[00:00:01] Speaker 02:
May it please the court.

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

[00:00:03] Speaker 02:
May it please the court.

[00:00:03] Speaker 02:
My name is Howard Pincus from the Federal Public Defender, and I represent Jonathan Sanchez.

[00:00:09] Speaker 02:
Mr. Sanchez was convicted of possessing a gun that his girlfriend owned and that was in her purse at her apartment when he was arrested there.

[00:00:18] Speaker 02:
Although there was evidence that he handled the gun in the past, there was no evidence of when.

[00:00:23] Speaker 02:
And his DNA was only 14% of the mixture on the gun, with 84% being from a woman.

[00:00:29] Speaker 02:
The proof was insufficient that Mr. Sanchez possessed the gun at or about the time charging the indictment, and his conviction must be reversed.

[00:00:39] Speaker 02:
The only conceivable basis for upholding Mr. Sanchez's conviction is constructive possession.

[00:00:45] Speaker 02:
He was in the apartment where the gun was found, but there was insufficient proof that he had the necessary access to the gun or intent to control it at that time.

[00:00:54] Speaker 03:
And where does that come from?

[00:00:56] Speaker 03:
The gun was in an open purse.

[00:00:57] Speaker 03:
He was in the house.

[00:00:58] Speaker 03:
Why would he not be able to have access to the gun?

[00:01:02] Speaker 02:
Well, the purse is the most important fact here.

[00:01:05] Speaker 02:
The gun was in a place that's uniquely associated with Ms.

[00:01:09] Speaker 02:
Flores, his girlfriend.

[00:01:11] Speaker 02:
It's not a place that he would be presumed to have access to or the ability to control what was inside of it.

[00:01:17] Speaker 03:
Thanks for the statement, but explain to me why that's true.

[00:01:21] Speaker 03:
What is the uniqueness about a kitchen table?

[00:01:24] Speaker 02:
Well, it's not the kitchen table.

[00:01:25] Speaker 02:
It's the fact that the gun is inside of her purse.

[00:01:28] Speaker 03:
And it's an open purse.

[00:01:29] Speaker 03:
So what?

[00:01:30] Speaker 02:
Well, the testimony is that the evidence was that the purse was open barely enough so that you could see the top of the gun.

[00:01:39] Speaker 02:
It was still her purse.

[00:01:40] Speaker 03:
I've got a brown paper bag, and the brown paper bag is slightly open.

[00:01:44] Speaker 03:
How is that different than a purse?

[00:01:46] Speaker 03:
What's the difference?

[00:01:47] Speaker 02:
Well, because the brown paper bag isn't uniquely associated with a particular person.

[00:01:53] Speaker 02:
her purse.

[00:01:54] Speaker 02:
There's no dispute about that.

[00:01:55] Speaker 02:
And it's not a place where he would be presumed to have access to it or the ability to control what was inside it.

[00:02:01] Speaker 02:
Any more than if it were in a bedside table in a bedroom and it was her table, we would not assume that he had access to it just because it was in the room.

[00:02:13] Speaker 02:
This court has looked to the connection of the particular person to

[00:02:20] Speaker 02:
the gun itself and that is based on where the gun is found and what connection he has to it.

[00:02:28] Speaker 03:
What's your best case for the premise that if we would not presume that he has access to that open

[00:02:38] Speaker 03:
Now, because we're not talking about somebody who's got a door, a room, an apartment, and that door has a lock on it.

[00:02:45] Speaker 03:
We're not talking about a situation where somebody has a case and that case is locked.

[00:02:49] Speaker 03:
We're talking about a bag sitting on a table, and that bag is open.

[00:02:55] Speaker 03:
Why couldn't I just put the gun in it?

[00:02:57] Speaker 03:
I mean, what would have stopped me from putting the gun in it?

[00:03:00] Speaker 02:
Well, of course, that's possible that that happened.

[00:03:02] Speaker 02:
That's what the government tries to argue on actual possession, that

[00:03:08] Speaker 02:
the gun was put in the purse during the time when the police were at the door.

[00:03:13] Speaker 02:
We know that can't support actual possession because they admit that they have no idea who put it in the purse, if it even was put in the purse.

[00:03:21] Speaker 02:
There's no evidence to support that.

[00:03:22] Speaker 02:
It's pure speculation.

[00:03:24] Speaker 02:
All we have is the police knock at the door.

[00:03:26] Speaker 02:
It's not open immediately.

[00:03:29] Speaker 02:
They see what the officer at the front of the line says looks to be a person looking through the peephole.

[00:03:34] Speaker 02:
Other officers say there was some movement behind the blinds.

[00:03:38] Speaker 02:
It's a very small area.

[00:03:41] Speaker 02:
The table is right next to the door.

[00:03:44] Speaker 02:
It doesn't show that the gun was put in there at that point.

[00:03:47] Speaker 02:
So that's just pure speculation.

[00:03:49] Speaker 02:
If the gun had been put in there, it might add to access or the ability to control, because then the gun presumably would have been out.

[00:03:58] Speaker 02:
We have no evidence of that.

[00:03:59] Speaker 02:
We can't use speculation to justify Mr. Sanchez's conviction.

[00:04:02] Speaker 03:
I think you're right that the only real basis here, and I want to ask you a follow-up question on that, is constructive possession.

[00:04:11] Speaker 03:
Let me ask the follow-up question first, and then I'll get back to the line of questioning on constructive possession.

[00:04:17] Speaker 03:
Is actual possession actually at issue here at all?

[00:04:22] Speaker 03:
And I say that, and I'm going to ask the prosecution this too, because I have a real question as to whether the jury even had actual possession before it as a theory.

[00:04:32] Speaker 03:
to hold the defendant guilty.

[00:04:34] Speaker 03:
The instructions has, by a misnomer, I think, and it's a 10-circuit pattern instruction, admittedly, which is a problem, but it says at the top, actual or constructive possession, it only talks about constructive possession.

[00:04:46] Speaker 03:
The government argued before the jury, constructive possession didn't talk about actual possession.

[00:04:52] Speaker 03:
So did the jury ever even consider actual possession?

[00:04:56] Speaker 02:
Well, I don't think under the instruction they did.

[00:04:57] Speaker 02:
The government did make some reference, I believe, in its rebuttal summation to actual

[00:05:02] Speaker 02:
But there's just no evidence of that here.

[00:05:05] Speaker 03:
Well, then let's move on to constructive possession.

[00:05:08] Speaker 03:
And as it relates to constructive possession, why would it not be the case that when a gun is in a purse, the purse isn't locked.

[00:05:18] Speaker 03:
It's on a table.

[00:05:19] Speaker 03:
They knocked on the door, there wasn't immediate entry into the house.

[00:05:24] Speaker 03:
We may not be able to know that the defendant, we can't as a matter of reasonable doubt say he put it in there at the time, but the reality is his DNA is on it.

[00:05:37] Speaker 03:
It's in an open purse.

[00:05:39] Speaker 03:
Why could one not say that he has constructive possession over that firearm?

[00:05:45] Speaker 02:
Let's start with the DNA.

[00:05:46] Speaker 02:
The DNA is

[00:05:48] Speaker 02:
14% of a DNA mixture, 84% of which was from a single woman, presumably Ms.

[00:05:55] Speaker 02:
Flores, because it was her gun in her purse in her apartment.

[00:05:59] Speaker 02:
So we know that he was just a very minor contributor to the DNA.

[00:06:04] Speaker 02:
It was handler DNA, though, right?

[00:06:06] Speaker 02:
Well, handler just means there was an effort to distinguish handler and touch.

[00:06:10] Speaker 02:
It just means it was different than just putting your hand briefly on a table.

[00:06:14] Speaker 02:
And why does that matter?

[00:06:16] Speaker 02:
Because we don't know when

[00:06:18] Speaker 02:
he may have touched, when he touched the gun, when he handled the gun.

[00:06:22] Speaker 02:
It has to be somewhere near in time to the honor about day charging indictment.

[00:06:28] Speaker 02:
And the fact, yes, there is evidence that he handled the gun at some point.

[00:06:34] Speaker 02:
And that can be circumstantial evidence to support access or control.

[00:06:39] Speaker 02:
But it still has to be linked in time.

[00:06:42] Speaker 02:
And there's nothing here that would do it.

[00:06:43] Speaker 02:
If he were the major contributor,

[00:06:46] Speaker 02:
then it would be reasonable to assume that he had handled it either predominantly or recently.

[00:06:52] Speaker 02:
And in fact, that was the testimony at pages 251 to 252 of the record of the defense expert, who cited a study where when two people drive a car, the major profile will typically be the person who handled the steering wheel more recently or predominantly.

[00:07:11] Speaker 02:
The major contributor in this case was Ms.

[00:07:15] Speaker 02:
Flores.

[00:07:16] Speaker 02:
So you can't take from his minor profile.

[00:07:20] Speaker 02:
It shows he handled the gun at some point.

[00:07:23] Speaker 02:
But you can't use that to prove that he handled it close in time to the date charged.

[00:07:29] Speaker 02:
And that's what matters here.

[00:07:30] Speaker 02:
That's the crime he was charged with.

[00:07:32] Speaker 03:
Can I hit the pause button for a quick second?

[00:07:35] Speaker 03:
Sure.

[00:07:35] Speaker 03:
I understand that as it relates to actual possession, that time matters.

[00:07:41] Speaker 03:
Because what we need to determine is on or about the time that he was charged with this offense, he actually possessed that firearm.

[00:07:48] Speaker 03:
Well, constructive possession.

[00:07:52] Speaker 03:
Three weeks before that event, I was fingering that gun.

[00:07:57] Speaker 03:
Okay.

[00:07:58] Speaker 03:
So I know the gun, I've touched it, I've handled it.

[00:08:02] Speaker 03:
That day, the gun is sitting on a table in a purse that I have access to, the gun's loaded.

[00:08:10] Speaker 03:
and I'm in that house, why isn't that constructive possession?

[00:08:14] Speaker 02:
Well, I think that could be actual possession, because that would be in or about that date.

[00:08:18] Speaker 03:
Oh, no.

[00:08:18] Speaker 03:
I'm talking about constructive possession.

[00:08:20] Speaker 02:
It could also use to support constructive possession if we showed it was close in time like that.

[00:08:24] Speaker 02:
But we have no evidence of that.

[00:08:26] Speaker 02:
What we have is, at some point in the past, we have no idea when he handled the gun.

[00:08:32] Speaker 02:
And we have the gun in a place that is Ms.

[00:08:36] Speaker 02:
Flores's,

[00:08:37] Speaker 02:
private space.

[00:08:39] Speaker 03:
It's not a public place.

[00:08:41] Speaker 03:
Let me frame it this way then.

[00:08:42] Speaker 03:
You pick whatever period of time you want that will take it beyond the scope of actual possession.

[00:08:49] Speaker 03:
I thought three weeks would do it.

[00:08:51] Speaker 03:
You choose whatever period you want.

[00:08:53] Speaker 03:
Let's assume that two months ago he was fingering that gun.

[00:08:58] Speaker 03:
And what I would infer from that is he knows the gun, he's had the gun, he's held the gun.

[00:09:05] Speaker 03:
Okay, so we know that happened, right?

[00:09:09] Speaker 03:
The gun is sitting in an open purse where he is, the gun is loaded.

[00:09:14] Speaker 03:
We know at some point he has touched that gun and he has touched it beyond just a finger touch.

[00:09:21] Speaker 03:
Why isn't that enough for constructive possession?

[00:09:24] Speaker 02:
Because we know that, yes, it does show that at some point he had the access.

[00:09:30] Speaker 02:
that he had the ability to control it by handling it, by moving it around.

[00:09:33] Speaker 03:
Why didn't he have the access?

[00:09:34] Speaker 03:
Because it's an open purse, next to him, he's in close proximity to it, and irrespective of whether he put the gun in right then, which is the point I'm getting at, that's different from actual possession, where it would matter whether he put it in there, irrespective of whether he put it in right then, he's touched the gun, he knows the gun, and the gun is in that purse where he can get it without unlocking anything, he can get the purse, gun,

[00:10:00] Speaker 03:
And the gun's loaded.

[00:10:01] Speaker 03:
Why doesn't that matter for constructive possession, the conceivable basis that you talked about?

[00:10:06] Speaker 02:
Well, first of all, just factually, it was not next to him.

[00:10:11] Speaker 02:
He was upstairs when the police entered.

[00:10:14] Speaker 02:
The gun was on the first floor in the purse.

[00:10:17] Speaker 02:
And the most important fact, again, is just that it's in her purse, which means it's been put in a place that is personal to her.

[00:10:28] Speaker 02:
Is it possible that Mr. Sanchez put it there?

[00:10:32] Speaker 02:
Yes.

[00:10:33] Speaker 02:
Do we know who put it there for sure?

[00:10:35] Speaker 02:
No.

[00:10:36] Speaker 02:
But the usual assumption would be that what's in a woman's purse is her property, not somebody else's.

[00:10:44] Speaker 02:
And it's not something that somebody else would be expected to have the ability to access to, to go in and look at, to control.

[00:10:51] Speaker 02:
And that's what we have to have.

[00:10:53] Speaker 02:
We need more than a possibility of guilt here.

[00:10:57] Speaker 03:
We need proof beyond reasonable doubt.

[00:10:58] Speaker 03:
Thank you for clarifying today.

[00:11:00] Speaker 03:
No, no, I'm very serious.

[00:11:02] Speaker 03:
What you viewed as being the most important fact, which is the purse and access to the purse, give me your best case to say that there would be open object now, open object, open purse, something associated with a woman or anybody or in some way associated with somebody

[00:11:23] Speaker 03:
that would work for you in this case.

[00:11:25] Speaker 03:
Because frankly, it is not intuitive to me that just because it's her purse and if it's open, that somehow or other it is so associated with her that we would not presume he would have access to it.

[00:11:38] Speaker 03:
It doesn't naturally flow for me, so give me a case that tells me I'm wrong.

[00:11:41] Speaker 03:
I don't know that I have a case from this court that says that.

[00:11:44] Speaker 02:
Give me a case from any court.

[00:11:47] Speaker 02:
I don't know that I have a case that looks at a specific place that's unique to a person and says that precludes access or control by somebody else.

[00:11:58] Speaker 02:
This court did say in Bedford, in Dicta, something actually contrary, which is if there was a computer bag near a bed that was shared, the bedroom was shared by

[00:12:11] Speaker 02:
a man and his girlfriend.

[00:12:12] Speaker 02:
And the gun was in an open computer bag.

[00:12:16] Speaker 02:
And that's what this court was considering, the access or control to that computer bag.

[00:12:22] Speaker 02:
The court, in dicta, on the issue of control and not access, said we could, if it were the purse, of course, a jury might well be able to find that he had access or control of it.

[00:12:39] Speaker 02:
That was not what was an issue in the case.

[00:12:43] Speaker 02:
And the fact of whose person it is and the nature of a purse is what should drive this case.

[00:12:53] Speaker 02:
Like I said, I don't have a particular case.

[00:12:54] Speaker 02:
The only case that I can think of, I think it's Kelowna.

[00:13:00] Speaker 02:
I don't think it's Ledford, but I think it's Kelowna where the gun was in the husband's dresser.

[00:13:10] Speaker 02:
a nightstand.

[00:13:11] Speaker 02:
And that court looked to that to connect him to it.

[00:13:13] Speaker 02:
It doesn't mean that if it was in the wife's nightstand that it wouldn't.

[00:13:17] Speaker 02:
But that's what this court has looked for, some connection of the person to an area that he controls.

[00:13:23] Speaker 02:
And that's not this case.

[00:13:26] Speaker 02:
This case involves a place that his girlfriend controls.

[00:13:32] Speaker 02:
So we'd ask the court to vacate his conviction as based on insufficient evidence or a man with instructions to dismiss the indictment.

[00:13:39] Speaker 02:
And I'll reserve the rest of my time for rebuttal.

[00:13:41] Speaker 02:
Thank you.

[00:13:44] Speaker 01:
May it please the court, counsel?

[00:13:46] Speaker 01:
James Braun on behalf of the United States.

[00:13:52] Speaker 01:
As we have argued in our brief, the evidence in this case supports a conviction under either theory of actual possession or constructive possession.

[00:14:01] Speaker 03:
Did the jury hear actual possession?

[00:14:04] Speaker 03:
They received no law on actual possession.

[00:14:08] Speaker 03:
Why would that even have been before the jury?

[00:14:11] Speaker 01:
So instruction number eight talks about actual or constructive possession.

[00:14:15] Speaker 03:
Does it really?

[00:14:17] Speaker 03:
Its heading is actual.

[00:14:18] Speaker 03:
And then it goes on to talk about constructive possession.

[00:14:21] Speaker 01:
Right.

[00:14:21] Speaker 01:
It defines constructive possession by saying a person who, although not in actual possession, knowingly has the power.

[00:14:30] Speaker 01:
Guess is that the instruction assumes the jury knows what actual possession means, that if someone has something in their hand, they're in actual possession of it.

[00:14:39] Speaker 01:
And so that doesn't require an additional instruction defining what actual possession is.

[00:14:45] Speaker 01:
Whereas constructions- I think we have cases that talk about what actual possession is.

[00:14:48] Speaker 03:
So it's not necessarily intuitive what actual possession means.

[00:14:51] Speaker 01:
There certainly are cases that define what actual possession is.

[00:14:53] Speaker 01:
But I think most rational people would

[00:14:57] Speaker 01:
assume that if I'm holding this cup, I'm in actual possession of the cup.

[00:15:00] Speaker 01:
If I'm not, construction possession, that might be a little harder to understand the nuances of.

[00:15:05] Speaker 01:
And obviously, there's even more case law on constructive possession and little having to redefine it.

[00:15:11] Speaker 01:
And so a jury might need a more specific instruction on that.

[00:15:16] Speaker 01:
But it was also argued during closing argument

[00:15:20] Speaker 01:
even though this isn't a case of the defendant being in actual possession when the officers went into the house, he was in actual possession at some point or there was sufficient evidence that he was in actual possession at some point on the date charged.

[00:15:32] Speaker 03:
So it's your position that when we consider and decide this case that we need to do something with

[00:15:40] Speaker 03:
Well, we need to consider whether actual possession would be a viable theory.

[00:15:45] Speaker 03:
I mean, we could find possession on constructive grounds.

[00:15:48] Speaker 03:
But in other words, it's in play.

[00:15:51] Speaker 01:
Yes, we believe it's in play.

[00:15:52] Speaker 01:
But we also submit that the more straightforward path is the path followed by this court in Samora.

[00:16:00] Speaker 01:
And that's focusing on constructive possession, because we believe that is the stronger theory.

[00:16:06] Speaker 01:
and that there is sufficient evidence to support the defendant's conviction under that theory.

[00:16:12] Speaker 01:
And just to address, Judge Holmes, your point about if there was evidence that the defendant had handled the gun two months before and then on the date charged had knowledge and access to the gun because it's in an open purse on a table, that would be sufficient.

[00:16:32] Speaker 01:
And Benford supports that proposition.

[00:16:36] Speaker 01:
Benford specifically states at page 1020 through 1021 that while evidence that the defendant actually handled the firearm outside the indictment period does not suffice to show actual possession, it may provide circumstantial evidence of the ability and intent to exercise control over the firearm necessary to establish constructive possession.

[00:16:59] Speaker 01:
Where do you get intent?

[00:17:01] Speaker 01:
that the intent is also shown by his DNA evidence being on the firearm, that that shows that he has knowledge of it, access to it, and the intent to exercise dominion and control over it, because he's done so in the past.

[00:17:15] Speaker 01:
And that's what makes this case similar to Samora, is that in Samora, the court talked about the defendant being the primary DNA sample, because that showed that he

[00:17:31] Speaker 01:
control the firearm, that he handled the firearm.

[00:17:34] Speaker 01:
And here, that evidence was established not by showing that he was the primary contributor of the DNA, but by actual testimony that where the DNA was found on the gun indicates handler DNA, that he had handled the gun.

[00:17:46] Speaker 01:
So we proved the same thing by two different means.

[00:17:50] Speaker 01:
But we did put on affirmative evidence that he had handled the gun.

[00:17:54] Speaker 01:
And so therefore, under Benford and under Samora, that DNA evidence is what provides the necessary nexus, because when

[00:18:01] Speaker 01:
In a constructive possession case, when a defendant is in on premises that are jointly occupied, then the government has to show a nexus between the defendant and the firearm.

[00:18:11] Speaker 01:
And that's what we do through the DNA evidence.

[00:18:15] Speaker 03:
What is your view or take on the defendant's argument that the purse was uniquely associated with, I think it was the girlfriend, and consequently that cuts against

[00:18:31] Speaker 03:
the notion of constructive possession and access.

[00:18:34] Speaker 03:
Not only do I want your take, but if you have a case that supports your position on it, I'd appreciate knowing what that is.

[00:18:41] Speaker 01:
Yes, sir.

[00:18:42] Speaker 01:
So two things.

[00:18:44] Speaker 01:
First is, it would be one thing if the purse was in his girlfriend's sock drawer, zipped up.

[00:18:52] Speaker 01:
That would be a place that is unique to her and would indicate that he didn't necessarily have access to it.

[00:18:57] Speaker 01:
Now, other evidence could show that he did.

[00:18:59] Speaker 01:
said something that indicated he did.

[00:19:02] Speaker 01:
But here, where it's on a kitchen table, unzipped, where you can see the gun in there, and we know there's been movement in the house, it's accessible to anyone in that apartment.

[00:19:15] Speaker 01:
And so he did have access to it.

[00:19:17] Speaker 01:
It's not like there was some force field around it saying, this is her purse.

[00:19:20] Speaker 01:
You can't touch it.

[00:19:21] Speaker 03:
And I think I may have mangled the exact language, but I think the defendant said,

[00:19:26] Speaker 03:
that it would be presumed not to be a place that the defendant would have access, the purse, the open purse.

[00:19:35] Speaker 03:
What's your take on that?

[00:19:36] Speaker 03:
And do you think there's any legal foundation to that?

[00:19:40] Speaker 03:
In other words, it's on the table.

[00:19:41] Speaker 03:
We all acknowledge that.

[00:19:42] Speaker 03:
It's open, although the defendant would say not wide open.

[00:19:47] Speaker 03:
It's open.

[00:19:49] Speaker 03:
But it's presumed to be a place that the defendant would not have access because it's her purse.

[00:19:56] Speaker 01:
We don't believe there's any basis in the law for applying that kind of presumption.

[00:20:00] Speaker 01:
That would be a case by case factual determination for a jury to make.

[00:20:06] Speaker 01:
If there was evidence, again, that it was in her sock drawer, if there was evidence that it was in a safe where only she had the code, then the jury could make that determination.

[00:20:15] Speaker 01:
Or the court could say, as a matter of law, there's insufficient evidence to prove he had access to it where he didn't.

[00:20:20] Speaker 01:
It's indisputable he didn't have access to the safe, say.

[00:20:24] Speaker 01:
But that's not this case.

[00:20:25] Speaker 01:
And there's no basis for applying a presumption that just because it's her purse that he doesn't have access to it.

[00:20:31] Speaker 01:
He clearly did have physical access to it where it's on a table and it's unzipped.

[00:20:36] Speaker 01:
But we also believe that this is somewhat of a red herring because

[00:20:41] Speaker 01:
The evidence indicated that's not where it's normally stored.

[00:20:43] Speaker 01:
It's not like it was always in the purse, and then there's a question of does he have access or not.

[00:20:47] Speaker 01:
The evidence supported the reasonable inference, just as the district court made in its order denying the motion for a judgment of acquittal, that it had just been placed there, that it was there haphazardly.

[00:20:58] Speaker 01:
And so that during the commotion, after the officers knock and announce, and you've got three minutes where there is movement downstairs, that somebody's putting that gun in that purse.

[00:21:07] Speaker 01:
So that's not where it normally is.

[00:21:09] Speaker 01:
It's somewhere else.

[00:21:10] Speaker 01:
And why would they put it in her purse?

[00:21:12] Speaker 01:
To distance it from him, which indicates that it was probably even more accessible to him before it was put into the purse.

[00:21:19] Speaker 01:
And the idea would have been put it in the purse, and we can say, it's not my gun.

[00:21:24] Speaker 01:
It's not my purse.

[00:21:25] Speaker 01:
And that's exactly the red herring that the reasonable inference is that they intended.

[00:21:33] Speaker 00:
Counsel, let me ask you this question.

[00:21:35] Speaker 00:
In looking at the briefs,

[00:21:37] Speaker 00:
and listening to both counsels today, it appears to me that the identical evidence was used by the government to prove both physical possession and constructive possession.

[00:21:50] Speaker 00:
Am I incorrect?

[00:21:51] Speaker 01:
I think that's correct.

[00:21:53] Speaker 01:
We can point to different pieces of evidence for each theory, but overall, we do believe the evidence points to both.

[00:22:00] Speaker 00:
Well, in light of the questioning you've been asked today, do you back away from your physical position now because of the lack of being able to show a reasonable time?

[00:22:12] Speaker 01:
No, Your Honor, because we do believe that a reasonable inference from the evidence where you do have the movement

[00:22:18] Speaker 01:
the apartment after the police knock and announce that a reasonable inference is that he's the one who would have put the gun into the purse to distance himself from it, because it's not a place where a reasonable person would think that she would store it in that manner, with the barrel visible.

[00:22:37] Speaker 01:
The inference was the barrel was out, not necessarily the barrel opening, but the barrel, so that it was haphazard, not as if she had done it.

[00:22:45] Speaker 01:
And it's also, without a concealed carry permit,

[00:22:48] Speaker 01:
not a place that you would imagine she would normally store to carry around outside of the house.

[00:22:55] Speaker 01:
And so a reasonable inference is that he's the one who put it there to distance himself from it.

[00:23:00] Speaker 01:
That may not be the only inference, but it's a reasonable inference.

[00:23:03] Speaker 01:
And it's one that the district court drew in its order, again, denying the motion for a judgment of acquittal, where it found both actual and constructive possession.

[00:23:12] Speaker 01:
And so where you have the DNA evidence, you have the movement in the apartment, you have the location of it being haphazardly placed into a purse, a small hand purse, that that does indicate that he's the one who put it there.

[00:23:26] Speaker 01:
And so he would have been necessarily in actual possession on the day.

[00:23:30] Speaker 01:
And then, of course, the fingerprint evidence or his statement about the fingerprint.

[00:23:34] Speaker 01:
And the point there is that most people would presume

[00:23:40] Speaker 01:
that DNA evidence is hardier than fingerprint evidence as far as being smudged.

[00:23:45] Speaker 01:
And that if you admit, as the defendant did, that his fingerprints might be on the gun, that that would indicate a more recent touching of the gun.

[00:23:54] Speaker 01:
Because if in the meantime his girlfriend's been handling it for weeks or months, the idea would be that his fingerprints would have been smudged off it or rubbed off it in the course of her handling it.

[00:24:06] Speaker 01:
If he thought his fingerprints were going to be on there, that would indicate a more recent position, actual position.

[00:24:11] Speaker 00:
Well, if you say if he thought, in your briefing, you make a lot out of the fact that not only was there DNA evidence, but that he indicated to one of the officers or somebody that he had handled the gun, as I recall.

[00:24:28] Speaker 01:
And I don't think it was that specific.

[00:24:29] Speaker 01:
I think the inference is that he had handled it because he said his DNA and his fingerprints might be on it.

[00:24:36] Speaker 00:
Well, that's my point.

[00:24:38] Speaker 00:
But you're not relying on that evidence here in front of us.

[00:24:42] Speaker 01:
We are.

[00:24:43] Speaker 01:
We certainly are relying on the fact that he admitted

[00:24:47] Speaker 01:
that his DNA and fingerprints might be on the gun because that shows his knowledge.

[00:24:52] Speaker 01:
It shows that he essentially admits that he had handled it, but not in so many words.

[00:24:57] Speaker 01:
But that is certainly the reasonable inference.

[00:25:00] Speaker 01:
And it also shows a recency because of his admission that his fingerprints might be on it.

[00:25:06] Speaker 03:
Was there any evidence about recency of fingerprints and DNA and which one expires and which one doesn't?

[00:25:14] Speaker 03:
You said that a reasonable person could presume

[00:25:17] Speaker 03:
I'm sorry, I think I'm reasonable.

[00:25:18] Speaker 03:
I wouldn't presume anything.

[00:25:20] Speaker 03:
I mean, I don't know, and I wouldn't make any assumptions about that.

[00:25:24] Speaker 03:
Why would anybody?

[00:25:26] Speaker 01:
And no, there was no evidence about fingerprints versus DNA.

[00:25:31] Speaker 01:
This would just be from common knowledge that fingerprints smudge easily, and that it's very common to have fingerprints that are unusable because they've been smudged.

[00:25:42] Speaker 01:
And so by him saying his fingerprints might be on it,

[00:25:47] Speaker 01:
a reasonable inference would be that that shows more recent handling.

[00:25:52] Speaker 01:
But again, under Benford, even outside of the time frame of the charge, his DNA being on the firearm is circumstantial evidence that he had the ability to exercise dominion control over that firearm.

[00:26:12] Speaker 01:
And then coupled with the facts

[00:26:14] Speaker 01:
On the date of his arrest, that indicates that on that day, he had constructive possession of the firearm under Samora.

[00:26:26] Speaker 01:
And unless the court has any additional questions, that's all I have.

[00:26:30] Speaker 01:
Thank you.

[00:26:39] Speaker 03:
Round him up to 115, please.

[00:26:44] Speaker 02:
Thank you, Your Honor.

[00:26:47] Speaker 02:
First on the case I mentioned in the initial argument, Ledford is referred to in Benford as the case where the gun was in the dresser of the husband.

[00:26:59] Speaker 02:
And that's at page 1015 of Benford.

[00:27:03] Speaker 02:
We here do not have any idea when his handling was.

[00:27:07] Speaker 02:
The talk has been whether it was two months, but it could have been eight months, two years.

[00:27:12] Speaker 02:
We just have no way of knowing on this record.

[00:27:14] Speaker 02:
And that's what we need.

[00:27:15] Speaker 02:
And usually what we look for in the constructive possession context is a connection between the defendant and the contraband or the place where the contraband is.

[00:27:25] Speaker 02:
And that's what's missing here.

[00:27:26] Speaker 02:
We have only something that is not specific as to time and that the minor profile aspect of this DNA suggests is not recent.

[00:27:35] Speaker 02:
or predominant.

[00:27:36] Speaker 03:
You heard opposing counsel's reference to Benford, and that seemed reasonable to me that as it relates to constructive possession, we're not talking about whether he touched it in the moment.

[00:27:47] Speaker 03:
That in other words, it is probative that at some point he handled it, and then in that particular moment, he had access to it in support of constructive possession, not actual possession.

[00:27:59] Speaker 02:
Absolutely.

[00:28:00] Speaker 02:
And the fact that he handled it at some point is circumstantial evidence of intent

[00:28:04] Speaker 02:
or access and the ability to control.

[00:28:08] Speaker 02:
But opposing counsel also said, with what else there is here.

[00:28:12] Speaker 02:
And the point is that there is nothing else here.

[00:28:14] Speaker 02:
We have only something that is presumed that, for all we know, is very dated about his handling of it.

[00:28:21] Speaker 02:
And they can't support, beyond a reasonable doubt, his constructive possession at the time charging indictment.

[00:28:28] Speaker 02:
And that's what matters.

[00:28:29] Speaker 03:
Thank you, counsel.

[00:28:29] Speaker 02:
Thank you.

[00:28:30] Speaker 03:
The case is submitted.

[00:28:31] Speaker 03:
Thank you for the argument.