concurring:
I join Judge Walker’s opinion for the Court in its entirety. However, due to the tortured history of this case, I think it appropriate to add a few words separately.
Initially, I voted that the evidence presented at Martinez’s trial was insufficient to support his conviction for possessing cocaine with intent to distribute. On appeal, the Government did not take issue with Martinez’s claim that he was a narcotics addict (which was the basis of Martinez’s argument that the evidence found on him was as consistent with his personal use of narcotics as with an intent to distribute). Nor did the Government in its brief on appeal make mention of Detective Gardiner’s testimony that Martinez had indicated, following his arrest, that he was not a “user.” The Government simply argued that the evidence found in Martinez’s possession — the 3)6 grams of cocaine, the small quantity of “cut,” the one-gram handheld scale, and the gun — was sufficient to demonstrate his intent to distribute.1
*1045Because the case was presented to us exclusively on these terms — that even if one were to assume that Martinez was a user, the objects in his possession demonstrated his intent to distribute — I originally felt that we had no choice but to find that the evidence at trial was insufficient as a matter of law to prove, beyond a reasonable doubt, that Martinez possessed cocaine with the intent to distribute. I reached this conclusion because it seemed to me that essentially all of the “evidence” found in Martinez’s possession was precisely in equipoise on the issue of whether Martinez was a seller dr nothing more than a user.
As Judge Walker’s opinion for the Court notes, the small quantity of drugs on Martinez’s person was by itself insufficient to prove an intent to distribute. It no more indicated that the possessor was a seller than that-he had the drugs simply for his own use. Similarly, though one might speculate that the small hand-held scale and the “cut” possessed by Martinez showed an intent to distribute, the defense brought out that having these items was consistent with personal use of narcotics. And the Government presented no evidence at all to show that the possession of a scale this small or of this amount of “cut” was in fact any more, indicative of dealing than of using. In other words, on the assumption that Martinez was a user, the scale and the “cut” were also in equipoise, because there was no evidence presented at trial on the basis of which one could conclude that they made it more likely that Martinez was a seller, rather than just a user. Of course, as noted by both the original opinions from this panel, case law has held that the possession of a gun can provide some grounds for a conclusion that the possessor has an intent to distribute. But a gun, though considered to be indicative of an intent to distribute, also admits of many other explanations. And I was not convinced that, with all the other evidence in equipoise, the gun by itself could come close to supporting a verdict that Martinez was a seller and not simply a user, given that the burden of proof requires evidence sufficient for the jury to find guilt beyond a reasonable doubt.
Of course, our holdings state that we must view the evidence “collectively” and “in its totality” when assessing a sufficiency challenge. See, e.g., United States v. Mariani, 725 F.2d 862, 865-66 (2d Cir.1984). Clearly the combination of many small pieces of valid evidence — each of which could be established “more probably than not” — might, in its sum, amount to proof of an essential element of a crime beyond a reasonable doubt. However, the aggregation of many small pieces of data — which are not evidence at all because every one is in equipoise — can never establish proof beyond a reasonable doubt. The adding of zeros to zeros, no matter how many, cannot amount to more than zero.
This does not mean that a jury would necessarily be precluded from finding that a small scale or a small amount of “cut,” in the hands of a user, constituted proof of selling. Had the Government, for example, put forth evidence that such a scale or such an amount of “cut” was more likely possessed by dealers than by simple users, then these items would have been valid proof of an intent to distribute and their sum could have supported the conclusion that their possessor was a seller. But in this case the Government presented no such evidence, and thus made no showing that these items leaned more toward dealing than toward using. In the absence of such evidence, neither juries nor judges can be permitted to speculate on whether the items are more consistent with selling or dealing than with personal use.
Of course; when facts are well-known, notice can be taken by juries (and judges), and the Government, like any other party, need not demonstrate that which is obvious. The Government does not have to present expert testimony showing that the possession of 100 kilograms of cocaine is more consistent with selling than using. See, e.g., United States v. Brown, 921 F.2d 785, 792 (8th Cir.1990) (noting that a jury can reasonably infer an intent to distribute “solely from possession of a large quantity of drugs”). But on close and contested factual issues, the Government must always prove its points through evidence presented at trial.
The reason for requiring such a valid evi-dentiary basis for crucial conclusions is quite *1046simple and is especially apt in cases such as this where the Government faces no particular difficulties in presenting the evidence.2 If the Government does not bring in needed evidence because such evidence does not exist, then any conviction would likely be incorrect. If, instead, the Government presents such evidence, putting the Government to its proof subjects that proof to appropriate cross-examination and possible impeachment.
In sum, then, all the items found in Martinez’s possession — except for the gun, which appeared to me at that point to have only very limited evidentiary value in showing an intent to distribute — seemed to be equally likely to support the conclusion that Martinez was no more than a user as that he was a seller. As a result, and on the assumption that Martinez was a drug user, I could not hold, as the Government urged on appeal, that there was sufficient evidence to allow the jury to find beyond a reasonable doubt that Martinez had an intent to distribute the grams of cocaine found in his possession. 1, therefore, initially concurred in Judge Newman’s opinion to reverse Martinez’s conviction.
Judge Walker, in setting forth his vote to affirm, first pointed out that there was evidence presented at Martinez’s trial which could support the proposition that Martinez was not a user: allegedly, Martinez, when asked by Detective Gardiner upon his arrest whether he had used any drugs, had indicated that he did not. Though the Government had not mentioned this part of Martinez’s trial to us on appeal, it was anything but an insignificant detail. For only on the assumption that Martinez was a user was the “evidence” in equipoise between selling and using. If it was shown instead that Martinez was not a user, then the overwhelming explanation for the items in his possession had to be that he was a seller. With the exception of the gun, the evidentiary significance of all the items Martinez possessed turned exclusively on the “conditional fact” of whether Martinez was a user. And though the Government’s presentation to us did not take issue with Martinez’s claim that he was a user, Judge Walker properly noted that this “conditional fact” was actually in dispute based on the evidence presented at trial.
This development, however, did not immediately alter my vote to reverse. In reaffirming his vote to overturn Martinez’s conviction, Judge Newman stressed that the Government’s closing arguments to the jury did not mention Detective Gardiner’s testimony suggesting that Martinez was not a user. It thus appeared that the Government had presented this case to the jury as it had presented it to us on appeal: even if Martinez was thought to be a user, the evidence still proved beyond a reasonable doubt that he was a seller. Since this was the way in which the Government had placed the issues not only to us but also to the jury, I deemed it appropriate to judge the case on these terms — terms which, as I indicated above, rendered the Government’s evidence insufficient for me.
During the consideration of a possible rehearing — in the course of which I benefited from the input of my colleagues and conducted further research — it became clear to me, however, that my vote to reverse was untenable.
First, my additional research led me to conclude that I could not judge this case solely as it was presented and stressed by the Government, and that I was bound, instead, to consider it on the basis of the whole evidentiary record. By judging the case solely on the terms that the Government stressed to the jury on summation and to us on appeal, I was in effect holding that the Government had waived the right to have the sufficiency of the evidence judged on the full trial record below. There may be instances in which a party (including the Government) by its litigation strategy precludes us from *1047considering certain issues. But this is not such a case, for there appears to have been no strategic basis for the Government’s position. It simply made the mistake of emphasizing to the jury and to us only evidence that was — for me — ultimately not sufficient to sustain a guilty verdict. Cf. United States v. Kon Yu-Leung, 51 F.3d 1116 (2d Cir. Apr. 7, 1995) (stressing the distinction between inadvertent and strategic grounds for a failure to object to the admission of evidence).
The Supreme Court has indicated that in conducting sufficiency review, a court is to examine “all of the evidence,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), and in my research I did not find a single case in which an appellate court in judging the sufficiency of the evidence to support a conviction looked only to the evidence highlighted through the Government’s advocacy, rather than at all of the evidence presented in the trial. Cf. United States v. Moon, 718 F.2d 1210, 1236 (2d Cir.1983) (assessing a sufficiency claim by “reviewing the actual trial transcript,” after the Government failed to highlight sufficient evidence in the trial record). Consequently, it became clear to me that, despite the Government’s approach to this case which appeared to concede to us and to the jury that Martinez was a user, the dispute over Martinez’s status could not be disregarded and I needed to consider the significance of the evidence suggesting that Martinez might in fact not be a user. See Jackson, 443 U.S. at 318, 99 S.Ct. at 2788-89 (explaining that “the critical inquiry on [sufficiency] review ... [is] whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt” (emphasis added)).
Assessing the significance of Gardiner’s testimony about Martinez’s statement inevitably meant facing the question of whether the “conditional fact” of Martinez’s status would need to be demonstrated beyond a reasonable doubt. Of course, as noted in Judge Walker’s opinion for the Court, those facts that are truly “subsidiary” to essential elements of a crime need not be proved beyond a reasonable doubt. See, e.g., United States v. Schwab, 886 F.2d 509, 511 (2d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990). But in this instance, whether or not Martinez was a user did not appear to me to be simply one of a number of lesser subsidiary facts in support of an essential element. Rather, since it seemed to be the one “conditional fact” upon which all the other “data” — except for the gun — fully depended if they were to have any evidentiary significance at all, Martinez’s status looked like the singular and central fact upon which all the evidence, ‘ and thus the entire case, turned.
In unusual situations in which all the data presented at trial depends on one key fact in order to have any evidentiary significance at all, such a vital “conditional fact” becomes an essential element of the Government’s ease, and would seem to require proof beyond a reasonable doubt like any other essential element of the case. The Supreme Court has suggested as much in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), when it held that a fact which served as the “cornerstone” of the Government’s case was to be subject to a heightened evi-dentiary standard. The Court explained that it was ultimately of no importance “whether we consider [that fact] ... one of the formal ‘elements’ of the crime or ... a fact subsidiary to the proof of these ‘elements.’ It is the practical relation of the [fact] to the Government’s case which is crucial, not its theoretical relation to the definition of the offense.” Id. at 155, 75 S.Ct. at 199. Consequently, if it .was truly the case that the value of all the evidence against Martinez depended on the single, vital “conditional fact” of whether Martinez was a user, it seemed to me that such a fact would itself need to be proved beyond a reasonable doubt if a jury were to be allowed to convict Martinez. See generally In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (explaining that the Due Process Clause requires that all essential elements have to be proved beyond a reasonable doubt).
Significantly, if that were the appropriate standard, the evidence in this case would not have sufficed. The Supreme Court has held that even an “exculpatory statement[ ] ... [g]iven when the accused is under suspicion *1048... call[s] for corroboration to the same extent as other statements,” and that such a statement cannot, standing alone, support a criminal conviction. Opper v. United States, 348 U.S. 84, 89-92, 75 S.Ct. 158, 162-64, 99 L.Ed. 101 (1954). Therefore, Martinez’s statement to Gardiner that he was not a user would not have been enough to establish that crucial fact beyond a reasonable doubt.
The discussion in connection with a possible rehearing, however, highlighted a further and highly important point in support of the conviction that the Government had also not pressed on appeal, namely that the particular circumstances of Martinez’s gun possession made the gun not just some limited evidence of an intent to distribute, but instead extremely powerful proof of such an intent.3 Martinez was found in the possession of a gun not on the street or in his own home (let alone while hunting), but in an apartment that, by virtue of the drug distribution paraphernalia found in it, clearly served as a locus for retail drug sales. Moreover, of the two persons found in the apartment, he was the only one person with a weapon.
When I thought about these details, I concluded that I could no longer subscribe to Judge Newman’s suggestion that in this case “[w]e have no reason to doubt that a drug purchaser is as likely to be armed as a drug seller.” These circumstances, which though not stressed on appeal were plainly before the jury, established a very strong nexus between the gun and drug trafficking activity. While I still believe that a jury cannot conclusively infer an intent to distribute drugs based on the bare possession of a firearm, evidence that a defendant was the only possessor of a gun inside a narcotic distribution center is undeniably powerful proof of involvement in narcotics distribution. Consequently, Martinez’s possession of a firearm under the particular circumstances of this case provided more than just a little support for the conclusion that Martinez was a seller and not simply a user. Cf. United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (noting expert testimony that “retail drug operations run from houses often contain armed guards to protect the drugs” and finding that defendant’s possession of a loaded revolver in a house apparently serving as a drug distribution center helped to support the jury’s finding that he had an intent to distribute).
Did Martinez’s possession of the gun under the special circumstances of this case suffice to sustain the jury’s finding that Martinez had an intent to distribute, given that the burden of proof is “beyond a reasonable doubt”? There was, in fact, no need to decide this question because the significance of the context in which Martinez had the gun went well beyond just enhancing the weight of that piece of evidence itself. The gun’s increased importance meant that there could be no doubt that whether Martinez was or was not a user was not the single and central “conditional fact” upon which the proof in this case depended. And since the entire body of proof in this case did not stand or fall on the question of whether Martinez was a user, Martinez’s status plainly was not an essential element that needed to be established beyond a reasonable doubt. Rather, Martinez’s status was actually just one of a number of subsidiary facts that, as we have repeatedly held, needed only to be proved “more probably than not.” As long as there was enough evidence to allow a jury to find “more probably than not” that Martinez was a non-user, Martinez’s possession of cocaine, cut and a scale could serve as a significant additional indication of Martinez’s intent to distribute. And, when this was added to the evidence afforded by the gun in the context of this case, the aggregate could support the jury’s ultimate finding “beyond a reasonable doubt.”
I believe that the evidence of Martinez’s statement can readily support a jury’s finding that he was not a user if the standard is that of “more probably than not.” For Martinez’s purported admission of this fact was never explicitly recanted and was not contradicted at trial by anything but very limited circumstantial evidence long pre-dating the *1049admission. Since the evidence of his admission would allow a jury to conclude (more probably than not) that Martinez was in fact not a user, it is also enough to allow a jury to find (more probably than not) that the cocaine, scale and cut in Martinez’s possession constitute evidence of drug dealing. Together with the gun in the circumstances of this case as detailed by Judge Walker, that evidence suffices to permit a jury to conclude, beyond a reasonable doubt, that Martinez had the requisite intent to sell. Drawing all allowable inferences in favor of the Government, as we are required to do on an appeal of this sort, see, e.g., United States v. Gordon, 987 F.2d 902, 906 (2d Cir.1993), we must hold that the jury properly reached this conclusion. And that means, in my judgment, that, despite its errors, the Government has sufficiently proved its case and the conviction must stand. Accordingly, I join both the Court’s result and its opinion.
. The Government also claimed that Martinez could be found to have constructively possessed the drug trafficking paraphernalia found in the apartment. I continue to believe, for all the reasons detailed in Judge Newman’s original opinion, that the evidence at trial did not sufficiently prove Martinez had "dominion and control” over the evidence found in the apartment so as to allow a finding of constructive possession. See, e.g., United States v. Rios, 856 F.2d 493, 496 (2d Cir.1988) (explaining that "mere presence” does not establish defendant’s possession over goods found on site).
. There may be circumstances in which a court might be more willing to take judicial notice of certain facts because there are special impediments, unrelated to the validity or value of the evidence, that make it difficult to present proof on a particular issue. Cf. 4 Fowler V. Harper, Fleming James, Jr., Oscar S. Gray, The Law of Torts § 19.9, at 60-63 (2d ed. 1986) (explaining that the tort doctrine of res ipsa loquitur, which frequently involves taking judicial notice of facts in order to permit a jury to find that a plaintiff's injury was caused by negligence, is in part justified by the "defendant's superior access to the facts”). But this is not such a case.
. On appeal, the Government had only mentioned the circumstances surrounding Martinez’s possession of the gun in support of its argument that Martinez constructively possessed the items in the apartment.