 02:
I thought I read that.

[00:21:38] Speaker 05:
It's not clear.

[00:21:39] Speaker 05:
I know at one point she testifies that she had to wait outside of the house during the search.

[00:21:49] Speaker 05:
But during the actual phone call with Mr. Dorman,

[00:21:53] Speaker 05:
it's simply not clear.

[00:21:55] Speaker 05:
Which really brings up, it's not clear what she knew at the time that she was speaking with Mr. Dorman.

[00:22:01] Speaker 05:
It's a very ambiguous statement, or the way the government has characterized it in the grand jury, that she laid him out is an ambiguous statement.

[00:22:17] Speaker 05:
We don't know what she laid him out for, what she knew, what she said.

[00:22:25] Speaker 05:
that his response, Ma, sorry, is also very ambiguous, because we don't know what he's sorry about.

[00:22:34] Speaker 05:
Sorry is generally an expression of remorse or sympathy for someone else's distress.

[00:22:40] Speaker 05:
It's not, I am responsible for everything that the police recovered in the house, which is how the government would have you characterize it.

[00:22:48] Speaker 05:
When Miss Jennings is actually asked what she thinks he means,

[00:22:52] Speaker 05:
She provides an explanation that she thinks he is sorry that she is upset, and he wants her to calm down.

[00:23:02] Speaker 05:
That's perfectly reasonable and logical.

[00:23:07] Speaker 05:
We are past the point of inference into pure speculation that this is an admission for everything that's in the House.

[00:23:16] Speaker 03:
All right, let's hear from the government.

[00:23:29] Speaker 04:
Good morning.

[00:23:30] Speaker 04:
May it please the court, James Ewing, for the United States.

[00:23:33] Speaker 04:
The government presented a strong case at this trial, and none of appellant's claims warrant reversal.

[00:23:38] Speaker 04:
Looking at the appellant's sufficiency claim first, three lines of evidence point to the fact that appellant constructively possessed the guns and drugs at issue in this case.

[00:23:47] Speaker 04:
First, as the court's questions pointed up, appellant was living in that basement bedroom.

[00:23:52] Speaker 04:
Second, the location of the contraband in the basement bedroom

[00:23:57] Speaker 04:
showed that appellant had the substantial voice, vis-a-vis the other occupants or people who had access to the house to that contraband.

[00:24:05] Speaker 01:
And third, if there was any doubt... Given the locational distinctions between the guns and the drugs, it would be helpful if you would say instead of contraband, which

[00:24:14] Speaker 01:
Which item you're talking about?

[00:24:17] Speaker 04:
Specifically, Your Honor, as to the locations of the gun and the main stash of the drugs that was in the basement, is what I'm referring to now.

[00:24:27] Speaker 04:
And third, if there were any doubt about whether a penalty had constructed possession over those drugs, his statements to his own mother cleared up that doubt.

[00:24:37] Speaker 04:
Looking first at the evidence that she- I just want to be clear.

[00:24:40] Speaker 03:
Those are the three prongs that you're relying on.

[00:24:44] Speaker 04:
Well, those are those are kind of the three groups of evidence that we believe show that he had a strong case.

[00:24:50] Speaker 03:
So we're trying to separate out each item.

[00:24:53] Speaker 03:
I thought that judge pillars.

[00:24:54] Speaker 04:
Yes, your honor.

[00:24:54] Speaker 04:
Well, we do believe that we do believe the evidence was strong as to all all the evidence in the house.

[00:24:59] Speaker 04:
If I can walk through it kind of one at a time looking at the first of all, the gun that was found underneath the mattress in the downstairs bedroom.

[00:25:07] Speaker 04:
That bedroom was a palance bedroom.

[00:25:09] Speaker 04:
There was a picture of him in his high school football uniform on the wall.

[00:25:12] Speaker 04:
His shoes were underneath the bed.

[00:25:14] Speaker 04:
He had court paperwork from his Pennsylvania case was right next to the bed with his name on it.

[00:25:19] Speaker 04:
That was his bedroom.

[00:25:20] Speaker 04:
His mother said that it was his home base, that he was the only person who lived down there, who stayed down there when she was home.

[00:25:27] Speaker 04:
So

[00:25:28] Speaker 04:
That's premise one.

[00:25:29] Speaker 04:
That was his bedroom.

[00:25:30] Speaker 04:
The evidence is very strong of that.

[00:25:32] Speaker 04:
You've got a gun underneath between the mattress and the box springs of the only bed in the bedroom.

[00:25:38] Speaker 04:
The handle is sticking out.

[00:25:40] Speaker 04:
So the evidence he's constructively possessing that gun is very strong.

[00:25:44] Speaker 04:
We look at cases like

[00:25:47] Speaker 04:
Morris and Jenkins and others that say that a person the jury's entitled to infer that people constructively possess the items in Their home or in their residence now we admit that and Jenkins and which Those are the only two that I cited for that for those purposes your honor that we would

[00:26:08] Speaker 04:
We would concede that other people had both lived in this house and had access to the house, but no one else lived in the basement bedroom.

[00:26:17] Speaker 04:
But we're not relying simply on the fact that that was his room.

[00:26:20] Speaker 04:
Obviously, for example, the main stash of PCP wasn't in the bedroom.

[00:26:24] Speaker 04:
But if you look at supplemental appendix page three, which is a diagram of the downstairs basement, and look at where that PCP was located.

[00:26:35] Speaker 04:
It was in the laundry room, right on the other side of the wall from Appellant's bed.

[00:26:42] Speaker 02:
Was this introduced in evidence at the trial?

[00:26:44] Speaker 04:
Yes, Your Honor, it was.

[00:26:46] Speaker 04:
I forget the government exhibit, but the diagrams at pages one, two, and three were the three levels of the house, and those were introduced at trial.

[00:26:58] Speaker 04:
The PCP was as close as it could possibly be to Appellant's bed and his bedroom without being in his bedroom.

[00:27:07] Speaker 03:
Well, the argument was he had to go out two doors before he could get to it.

[00:27:13] Speaker 04:
But I agree with that, Your Honor.

[00:27:15] Speaker 04:
He's got to go out of his bedroom.

[00:27:16] Speaker 04:
I mean, it's around granted.

[00:27:17] Speaker 04:
He can't reach through the wall.

[00:27:19] Speaker 04:
But I guess my point is that there are reasons why he wouldn't want this PCP in his bedroom.

[00:27:23] Speaker 04:
We have testimony from the FBI agent that PCP, and particularly this particular PCP, had a very strong chemical smell.

[00:27:31] Speaker 03:
And so lots of people use the washroom.

[00:27:34] Speaker 04:
Other people use the washing machine.

[00:27:36] Speaker 04:
That's correct, Your Honor.

[00:27:37] Speaker 04:
But it makes sense that he would have this main stash of the PCP that he doesn't want to have in his bedroom because it's got this strong chemical odor.

[00:27:49] Speaker 04:
He wants it close to him.

[00:27:51] Speaker 04:
He wants to be able to know when people are coming and going out of that

[00:27:56] Speaker 04:
out of that laundry room.

[00:27:57] Speaker 04:
He wants to have close access to it.

[00:27:59] Speaker 04:
We can hear.

[00:28:00] Speaker 04:
It's not stashed, for example.

[00:28:02] Speaker 02:
I don't know where all that's coming from, right?

[00:28:04] Speaker 02:
He doesn't even know how often he was staying in that room.

[00:28:07] Speaker 02:
So that seems to be a bit of an evidentiary list.

[00:28:12] Speaker 04:
Well, Your Honor, the evidence was that he was... Speculation.

[00:28:15] Speaker 04:
He was staying in the bedroom, you mean, Your Honor?

[00:28:17] Speaker 02:
You're acting like he was there guarding it all by the thing, and there isn't evidence that he was in that room day and night, listening for anybody to come near his PCP.

[00:28:27] Speaker 04:
You're saying in the, when you say that room, you're referring to this bedroom?

[00:28:29] Speaker 04:
Well, I mean, I agree there's not evidence that he was in there day and night, but there is evidence that... Well, you're just telling us the whole story about it.

[00:28:35] Speaker 02:
It was right there.

[00:28:36] Speaker 02:
We wanted to make sure nobody would come get to it and he could monitor whoever was coming to it, but there isn't any evidence that he was in the bedroom or even in the house with the frequency to monitor day in, day out, who was going to the laundry room, was there?

[00:28:47] Speaker 04:
I would respectfully disagree with that, Your Honor.

[00:28:50] Speaker 04:
What evidence?

[00:28:51] Speaker 04:
Well, his mother said that the majority of his clothes were down there, his shoes are there, the car is parked right outside.

[00:28:58] Speaker 04:
That day?

[00:28:59] Speaker 02:
The day before.

[00:29:00] Speaker 04:
Yes, and he was there the night before.

[00:29:02] Speaker 04:
I mean, the TV's still turned on.

[00:29:04] Speaker 04:
So this is not a situation where this is some... The TV in his bedroom?

[00:29:07] Speaker 04:
Yes, Your Honor, turned on the ESPN.

[00:29:10] Speaker 04:
And so this is not some situation where this is like,

[00:29:13] Speaker 04:
an abandoned bedroom.

[00:29:14] Speaker 02:
No, I get that.

[00:29:15] Speaker 02:
I don't think there's any question that he was there the night before.

[00:29:17] Speaker 02:
We don't know how long, but maybe a jury could recently infer overnight.

[00:29:21] Speaker 02:
I was just getting to your point about he was a guard dog for this PCP, but he wasn't there that day.

[00:29:29] Speaker 04:
Well, in the sense of it, the location of the PCP makes sense.

[00:29:34] Speaker 04:
I mean, it's as close as it can possibly be to his bed, to his bedroom, without being in his actual room.

[00:29:40] Speaker 02:
Other than that bottle of PCP,

[00:29:43] Speaker 02:
What evidence was there in the record that connected him to having anything to do with the drug PCP?

[00:29:52] Speaker 02:
He was being investigated for jewelry theft.

[00:29:55] Speaker 02:
There's nothing in his bedroom that was morally related to PCP.

[00:29:59] Speaker 02:
possession manufacturing distribution.

[00:30:02] Speaker 04:
Well, upstairs, Your Honor, there were 50 empty vials, empty one ounce glass bottles.

[00:30:07] Speaker 02:
Upstairs?

[00:30:07] Speaker 02:
Yes, Your Honor.

[00:30:09] Speaker 04:
Everybody was upstairs.

[00:30:11] Speaker 04:
That also makes sense.

[00:30:12] Speaker 02:
I'm just saying, is there anything specifically as to him that wouldn't apply equally to everybody else who was in the house regarding PCP?

[00:30:23] Speaker 04:
Well, I mean, we would argue that the location of the PCP downstairs.

[00:30:27] Speaker 02:
That's back to the right next to the wall.

[00:30:29] Speaker 04:
I mean, that coupled with, and again, I mean, we would argue that that fact, it flows from that upstairs.

[00:30:37] Speaker 03:
Dominion and control.

[00:30:39] Speaker 04:
Right, yes, that's exactly right, Your Honor.

[00:30:41] Speaker 03:
When everybody and it's mother-in-law is using the laundry room.

[00:30:48] Speaker 03:
And the upstairs.

[00:30:48] Speaker 03:
I mean, that's a funny place to put it.

[00:30:50] Speaker 04:
Well, just because they're using the laundry room doesn't necessarily mean that they are accessing that.

[00:30:58] Speaker 03:
If you look at the pictures... It doesn't mean they're accessing what?

[00:31:01] Speaker 04:
The PCP.

[00:31:02] Speaker 04:
It doesn't mean that they're accessing the PCP.

[00:31:05] Speaker 03:
The government has a very heavy burden on constructive possession.

[00:31:09] Speaker 03:
And that's a heavy burden when you have a lot of people in the same house.

[00:31:15] Speaker 03:
So it's not in his bedroom.

[00:31:16] Speaker 03:
You want us to say this is his exclusive bedroom, and you point to the evidence suggesting that.

[00:31:22] Speaker 03:
So he's put it in a common room.

[00:31:26] Speaker 04:
That's correct.

[00:31:27] Speaker 04:
Right around the corner from his bedroom, the next bedroom.

[00:31:29] Speaker 03:
If he goes out two doors.

[00:31:34] Speaker 03:
And that's enough for dominion and control?

[00:31:36] Speaker 04:
Well, I guess into the third part of my argument, which is his statements to his mother over the phone that was discussed with my cousin counsel a little bit.

[00:31:44] Speaker 03:
She's furious that the police are in there because she knows what's going on upstairs.

[00:31:51] Speaker 03:
And she doesn't want to get in trouble and thrown out of the house like that lady we read about in the newspaper whose son was doing drugs in the house.

[00:31:58] Speaker 03:
Now, this son is a jewel thief.

[00:32:01] Speaker 03:
Well, what is the connection to PCP?

[00:32:04] Speaker 04:
I've absolutely no doubt that his mother was furious.

[00:32:12] Speaker 04:
But with respect to my friend, his arguments regarding that grand jury testimony that's at pages 32 through 38 of the supplemental appendix,

[00:32:21] Speaker 04:
are a good closing argument about what that grand jury testimony meant.

[00:32:25] Speaker 04:
But that's not the standard of review at this case.

[00:32:27] Speaker 04:
At this point, it's the light most favorable to the government.

[00:32:31] Speaker 01:
Could a reasonable jury find beyond a reasonable doubt when we view the evidence in the light most favorable to the government?

[00:32:35] Speaker 01:
Correct.

[00:32:36] Speaker 01:
So there is that.

[00:32:36] Speaker 01:
I mean, yes, we're doing it very differentially toward the verdict and toward the government.

[00:32:41] Speaker 01:
But there is the overlay standard of proof that's quite high.

[00:32:46] Speaker 03:
Well, my point, though, excuse me.

[00:32:49] Speaker 04:
I'm sorry, Your Honor.

[00:32:50] Speaker 03:
Elements of the offense.

[00:32:52] Speaker 04:
Correct.

[00:32:53] Speaker 04:
But I guess my point is, if you read that grand jury testimony, a reasonable reading of that

[00:33:02] Speaker 04:
And we would submit the most reasonable reading of that grand jury testimony is, he's saying he's sorry for the guns and drugs that were found in the house.

[00:33:10] Speaker 03:
She doesn't say that.

[00:33:11] Speaker 03:
She doesn't say that he said that.

[00:33:13] Speaker 03:
I mean, that's the problem we have there.

[00:33:15] Speaker 03:
You want it as a confession to everything

[00:33:19] Speaker 03:
that the police found in the house.

[00:33:23] Speaker 01:
We don't even know what she said to him.

[00:33:27] Speaker 01:
I'm smiling because I've worked so hard with my own children to say, you need to say you're sorry when someone's upset at you.

[00:33:34] Speaker 01:
It is not an admission of guilt.

[00:33:37] Speaker 01:
It is a recognition of the person's distress, and you go from there.

[00:33:43] Speaker 01:
There's a lot of ambiguity around the word, I'm sorry, but I think the bigger problem with this record from your perspective is we don't know

[00:33:53] Speaker 01:
what she said to him.

[00:33:55] Speaker 01:
She could have said, the police up and down the house, they're pulling stuff out.

[00:34:00] Speaker 01:
This doesn't look good.

[00:34:01] Speaker 01:
This is going to get me in a lot of trouble.

[00:34:03] Speaker 01:
I'm really angry.

[00:34:04] Speaker 01:
She could have said that.

[00:34:06] Speaker 01:
And he said, Ma, Ma, I'm sorry.

[00:34:07] Speaker 01:
Or she could have said, and there's drugs, and there's guns, and you are in trouble with the law, and you did this.

[00:34:18] Speaker 01:
And he doesn't deny, and he says, I'm sorry.

[00:34:20] Speaker 01:
And obviously, the latter scenario is more what you're characterizing.

[00:34:24] Speaker 01:
Not clear the record supports that.

[00:34:26] Speaker 04:
Two responses, Your Honor.

[00:34:27] Speaker 04:
First, the word everything was used in that grand jury transcript.

[00:34:31] Speaker 04:
The question that was asked to her in the grand jury was, did you kind of lay him out for everything that was found in the house?

[00:34:38] Speaker 04:
And she said, of course I did.

[00:34:41] Speaker 02:
Can I back up there?

[00:34:43] Speaker 02:
I'm very confused about something.

[00:34:45] Speaker 02:
She was outside the house during the search.

[00:34:48] Speaker 02:
We have no evidence at one point, am I right, that there's no evidence as to what point in the search, beginning, middle, end, this call happened?

[00:34:58] Speaker 02:
Is there any evidence?

[00:35:00] Speaker 04:
Other than the context of the grand jury transcript.

[00:35:03] Speaker 02:
What does it tell about the context?

[00:35:04] Speaker 02:
Is the timing of this phone call with respect to the search?

[00:35:09] Speaker 04:
Well, in the sense of, the question posed to her was, did you lay him out for everything that was found in the house?

[00:35:15] Speaker 02:
And if nothing's been found yet, our answer would have been no, because... Are the police in the habit of reporting to people what they're finding as they find it?

[00:35:30] Speaker 04:
I don't know that, Your Honor.

[00:35:31] Speaker 02:
No, there's been no evidence whatsoever that the police went and said, okay, we finished our search, here's everything we found, and then she gets the call.

[00:35:39] Speaker 04:
Well, I mean, I guess her... I'd be surprised if that's the police practice, to be honest.

[00:35:44] Speaker 04:
The evidence of that is her response in the grand jury.

[00:35:46] Speaker 04:
I mean, she could have said, you know, they didn't really tell me what they found.

[00:35:50] Speaker 04:
I'm just upset because there's police in the house.

[00:35:52] Speaker 04:
And there's a little snippet below that initial kind of response, and I believe this is on page 38 of the supplemental appendix, the last page of the grand jury transcript.

[00:36:04] Speaker 04:
where after she says, yeah, I laid him out for everything, everything that was found in the house.

[00:36:09] Speaker 02:
So we only got these little snippets here from the grand jury.

[00:36:14] Speaker 04:
We don't have the full?

[00:36:15] Speaker 04:
I believe the last, that's what was admitted into evidence.

[00:36:17] Speaker 04:
That's why.

[00:36:17] Speaker 04:
I believe it's the last page, page 38.

[00:36:21] Speaker 04:
And then he said, the grand juror prosecutor asked her, well, did he say anything that was about the things that were found in the house?

[00:36:31] Speaker 04:
And she says, no.

[00:36:32] Speaker 04:
She doesn't say.

[00:36:35] Speaker 04:
You know, yeah, he said they were Seth Juniors or... Was he arrested before the search or after the search?

[00:36:41] Speaker 04:
He was arrested.

[00:36:42] Speaker 04:
He was already arrested.

[00:36:42] Speaker 04:
He was arrested on an unrelated matter up in Maryland.

[00:36:45] Speaker 04:
So he was arrested while the search was going on.

[00:36:50] Speaker 04:
So, you know, he just... And then she's asking again.

[00:36:53] Speaker 04:
She just... He just said, I'm sorry.

[00:36:55] Speaker 04:
And the answer is yes.

[00:36:56] Speaker 04:
So what's he apologizing for?

[00:36:58] Speaker 04:
I mean, he's apologizing for what?

[00:37:02] Speaker 02:
He's been arrested for what?

[00:37:04] Speaker 04:
I believe he was arrested on an unrelated Maryland warrant.

[00:37:07] Speaker 02:
For?

[00:37:08] Speaker 04:
I don't remember.

[00:37:09] Speaker 04:
I don't believe that's in the record.

[00:37:11] Speaker 02:
PCP?

[00:37:11] Speaker 04:
I think it was.

[00:37:12] Speaker 04:
I want to say no.

[00:37:13] Speaker 04:
I believe it was a parole violation or something along those lines in Maryland.

[00:37:18] Speaker 02:
Did he say anything about the stuff that was found there?

[00:37:20] Speaker 02:
No.

[00:37:21] Speaker 02:
The only thing, did he say he was sorry?

[00:37:23] Speaker 02:
Yes.

[00:37:23] Speaker 04:
So what's that?

[00:37:24] Speaker 02:
He's just been arrested.

[00:37:25] Speaker 02:
He's calling mom.

[00:37:26] Speaker 02:
I think he better say sorry.

[00:37:28] Speaker 04:
But that exchange doesn't make any sense.

[00:37:32] Speaker 03:
I mean, the most logical- The previous testimony is, and all the items that are down in the basement are his items, is that correct?

[00:37:41] Speaker 03:
Most of them.

[00:37:44] Speaker 04:
Right, and she said that she identified his shoes that were down there, his clothes.

[00:37:49] Speaker 04:
She said that was his home base.

[00:37:51] Speaker 04:
So, you know, views that particularly... So, he's living in the basement.

[00:37:55] Speaker 03:
He has a substantial voice, that was your phrase, which is different from Dominion in Control, and the statement to his mother.

[00:38:04] Speaker 03:
That makes your strong case for all the contraband.

[00:38:08] Speaker 04:
Yes, Your Honor.

[00:38:08] Speaker 04:
With the substantial voice piece, we're looking at really cases like Gomez and Staten that talk about where you live there, but other people also live there, too.

[00:38:18] Speaker 04:
So that's the concept they were looking at there.

[00:38:20] Speaker 02:
In your brief, you had raised the point that there was a gun, and so if there's guns, we can assume drugs.

[00:38:26] Speaker 02:
And you're not mentioning that here.

[00:38:27] Speaker 02:
Are you abandoning that?

[00:38:29] Speaker 04:
No, we are relying on that as well, Your Honor.

[00:38:30] Speaker 04:
In cases like McClendon and Booker, this court has said guns and drugs go together.

[00:38:34] Speaker 04:
Guns are essentially paraphernalia of a drug distribution.

[00:38:37] Speaker 02:
Really?

[00:38:38] Speaker 04:
Absolutely.

[00:38:39] Speaker 02:
I am shocked.

[00:38:40] Speaker 02:
That's the position of the United States government?

[00:38:43] Speaker 02:
That if someone has a gun, which they have a Second Amendment right to do, we can infer that they have drugs in another room?

[00:38:50] Speaker 02:
That's the position of the government?

[00:38:52] Speaker 04:
We're not saying that that's all you need, but this court has said over and over.

[00:38:56] Speaker 02:
But it's evidence.

[00:38:57] Speaker 02:
It's relevant evidence.

[00:38:58] Speaker 02:
Absolutely.

[00:38:59] Speaker 02:
I get when you've got drugs, maybe you can tie them to the gun, but I'm shocked that possessing a gun

[00:39:07] Speaker 02:
allows the evidence is relevant evidence that you also possess drugs in another room.

[00:39:13] Speaker 04:
Drug dealers can't call the police when they get robbed.

[00:39:15] Speaker 01:
We understand the implication that if you have contraband that that raises an inference of you know varying strength depending on the rest of the circumstances that you might have guns to protect yourself.

[00:39:30] Speaker 01:
I think the difficulty that Judge Millett is pointing out is

[00:39:35] Speaker 01:
a third of the people in this country own guns.

[00:39:38] Speaker 01:
And does that mean that when any contraband is found in their home,

[00:39:44] Speaker 01:
that is shared with other people, that the existence of the gun makes it more likely that contraband is theirs, as distinct from a non-gun owner home where contraband is found.

[00:39:58] Speaker 01:
And I guess the question is we're trying to probe the logic of that.

[00:40:01] Speaker 01:
And I think you're right that there's some suggestion in the case law that the inference runs both ways.

[00:40:08] Speaker 01:
But as a logical matter, it doesn't actually seem to be

[00:40:13] Speaker 04:
uh... symmetrical well i i i believe it's the alexander case that says that that alexander's the case it says you know in a joint occupancy situation you need i think it says something more and the some one of the something more is that alexander uh... sites to his connection to a gun and so that i i think that if you look at mcclendon you look at booker and there's several cases that we've said in our brief it does not go both ways alexander was about drugs or was just about the possession of the gun that was found near him

[00:40:43] Speaker 04:
I believe it was about the possession of drugs and what you need something more to go to that.

[00:40:52] Speaker 04:
But I guess just looking at this court's cases, we do believe that it flows both ways.

[00:40:56] Speaker 03:
I know.

[00:40:56] Speaker 03:
Most of our cases are dealing with drug conspiracies.

[00:41:01] Speaker 03:
And that's where this expert testimony comes in.

[00:41:04] Speaker 03:
And now you're telling us it morphs over into anybody who has a gun and we find some contraband in your home.

[00:41:12] Speaker 03:
Well, I mean, I guess starting point.

[00:41:17] Speaker 04:
This was found.

[00:41:17] Speaker 04:
This was anywhere between 44,000 and $8,000 depending on how you counted of PCP in the laundry room.

[00:41:24] Speaker 04:
And so the point is, is that

[00:41:26] Speaker 04:
drug dealers cannot call the police when when they get robbed so they arm themselves to protect their drugstash.

[00:41:34] Speaker 01:
Neither do jewelry thieves.

[00:41:36] Speaker 01:
So the reason for the warrant in this case is they suspect this individual of having robbed a jewelry store and it just seems

[00:41:45] Speaker 01:
You know, so do people who fear intruders, people who live in dangerous neighborhoods.

[00:41:48] Speaker 01:
So the notion that there is enough of a logical inference to use that, it's just a little harder to run it the other way.

[00:41:57] Speaker 04:
Well, I just want to make clear, we're not relying on that.

[00:42:00] Speaker 04:
We just see that as a... Well, you argued it in the brief, didn't you?

[00:42:02] Speaker 04:
Right, but we're just seeing it as... Is it relevant evidence or isn't?

[00:42:05] Speaker 04:
We do believe it's relevant, but it's part of the overall picture.

[00:42:08] Speaker 03:
But I thought that's why you were focusing on the three items you did, and you didn't mention the drugs and guns.

[00:42:15] Speaker 04:
Well, it wasn't my intention to leave that out.

[00:42:17] Speaker 04:
I mean, we do stand by that, and this court has said that multiple times.

[00:42:21] Speaker 03:
All right, anything more?

[00:42:23] Speaker 04:
I would just... Yes, Your Honor, if I just may note that briefly.

[00:42:27] Speaker 04:
All the action in the Confrontation Clause aspect of the appellant's claim takes place in about eight or nine pages from page 147 to 155 of the July 9th transcript.

[00:42:39] Speaker 04:
And as Judge Mallett's questions pointed out,

[00:42:42] Speaker 04:
This was a situation where the only thing that the district court was asking for was a time frame.

[00:42:49] Speaker 04:
The district court did not preclude appellant from asking any questions that were pegged to a particular time frame.

[00:42:58] Speaker 04:
And the perfect colloquy on pages 154 and 155 point that up.

[00:43:03] Speaker 04:
Question, ma'am, if you know, did you ever know Mr. Dorman to have visitors there at the house?

[00:43:07] Speaker 04:
Objection.

[00:43:08] Speaker 04:
District Court says, you have to be more specific than that.

[00:43:11] Speaker 04:
Question, between April and October of 2013, and there's an objection again.

[00:43:15] Speaker 04:
And that was overruled.

[00:43:17] Speaker 04:
And the District Court said, no, no, you can answer that.

[00:43:20] Speaker 04:
Now, the April to October time frame of 2013, Appellant's trial counsel came up with that himself.

[00:43:27] Speaker 04:
But that time frame makes sense, because it's the six or seven months leading up to the search warrant.

[00:43:32] Speaker 04:
So there was never anything that was precluded that.

[00:43:35] Speaker 02:
I guess on page 150 of the transcript,

[00:43:39] Speaker 02:
We have the stuff about Seth Junior, Seth Senior.

[00:43:43] Speaker 02:
And then Mr. McDonough tries a new line.

[00:43:46] Speaker 02:
Ma'am, did you ever know any other individuals have access to your apartment?

[00:43:50] Speaker 02:
In other words, did.

[00:43:52] Speaker 02:
Without an objection, we get sustained.

[00:43:57] Speaker 04:
Yeah, I don't know the context for that, Your Honor.

[00:43:58] Speaker 02:
I mean, I think that goes... Well, the context is page 150, and it's after these other things.

[00:44:02] Speaker 02:
And all he says is, did you know any other individuals have access to your apartment?

[00:44:06] Speaker 02:
Pretty critical to the defense in this case.

[00:44:09] Speaker 02:
Pretty critical defense evidence.

[00:44:11] Speaker 02:
In other words, so we hadn't even finished asking the question.

[00:44:13] Speaker 02:
We don't know that it's not going to have a time frame that would be specific.

[00:44:16] Speaker 02:
And we get sustained from the district court.

[00:44:20] Speaker 02:
How is that possibly justifiable, given how critical this was, this kind of evidence was to the defense case?

[00:44:26] Speaker 04:
Well, because, Your Honor, they had just, they had a bench conference on this where the district court, and that was a couple, I believe it was page one.

[00:44:34] Speaker 00:
A couple pages before, yeah.

[00:44:35] Speaker 04:
Yeah, and the district court's saying, you know, you're asking very vague questions.

[00:44:38] Speaker 04:
You have to, you know, you have to be more specific, or I'm going to tell that you're... What's vague about, did other, have other people had access to your apartment?

[00:44:46] Speaker 04:
When?

[00:44:47] Speaker 01:
I mean, your question is that to preserve that, they really need to come back and say, given that council should have known that the timeliness vagueness, the vagueness of the timing was what was concerned, council should have come back and said, excuse me, but in the time period between April and October, did any other people

[00:45:07] Speaker 01:
that in your view?

[00:45:08] Speaker 04:
Well, right, Your Honor, and that would have been allowed.

[00:45:11] Speaker 04:
I mean, and that's that was the it's obvious from the from the record that that was the district court's concern was that, you know, was it access to the House 30 years ago or was it access to the House last week when it's a way to respond to the notion that the timing has been set in a series of questions pursuing it?

[00:45:32] Speaker 04:
the opening leading up to that.

[00:45:33] Speaker 04:
Yeah.

[00:45:34] Speaker 04:
Well, I mean, I guess we would go back to the point where that the district court never precluded any question that had a time frame attached to it.

[00:45:43] Speaker 03:
So he didn't get to finish the question.

[00:45:47] Speaker 04:
Counsel didn't get to finish the question.

[00:45:48] Speaker 03:
Well, that's the problem.

[00:45:49] Speaker 03:
There was no objection.

[00:45:51] Speaker 04:
I guess he was he was he was free to ask the understand and count phones.

[00:45:56] Speaker 03:
Council said, you know, well, he should have asked the question, putting the time frame up front.

[00:46:01] Speaker 03:
But suppose he was putting the time frame at the end of the sentence.

[00:46:07] Speaker 04:
I suppose that's possible, Your Honor, but there's nothing, nothing precluding Appellant's counsel from asking that very same question with the time frame in the front, just to clarify.

[00:46:14] Speaker 02:
Well, we just had sustain sustained, so one can imagine.

[00:46:18] Speaker 02:
Not wanting to alienate the jury.

[00:46:20] Speaker 02:
Yes.

[00:46:20] Speaker 02:
Not going for the third strike.

[00:46:21] Speaker 04:
Well, OK, but then just a few pages later, he asked a time frame question.

[00:46:25] Speaker 04:
He gets another objection, and that's overruled.

[00:46:28] Speaker 04:
So now he knows, OK, now I know that this is what the district court's concern is.

[00:46:35] Speaker 04:
it appellant was did a did a good job of getting a lot of people into this house i mean we've got harold senior these are people that had keys harold senior seth senior seth junior mr hill mom those are the people trying to show it's like grand central station

[00:46:51] Speaker 04:
Well, he did show.

[00:46:54] Speaker 04:
So on the aspect, on the colloquy in pages 154 and 155 where he's asking about friends or guests, the ultimate answer to that was, yes, he had guests.

[00:47:06] Speaker 04:
How many?

[00:47:07] Speaker 04:
When?

[00:47:08] Speaker 04:
I mean, so that's a pretty favorable response.

[00:47:14] Speaker 02:
So he got to get a lot of evidence in that there were an awful lot of people moving through this house.

[00:47:18] Speaker 04:
He was not precluded from putting evidence on that other people had access to the house.

[00:47:23] Speaker 04:
Notwithstanding that, we think that the evidence was sufficient that it was appellant who had constructive possession of the guns and drugs in the house.

[00:47:34] Speaker 01:
Mr. Ewing, it's not your position that that Tropicana bottle in the laundry room was in plain view, is it?

[00:47:40] Speaker 04:
No, Your Honor.

[00:47:43] Speaker 01:
Do you have another case other than Alexander, which didn't involve the question about guns implying drug possession?

[00:47:49] Speaker 01:
There's just no drug charge in that case.

[00:47:51] Speaker 01:
I wonder if you have another case with the vector going that way from the guns to the drugs.

[00:47:59] Speaker 04:
I think Booker was going in the other direction, if I'm remembering it correctly.

[00:48:02] Speaker 04:
Booker was going from the drug to the gun.

[00:48:05] Speaker 04:
I don't remember which way that it was flowing in McClendon, but in McClendon, this court did say guns are tools of the drug trade.

[00:48:16] Speaker 01:
Right, right.

[00:48:18] Speaker 04:
I can't point you to a specific case where the evidence is flowing the other way.

[00:48:22] Speaker 01:
And you understand the difficulty.

[00:48:23] Speaker 04:
Well, I understand, but I think that

[00:48:26] Speaker 04:
logically that it would flow in both directions, particularly when you've got a stash of PCP of this amount.

[00:48:32] Speaker 02:
Because I don't get the logic.

[00:48:33] Speaker 02:
Because the logic starts from I'm possessing something illegal and of value that I have to protect on my own.

[00:48:41] Speaker 02:
That's why we have the vector going toward the gun.

[00:48:45] Speaker 02:
But I'm possessing a gun.

[00:48:48] Speaker 04:
But why?

[00:48:48] Speaker 04:
Why are you possessing a gun?

[00:48:50] Speaker 04:
Because you got $8,000 worth of PCP.

[00:48:51] Speaker 02:
Well, the lawful reasons that people do.

[00:48:53] Speaker 01:
They're afraid.

[00:48:54] Speaker 02:
Lots of people have lawful reasons for having guns.

[00:48:56] Speaker 02:
Sure.

[00:48:57] Speaker 04:
I mean, we're not saying that people don't possess guns lawfully.

[00:48:59] Speaker 02:
We're saying that it makes... There's no starting point for an inference of criminality just because you have a gun.

[00:49:06] Speaker 02:
Would you agree with that?

[00:49:11] Speaker 04:
Well, I guess all we're saying is that

[00:49:14] Speaker 04:
I guess the answer that it depends.

[00:49:16] Speaker 04:
I mean, is that we're saying that you this is a gun that you own lawfully and is registered and all that.

[00:49:21] Speaker 04:
I mean, if it's in close proximity to a large stash of drugs, then yes, that could go to whether you're also constructively possessing those drugs.

[00:49:31] Speaker 03:
All right.

[00:49:31] Speaker 03:
Anything further?

[00:49:32] Speaker 04:
No, Your Honor.

[00:49:33] Speaker 04:
We would ask this court affirm the judgment of the district court.

[00:49:35] Speaker 03:
Thank you.

[00:49:35] Speaker 03:
Thank you.

[00:49:37] Speaker 03:
Council for a couple minutes.

[00:49:41] Speaker 05:
I'd just like to say, I understand that historically there are lots of cases that say there's a relationship between guns and drugs.

[00:49:50] Speaker 05:
But the rationale for finding that relationship is just as the government said, that the gun is to protect the drugs because the drugs are valuable and the person protecting them doesn't have the benefit of the law to call.

[00:50:05] Speaker 05:
One big problem that the government has in this case is that Harold Dorman is arrested an hour and a half before the search, meaning or suggesting that neither the gun nor the drugs are his because nothing's being protected.

[00:50:25] Speaker 05:
It's left in the house alone.

[00:50:27] Speaker 05:
There's no greater likelihood that someone's going to come and try to rob him only when he's there.

[00:50:37] Speaker 05:
The greater likelihood is that the house would be burglarized when the person protecting the stuff is not there.

[00:50:54] Speaker 05:
The fact that Mr. Dorman is not present suggests someone else was.

[00:50:58] Speaker 05:
The government said that the TV was still on.

[00:51:03] Speaker 05:
The rationale just does not hold up that the gun in the bedroom, and remember, we're only inferring that Mr. Dorman possessed the gun because of his primary relationship with the bedroom.

[00:51:16] Speaker 05:
Others still do have access to the bedroom.

[00:51:20] Speaker 05:
That's why that point is very important.

[00:51:22] Speaker 02:
Do we know where he was when he was arrested?

[00:51:24] Speaker 05:
He was in Maryland.

[00:51:25] Speaker 05:
And he was arrested for a robbery in Maryland.

[00:51:31] Speaker 02:
And this house is in D.C.?

[00:51:32] Speaker 05:
This house is in D.C.

[00:51:34] Speaker 01:
It's on the record whether he had a gun on him when he was arrested in Maryland.

[00:51:39] Speaker 05:
It is not in the record.

[00:51:41] Speaker 05:
There's no indication that he had a gun in Maryland.

[00:51:47] Speaker 02:
One thing I was curious about is that on the stairs going down to the laundry room was a box that said Glock, and I think it was a Glock gun that was found in his bedroom, is that correct?

[00:51:57] Speaker 02:
No.

[00:51:58] Speaker 01:
I think the Glock was the one on the sofa, no?

[00:52:00] Speaker 02:
The sofa one?

[00:52:00] Speaker 02:
Okay.

[00:52:01] Speaker 05:
I am not sure.

[00:52:03] Speaker 05:
I'm not sure, but the bedroom gun

[00:52:09] Speaker 05:
was not a Glock.

[00:52:11] Speaker 02:
OK.

[00:52:11] Speaker 02:
All right.

[00:52:12] Speaker 02:
So then there was evidence of the other.

[00:52:13] Speaker 02:
We know there was one gun, whatever it was, found under the sofa.

[00:52:16] Speaker 02:
And then there was this box.

[00:52:17] Speaker 02:
In the common areas, there were evidence of guns.

[00:52:18] Speaker 05:
I remember that the officer testified that the box did not match anything in the house.

[00:52:23] Speaker 02:
Oh, OK.

[00:52:23] Speaker 05:
So I can't tell you whether it was a Glock by a certain manufacturer or whether it was exact.

[00:52:32] Speaker 05:
The government asked, with regard to the statement, what's Mr. Dorman apologizing for?

[00:52:38] Speaker 05:
And that's the problem.

[00:52:39] Speaker 05:
That's the problem with Maasari.

[00:52:42] Speaker 05:
The government, there's no answer to that.

[00:52:44] Speaker 05:
We don't know what he's apologizing for.

[00:52:47] Speaker 05:
So that ambiguity leaves the statement proving nothing for the government.

[00:52:53] Speaker 02:
I'd also note... Did the police usually tell the person whose house is being searched everything they found at the end?

[00:52:59] Speaker 05:
The practice that I've seen, they don't.

[00:53:02] Speaker 03:
I've had cases where... Let me ask you about when they execute a search warrant.

[00:53:11] Speaker 03:
When the police execute a search warrant, don't they, do they give the owner a list of what's being taken?

[00:53:22] Speaker 05:
They are supposed to.

[00:53:24] Speaker 05:
What I was about to say is

[00:53:27] Speaker 05:
in practice, I have not had a client receive that list before.

[00:53:34] Speaker 03:
He's not the owner.

[00:53:36] Speaker 03:
I mean, this client.

[00:53:38] Speaker 05:
I've not had a case where we got the list from any place other than the government in discovery.

[00:53:46] Speaker 05:
That's all I can say.

[00:53:51] Speaker 05:
But with regard to, again, with regard to the statement,

[00:53:55] Speaker 05:
to the extent that Ms.

[00:53:59] Speaker 05:
Jennings' statement is ambiguous.

[00:54:01] Speaker 05:
The government, in the grand jury, one, remember this is a leading statement, and they could have asked other questions as to what she said.

[00:54:10] Speaker 05:
At trial, when she was asked very close to what she said, she said, I said I was upset.

[00:54:17] Speaker 05:
So that's the closest we know, but it's still ambiguous, and I'd ask the court to reject that as an admission for everything in the House.

[00:54:26] Speaker 03:
All right, thank you.

[00:54:27] Speaker 03:
We'll take the case under advisement.