our final case for today now this afternoon is united states against washington mr patt of the prison sentences are come current and the dominant sentence is the one for distributing heroin and cocaine which is a hundred thirty two months so the consequence as far as i can see consequence of this extra ammunition victim is a one hundred dollars special assessment that is have we ever held the one hundred dollars special assessment meets the miscarriage of justice requirement for plain error review yes and united states versus parker five always the third four thirty four over rule two prior cases from that this court that had fallen to the opposite that it found that it was not a miscarriage of justice given that there was a fully concurrent sentence except for the within a house or apartment or whatever a dwelling a building and other cases where they're in different places within a theater but here we have some of the stuff up in the apartment some of the stuff down the truck the stuff down the truck could be driven around to any other location why doesn't that count as to location your honor up it minutely our case fall somewhere outside of the cases that have said there's multiple that single possessions but i would say this in the government's response to agree with this that it's a jury question of whether or not there are separate possession but that is a question that if you're going to if the two convictions need to rest on a finding that there are separate possessions or sup they're stored separately or acquired on different dates that's an issue that the jury has to decide well been but within limits you know because i know your theory is that maybe it was all in the backpack and so he takes the backpack up to the apartment but there isn't really any dispute in this case that some of it was in the truck and some of it's in the apartment absolutely so it's we don't need the jury to to res that for us and and if you know if some of that had been you know an apartment in in chicago and some of that had been a truck and rockford we wouldn't be worrying about it either because that would be clearly two different locations the fact that the truck is parked outside is what begins to make them look closer but i can't find any cases that say that it's not enough to be separate and it's also intuitively something you can see that there are different risks to having something in the truck that's not stashed in the apartment sure it was a car it was a dodge intrepid car and car look i understand but i think it gets to the point that the fourth circuit made in the united states versus moment which we talked about the in saying that you can't and they say the acts of possession may not be viewed in a frozen momentary state immediately prior to th then whether or not there was simultaneous possession of storage or acquisition on different occasions is to be found in the course of the defendant's treatment of the firearms and so back that's to my point of if he if they had been following him the police had been following him down the street because they had outstanding warrants for him they knew with the car he was driving so say they're tailing him looking for a place to stop him he ends up stops gets out of the car with the backpack over his arm goes into their convenience store to buy a soda or something and it's not different locations well but he's got the if he's got the backpack with him with the ammunition and it's with him in the convenience store in the guns under the seat in the car that those are different locations and so the question is and i think in this case it becomes a quintessential jury question do we want to say that this really is separate storage or not because the government's whole theory was mr washington comes over to spend the night at the miss same rights duplex goes inside takes the backpack in with him and that was what the guard government argued to the jury well there's more than just the backpack though they find the box of ammunition with twenty five rounds of forty caliber stuff they find baggies they find heroin and crack and if they find a lot not just sure but but if and if it were just a backpack you might have a stronger case well i would suspect the government's theory was that mr washington  that stuff with him none of that none of those items were missing rights and so he had to get them into the duplex someway and that we don't know when he'd had a previous relationship with her but their test to her testimony was that they  had had they did known each other hadn't had much contact she had a graduation party to celebrate her graduation from nursing school he came there they kind of reacquainted and then there was an agreement he'd come over i believe it was that the next night it was not the next night it was one or two with it but there's no evidence that she is storing things long term that at her residence their whole thing was he came over in fact she testified at the trial that none of those items were in her was there before he arrived in so i don't know and that was the government's whole theory was that he arrives brings all that stuff in with him and they actually are going to the jury he's going to take it all with him when he leaves and that's how they what they want to connect what's in the bedroom with what's in the car and so i mean it's that's the government that's the the theory that got argued to the jury that the jury clearly agreed with them by finding him guilty of the four of the five counts and so while i understand that the fact pattern here is outside cases that have found simultaneous possession but the point of making it a jury question is the jury gets the disciples and different location has to be more than simply it's not in the physical newtonian sense in the same location because you know a gun in a glove compartment is in a different location that it wouldn't be an odd way speaking you say that's a different location than the trunk of the car it's just that's not the same by the time you get to throw a car first it's a do well in the place you are pretty much at in a different world it's certainly more attenuated but i think that is why you know if a properly instructed jury had convicted i don't think i could win on a challenge to the sufficiency of the evidence but that's not where we're at and i don't think you can say it is harmless that the jury wasn't asked to and didn't make that the just distinguished them yeah well but they also the government pointed out that the it was the same h of ammunition both the forty caliber and the forty five caliber in the forty five caliber ammunition  found in the back that the forty caliber ammunition was found in a box on the floor in the bedroom the forty five caliber stuff found in the bedroom was in the backpack it was those two were the same brand of ammunition and the forty five plain view this does strike me is conceptually the same thing that the cases that say don't charge on the basis of every weapon or every bullet rest on you know he's got this stuff in his backpack he's popping up for the night he's coming back out it's really global possessions and i said i disagree with you on that your honor there are two separate possessions he is possessing the items in count three of the forty five and forty caliber but it's similar in nature here when you have things that you're storing inside a dwelling verse things that you're storing inside of car those are two separate locations of possession and i understand your honor's point with yer i believe it may have been defense counsel's point with walking into a gas station that's a different situation than we have here this isn't it he didn't leave the car and then get right back into the car he's spending the night there he is taking the ammunition with him and storing it with him in the you know it's a line drawing issue frankly you know because it looks like it was all in the car he takes it up so some of it upstairs leaves a little bit behind i don't know why he chose one thing versus another but he does that and then is probably going to pack up and go wri that down to the car in the morning there's just seem to be any indication is that she's offered to be a long term stash house or anything i agree with your honor on that it there was an evidence presented that he had been keeping their items there for a longer period of time he  there for the night though he has brought these items with them kept them on his person and is storing them in the apartment he didn't leave them in the car where the gun was at the store in them inside the apartment in a separate location and we agree that the jury should have been instructed that there should have been an instruction about separate positions but even here a properly instructed jury would have necessarily found several possessions because the uncontroverted evidence showed that these i were being stored in different locations there were not necessary mean actually or pawn it has made a different point which is that a properly instructed jury might have found either separate possessions or one big possession either one of those findings could be thought supported by this evidence and we would disagree on that point there are two separate locations in which these items are being stored at if they're being stored in a home versus in a car and it's some point if that if an instruction had been given the jury would have to have been given some guidance on how they make this separate locations determination and the case law shows that when you're storing items in a house and storing other items in a car those are in fact separate locations so a properly instructed jury would have found that if there was no dispute about where these items were stored and that they were in separate locations what about the fifth circuit's case united states against mayes where the police find a shotgun in a shed on the defendant's property and they find any nation in the house and the indictment charges separate counts but the fifth circuit says it's just one big possession that is shared is obviously a different structure it a different church or on the same type of property in that case this you have a bully no different in distance than the car and the apartment or here that is built there in permanent structures on the same property and if you look to the kennedy case so just to pursue that for a moment if you had drugs in the house and they happen to have a barn half a mile away from the house and there were more sorry guns guns in the house and guns in this barn half a mile away you would say that's all the same possession you're getting into a line drying exercise their efforts were in and there is  know that is is somewhat similar to that in which if you storing the items in a barn you know he's going to do undercover buy he goes back to the bar and gets the items takes minutes car brings him to location and there the court found that they were separately purposely charged in separate counts so i agree that there is a there is a line drawing exercise and this case the evidence falls squarely on one side of that line there is no question that he has resigned and with him over night in a different location and he's keeping the gun a loaded firearm in the car at a think the jury would have been given some instructions about how to find separate locations and that's one of the things that based on the case law they would have been instructed and there's no question here that those were separate locations under marchal your time is running low because i would ask you if you had more time what you would recommend for those instructions well that's that's a good question i think they would certainly have to be instructed us to the standard and then again they'd have to be given some guidance from the case law because as you pointed out some of the things in the case law might mess not necessarily be common sense of what we would think of a separate locations i think you would have to give instruction as to the wellings verses of the coals similar to what we've seen in the briefs all inside one dwelling that's not going to be separate locations all inside the car even if it's in the trunk first passenger compartment not different locations but when you have those and two in the dwelling and in the vehicle that's going to be separate locations so they would have to be given some guidance on that but based on the evidence that was presented the fact that these were charged in two separate counts they found him guilty on both counts and there was no question of where these items were possess there there was no plane error here that in imposing judgment in order and sentencing him on both counts was this the only fusion interview he was the only he's not the evidence showed he had he had been at the apartment for the graduation party and he had dated the resident and some pointers graduation here sometimes it is but in this case the sentences were fully concurrent and there's no indication on the record that the court even consider the fact that there were both of these counts so if your honor if you find plainer which we don't believe there is any a brief google search indicates that forty caliber weapon immunization may be able to be fired from a forty five caliber pistol it's a line drawing exercise in the case law says on this issue it's