possessing cocaine for distribution and he was charged with possessing a firearm but he was not charged by the government with possessing a firearm in furtherance of the distribution of cocaine or over the district court found that the firearm that was recovered from mr jones car was so far attenuated from the cocaine that the gun was excluded from the evidence in portion of the trial that was devoted to the cocaine charge the court's instinct in separating the gun and the drug counts certain narrow class of cases in which bifurcation and separates are not interchangeable and i think therefore that when the government suggest that this court would have to overrule new in order to accept mr jones position that's not correct actually it would be simply a clarification if and when making clear that there is a class of cases where bifurcation with me were separate would be required rather than bifurcation and i think that that position is supported by this court case this court's holding in the dealer as opposed to you know on again you still have to go through what elements of that in terms of possession and all of that correct i think that's exactly right i mean what the elements have that really go more to not so much who you are but you know where you are relative to the weapon what sort of dominion control you exercise everything area whether weapons found and so it makes sense to me it makes it harder for you to  the drug charge has had this been a situation where the jury had received evidence in connection with the drug case of the possession of the gun such that the only issue that was left for the jury was the narrow one whether mr jones had a prior felony honor was a case in which there was a nine twenty two g charge and there was a charge of unlawful transfer of an unregistered shotgun and so in that case bifurcation wouldn't be adequate for exactly the reason i was just mentioning which is that the jury had to receive evidence of knowing possession of the gun in connection with the other substantive count when they were ruling on whether he unlawfully transferred an unregistered shotgun they obviously knew that he had a gun and therefore the issue know whether this was fair or not cracked the test is whether it was that is an abuse of discretion in the sense that it deprives the defendant of a fair trial right what are the factors that we look at the this court in both morehead and terry considered the impact on the jury's ability to fairly evaluate the evidence in light of what they knew about the defendant's fall it seems to me that it seems to me that two factors are whether the defendant has been prejudiced by the consolidation of the felon in possession or what and what the other when you're looking at when and the unrelated charges and the strength of the evidence right correct your honor correct and that's that's exactly wh we certainly wanted to limit the danger to the jury from that school over prejudice and thus we requested illumining instruction but this court has recognized in louis that under circumstances similar to these a limiting instruction may not be enough when the evidence is of this nature of a prior conviction in particularly a prejudicial prior conviction as moore had in terry acknowledge it's not enough simply to give a living instruction judge callan and your question yes it is it is an issue of whether there's prejudice and that's what moore had in terry speak to a jury cannot segregate the knowledge that they have about the fact that the defendant is a drug dealer in deciding whether he's guilty of this offense as to the evidence there was evidence that the government put on  that mr jones had this heart registered to him and that there were bullets in the gun that matched the type of bullets that were found in his closet both of those issues were contested at trial however it was one of many cars that he had and the evidence was that mr jones had recently purchased that car at a lean sale and had it for sale again also the evidence that was presented by the officers was that that kind of the nation was in fact among the most common that is not what you'd have to no i think they have to hit they also have to know  presented through the testimony of one of the officers there subsequent to being mirandized mr jones said i had this gun for protection there was no tape recording or transcript it was introduced to the jury and officer to his suits on cross courts and he was probably entitled to first of all into the when case there were actually two firearm offenses and and the issue was whether the prior conviction with the prior convictions being the focus of  required underwent when involved to firearm offenses and the prior conviction was for a firearm offense so thank you thing there was more prejudiced there whereas here they were claiming prejudice from an unrelated type of charge and  and i would argue he certainly was not prejudiced first of all all drug evidence was excluded from the second trial they did but they had then there was a limiting instruction in saying this right over y sort of like there's that you know an alligator in the bathtub but you know don't worry about that when you're shaving in the morning or something you know but this is true but this court has regularly held that juries are that we there aren't limiting concern that's where the president's comes in now in the second trial here this was a felon in possession issue so there was no avoiding the twenty elements of the crime right so that you have to prove that right and there is no case law supports for the rather novel argument the defendant's making which is it which is not based on prejudice from the prior conviction but just from evidence of the other offense that he's being tried on it at th a strong case he's saying it's not quite as strong as it looks what's your position on that because the strength of the evidence is a factor we have to look at right well i think the evidence here was extremely strong and that it didn't mosty tracy has and testimony showed that after she confronted him about or after the police had arrested him his response to her concern about the drugs in her house was that he had relapsed now she eventually tried to you know had sat up and just say that was that it only went to the marijuana issue but into that there was other testimony there about the fact that he had lost weight and indicating that cocaine relapse not of marijuana relapse and in addition there's the striking absence of any reaction on his part at the time he was arrested or in his response to his fiance saying that  he didn't know why that your aunts were there there's nothing like that and then later you have this canned testimony coming in from will be looking at the strength of the evidence aren't we looking at the strength of the evidence on the can charge contradict his admission that he had the firearm in the car for his protection and there was unlike on a drug charge where there was this witness list on must be there's no there is absolutely no rebuttal evidence at all about the firearm belonging to somebody else they did say that maybe this car had been sold but there was no there was no actual tangible or intangible evidence that somebody else had planted the evidence on the second part which is the firearm which if that is the focus that i had read it as being asked to both trial but if the focus is on the second one then i think there's both no prejudice to the dentist and overwhelming evidence on that count i think government counsel and they all on the head when she said that drug and firearm cases are regularly tried together and that doesn't typically pose a problem that's what makes this case different is that this was a case in which the drug in the firearm cases were not tried together damaging very briefly just to call your attention to one matter in the search issue and that is that there is no evidence in the record before the district court that would student that would support an assumption that just because there was cocaine in the house that you can assume that drug dealers will store similar materials in a car and therefore that that would support a search of the car that seems to be the government's position in its griefs there was no evidence on that point before the district court thank you this matter when admitted right well called the next matter of the united states of america versus marni and burps case number zero four one zero two four zero