in the morning your honor is in may please the court your honors more stones and and i really discharge military veteran and firearms hobbyist was convicted of six counts related to his possession of to modify thirty seven millimeter shells the government agrees that four of mr johnson's convictions should merge into to the government also agree is that mr johnson should get a hearing on his ineffective assistance of counsel claim but time constitute a single course of conduct under district of columbia law courts presume that the unit of prosecution for weapons possessions offenses is the instance of possession not the number of individual items possessed that presumption applies unless d c council expressed a clear intention that the statute permits multiple convictions there was no such an intention here your house and they see you know two two of the same object both being manufactured let's say in several of the house but it's one house will be one manufacture even though there's two different objects being manufactured in two rooms of the house or would it be only one manufacture because there is one process of manufacturing going on into different places in the house your honor the question would be whether this was one course of conduct the government could allege that those were two separate courses of conduct such that possession occurred separately under the circumstances your honor outlined likely that manufacture would constitute one count there or why is that because it just feels to me like with manufacturing it's seems like there's there are two manufacturers going on not just one because you know there's two machines let's say that in the manufacturing and then there are two different there are it in adjacent rooms of the house it doesn't feel like one manufacturer even of the same person doing them and even if the same person doing it at the same time it does seem like there's two acts of manufacturing going on and i'm it's not clear to me why the the analysis would be different or the world is right next to it in the stash it possess yes your honor i think your the question is whether the d c council expressed a clear intent that this this  more than one count of conviction be possible under the statute and ferment manufacture as for possession there's no such intent in the language of the statute or in the legislative history so the court would look to that even but even your argument is that had to i think you said and i think embrace those same place and same time and when we was a place so if there if it's the same person and they own adjacent houses and there's one being possess one house and there's one being possessed and another house is at the same place you're on to the presumption would be that those are different places but the government could allege and one why are they different that is the same is the same person who owns the house and it's the same person doing it with both houses the place in a brief that the place was identified as the district of columbia that's right you're going to need to house adjacent to each other both going to be the district of columbia so why would those be two different  honor it in this the facts of this case mr johnson's indictment alleged only that the possession was in the district of columbia but were the government to allege that possession of or manufacture incurred in two separate locations the government could put on facts at trial demonstrating that the possession occurred and to a different course of conduct so for example in your honour's hypo those two separate locations in which the individual was manufacturing even though owned by the be two different places two or three different places in the same room as the two different places yes your honor under under the terms of the statute the the d c council intended for there to be one punishment for one course of conduct the government could allege that there were multiple instances of possession and attempts to prove that there were multiple instances of obsession in this case the government didn't didn't attempt to do that the allegation was that mr johnson possessed the two modified shells in the district of columbia and that he was us them on the same day in january he went on one last question along these lines now always your case in some ways has the best scenario for your side because the objects seem to be basically facsimiles of one another and is largely in the same place and as far as we know it's at the same time because they were discovered at the same  time what if there were two dramatically different weapons of mass destruction you know one of them is a dirty bomb and one of them is a shell and they're both being was asked in the same house at the same time and they discovered the same search your argument still the same that you're but you're only perpetrating one act of possession even then one of them is a dirty bomb and the other one is a shell yes your honor it would be the same argument and and being in demonstrates this can be in the district of columbia held that it was one course of possession when a defendant possessed both a knife and a rifle and the court raised this issue silly sponte and possession in that case occurred in two different locations in a vehicle one of the the items was in the the front seat in the passenger seat of the car and the other pistol or any deadly or dangerous weapon and in that case the statute there was even stronger suggestion in the term the language of the statute that could be read to permit two different counts but the court said no that that under those circumstances there was only one count of production of possession permitted don't have any additional questions on that at the moment i'm happy to to move to the closing argument issue that the district court abused his discretion by limiting mr johnson's trial counsel's closing argument to only some not all of the favorable inferences from the record trial counsel wish to point the jury to the possible inference that a key government witness may have distorted evidence although the district court permitted trial counsel to argue some inferences from the record the district court did not permit trout counsel to argue all permissible francis that your honor cut to the core of mr johnson's case and was error if your honour's have no more questions i will reserve their mate or my time for battle oh i have couple of questions  is our standard review all the closing argument is sure you raise abuse of discretion that's right your honor why then is this an abuse of discretion in other words do you have any burden to show about it say there are three princes you get to argue to and then you would have to show that would you that the rd inference you were not allowed to argue was  two inferences permitted but not a rd if that rd inference cut to the core of the defendant's case it would be an abuse of discretion not to permit trial counsel to argue that inference as well so how does that work here in your case campbell that about how the weapons were disassembled and how they appeared when he disassembled them that cut to the core of mr johnson's theory and what you wanted to argue was specifically i thought this turned on the district court making a valuation of whether or not the evidence showed the negative inference as to the officer that it could look to this prior district court's judgment about this agency handling of evidence and say from that perhaps this engine may have to store in evidence and then oh why isn't it abuse of discretion for the district court to say essentially that's another case it's not before us we don't know the facts except her and i'm just not going to allow that here when you are allowed based on the evidence in this case are you basically the basic inference and not the specific example in another case not before the court yes your honor i think the reason it's an abuse of discretion here is because it cut the theory that this agent may have distorted evidence specifically cut to the core of mr johnson's case so if there were if the district court had not permitted the evidence of this prior district court's finding about this agent then there wouldn't be evidence on the record to support the inference but once the district court permitted that evidence there was evidence on the record to support an inference and under below should this court the district or must permit trial counsel to draw all at all reasonable inferences including inferences that are in the in the court's words untenable forced unnatural so the standard is is such that defendant's counsel are given quite a bit of leeway to specifically point the understand is when it is an abuse of discretion and when it's simply a reasonable exercise of discretion when the defense gets to argue its basic theory that you shouldn't trust the office testimony argument here that where you have such a demonstrative demonstration of this that is it's just blatantly an abuse of discretion not to  the defense to to argue this i think yes your honor it's wrong it's certainly right that the more evidence supporting an inference where the defense oh it wants to introduce you know two boxes of photographs of the brutal stabbings are the killings of people in the district court says well you could introduce one box but not two d or he were five or she refines it even more you could reduce ten and thats it and i'm trying to understand why you think this is a different situation because i'm understand this and i do understand your your fear but i want to understand how it works in this case yes your owes to you d if the district court once that evidence is it is admitted and it's already before the jury the question for closing argument is whether trial counsel is permitted to draw the jury's attention to that specific evidence but i mean the district court then the district court premises its ruling on the legal theory in that you don't have to allow an argument of evidence that's not been admitted and that's you know that's what the dish court said and if you agree with that i don't see how there can be an abus discretion and i think the district court said that what went on in kentucky or wherever it was did not involve tampering and so difficult was essentially saying you don't have any foundation so to speak and that's so i'm not letting it i you're right i think i mean do you agree with that legal promise which is what the district court was relying on you were not going to let you involve put on an argument but those not have any kind of evidence re promise yes your honor certainly i agree that if there were no evidence supporting an inference the trial counsel wouldn't be permitted to argue that in this case the tribe counsel didn't want to argue that this agent tampered with  but separate from the device if a fuse were not in the eyes but separate from the device if power were not in the device but separate from the device that would make a difference as as far as whether that were the device or whether that were a combination of parts it would it would undermine war might in the eyes of the jury undermine the jury's understanding whether of mr johnson's whole ability number one and whether he had actually manufactured weapons for him it carrying of weapons or the possession of those weapons during the commission of another offense as opposed to the statute here which is intended to implement t the certainly at the legislative history and at the statute itself it's quite clear that what the d c council was trying to do was to essentially implement an absolute than on the  manufacture of weapons of mass destruction within the district of columbia that ban would be undermined the respect of that if the court were to take a sort of incur penny in propound approach in which if the person is found to twenty different places and it were alleged there were twenty different acts of possession because there are place in twenty different places there might be one thing but it seems like here you mean here is that because they were found in th carrying and possessing are both things you do with a weapon and are you suggesting that if this statue were the exact same example just bar carrying weapons of mass destruction that there would be a different result between carrying a weapon of mass destruction and possessing or manufacturing a weapon of mass destruction i think certainly that would be a much harder case for the government to argue i do think that there is a significant difference here and part of the reason why is if you look at  although we tend to think sort of colloquially as the that the carrying a pistol without a license statute that carrying a dangerous weapon statute as implementing a ban on firearms within the district technically that's not a actually what they were doing the firearm itself was not directly prohibited by any of those statutes the mere possession of the firearm was not prohibited it was prohibited and only under certain circumstances one you could not carry it on your person if you did not have a license to do it now of course the district didn't issue licenses until recently you also couldn't have an unregistered firearm that was the that was the statute analyzed in hammond which of course we describe in our brief and we think is actually the better analogy here but even things like knives which are covered by the carrying a dangerous weapon statute it's not that the item itself was  banned or banned under all circumstances it was only it was only under was only its carrying or use under sir concert or certain circumstances that was prohibited not so here with the weapons of mass destruction statute that simply says you cannot possess it you cannot manufacture it you cannot possess it it is a it is this statute is different in kind it's intended very clearly to implement an absolute ban but i'm sorry go ahead rick please that is a mean i think if i remember correctly they're setting a presumption that is inconsistent with what in other words if there is a benefit of  doubt it would go to the friend and hears i'm reading the case law and not go your way and this is an odd statute because a violation can be punished by imprisonment for life so whether you have one of six hundred is not going to make any difference i realize this is very close in that there's no clear guidance in the evidence so you're trying to we're trying to scratch out well where do we look the d c case law is not supporting you as i read it i just don't see where you have any strong support for your position we're looking to see whether someone possessed a weapon of mass destruction one of seven hundred and if so there's a possibility of imprisonment for life and i don't see how you get multiple indictments out of that i just don't see it on the line i see what you're saying but it seems to me if there's an ambiguity here our sense in these criminal cases is it cuts against the prosecution you've got to have something better than well but you could read the language our way that doesn't work for me in any of them and i don't see anything in the d c case law that works the so i think that hammond your honor and i respectfully submit is instructive here in hammond obviously there were arguments to be had on both sides as to whether or not the possession of an unregistered firearm statute should be read that unit a prosecution should be the firearm or whether it should just be the possession of any amount of unregistered firearms and the court there looked carefully at the purpose behind the statute and both its language and what it was designed to implement and concluded in fact that the unit of prosecution was the firearm i do agree with you that under being if there are serious doubts then in general those must be well that's what the supreme court did say in chapman you're all right and i understand exactly what those words mean can be argued but clearly an ambiguity i'll give you that and i think it's a very clear ambiguity but and if you have that it seems to be that's enough for you to be in trouble and that is so a big the oddity in the statute it takes one for you to get the worst but what the d c council had in mind all you need is  well except that i think though i do understand your honour's point about the sort of very severe potential penalty right of course it just says up to like there's no mandatory no no i understand the limitations of my it's instinct now we're trying to figure out where you go with those and if you don't have anything more than you're presenting i think it's a troublesome or well i i do think though that the implications of what appellant is arguing are also equally troublesome  if you know obviously here appellant was not charged with manufacturing a weapon of mass destruction but to take a point that the judge in the boston brought up that under appellants argument and appellant i think forthrightly acknowledges the implication of appellants argument is that you could manufacture as many of these weapons of mass destruction as you want and you would face only one conviction i don't think that is a reasonable and ever suspect that it weighs very heavily in the sentencing if someone manufactures one as opposed to twenty seven that's going to affect how the sentencing is going to go and the sentencing has the possibility of up to life for one or up to twenty seven and so that's why the argument you're advancing just doesn't ring true to me because if there are multiple things going on that will be taken account of in sentencing and the sentencing goes up to life for one and his many more beyond wonder if you find so i mean i just it just doesn't ring true is a compelling argument in this situation the language and i've gone back and forth on that but the language just doesn't ring true and l for me anyway is a real concern here the rule of law nitty i and i understand your honour's concerns i be asleep i think you know i'm not saying that one can't make an argument the question of whether or not there is with the controlled substances cases that i think there's a ban right you can't possess a controlled substance period they just want to root out the country was actually the controlled substance but then they controlled substance cases come out the same way as being because you know briscoe where you know marijuana is found in two different places in the same house and it was considered to be one act of possession of marijuana even though that's a ban and statute i think understood i do think you have two responses on that your honor personnel even when you're talking about the same substance the way d c statutes are much like the federal statute they are based on the amount that you have of the substance so it's not that if you have two tons of marijuana you are subject to the same penalty as if you have two ounces in other words those statutes are actually structured in a way that takes into account how much of that you have it's not so much that it's based on whether you've split up your amount into a couple of different places but it takes the whole and it tries to figure out how much you actually have well i think is here of course i close takes into account how much by having sentencing up to life well and that's where you know it's that's where if if there if you have to address that is we're looking at someone not just has one little i don't mean to minimize one but a weapon of mass destruction or really has this huge huge warehouse at home that's going to come into it to be taken into account right and i think though i have to however when we we also need to implement sort of what the legislature wanted to do and the question of whether it wanted it to leave it purely to the discretion of a sentencing judge as opposed to you know should each device be separately punishable or i think you know and again i i would simply conclude with the idea that i  strongly suspect that the council members if you would ask them would have thought that each device was separately punishable and that by implementing than that that's what they intended to do so we would respectfully submit that that is what we were just so you want to go there because if i w your class with the councilman i said here's a hypothetical i suspect more would vote the way i'm suggesting that is if you do you need more than one but in any event i hear you very well your honor i'd like to appellant and now i was talking about how apparently appellate was not permitted to argue that the agent distorts the evidence i don't recall the word distorts being used before the district court and instead if you look  seems to be saying that that's not what appellant wanted to do but that's certainly how it was phrased to the district court i think the court correctly concluded that the kentucky the the the ruling from kentucky was not a ruling that agent campbell had tampered with any evidence i'm not entirely sure what distorts means here but if the question is whether exaggerated or mishandled evidence or should be credited in describing that evidence he was permitted to do all of that what appellant should have been allowed to do but as far as i can tell that is the only thing that appellant was not permitted to argue and it seems to me that the district court committed everything else so again i guess it depends on what appellant means by distort but if by distort exaggerate or mischaracterized or if or just shouldn't be believed in about the fit the description that was all permitted and so i don't think certainly appellant has shown any abuse of discretion in how the district court approached how a coma could use that prior ruling if there are no further questions with your speckly submit that the judgment should be affirmed as we've intended for multiple punishments to be permissible under the statute as your honor judge edwards pointed out we believe the proper way that the district of columbia council accounted for differences in where all courts of appeals have held that multiple violations of that statute count merge into one conviction where where the defendant has several items  not wish to argue that there was any tampering he suggested that there might have been evidence on the record in which that inference would have been permissible but that wasn't the inference he sought to argue he sought to argue that