conspiracy under eight forty six of title twenty one and the case went to trial and he was convicted of both and he was given current life sentences on both and the government argued a couple of things one they argue clear that's forsberg the jury was properly instructed you can't reach verdicts on both the greater and the lesser so that's how our generation of instructive what they were constructed that way and the convictions wasn't clear what that meant but it was clear what they intended and the government wanted to have options and one option they want to have was if we were able to reverse the fictional account you want to only count one is to say the government wanted the option to retry the quote the whole package second jury but yet for some reason that couldn't work out that couldn't happen maybe who knows the exhibits are going to fire or other witnesses became unreliable or their got convictions on count one two three four and five they were entitled to one of two things they were entitled to convictions as to the gallon counts one and two or they were entitled to convictions three four and five and  always but what's clear from all the cases is that if the government has a say going to trial here on burglary or burglary and robbery and gotten a conviction they couldn't have then come back and thing and as far as i know there's no case that holds that you can do that you have final convictions and the government and the reason we have final convictions is because the government number one opposed to just the dismiss the first thing that i'd like to bring to the court's attention is the opinion and the underlying  an excuse me in fact no three it indicates other than me jails are pretty challenging the district court's jurisdiction which we reject either defendant challenges their convictions for attempted robbery attempt and said the parties agreed that sentences for the underlying felonies would violate the double jeopardy clause therefore the court only sentence the defendants for the felony murder charges and the weapons charges so all of this co or any recognize that the district in this particular case took efforts to avoid the application of the double jeopardy provision but i think that their point there is the court was aware of the state that mattered that when i was reversed and came back down there was a preliminary hearing probable cause they issue they went back and recharged the defendant in that case  that your honor they look at the charges as a papist and that jeopardy was started when the trial on those charges began and then the appeal which was a voluntary action by the defendant of one of the charges the greatest charge continued that jeopardy and created the spammer an arch that ran through the appeal to the free trial and they talk about findings and her ruling she indicated that she found them to be informational that count one was predi which part yes your honor which bars double punishment but in in versus meachem the issue that they were looking at there was the underlying offenses and where were they come out on that  they said that because he was still running on the greater offense and jeopardy terminated or triggering event as mr wolf argues the judgment on the predicate offense occurs after the beginning charges that could have been brought in the same indictment but for some reason the prosecuting authority brought them separately and if you go on a lesser and that runs its course  as the bringing of the greater and that's clear but in this case we brought the greater jeopardy attached from a greater when the jury was formed that the terminations of the robbery and the burglary charges so the robbery hell i've been found guilty on both counts the imposition of more the sentence would have been illegal that's what forsberg says so here again we come back to the same situation the imposition of more than one sentence in this particular case would have been prohibited because they wished to take issue with how the judgment was reached they chose what to appeal and by appealing the middle of that one of the likely results could have been a reversal which they were seeking and for retrial and that's what the original opinion states so even the first panel that addressed this was contemplating that there would be a retrial when it came back down the district court also noted that in her findings so everyone who had looked at it at that point was anticipating that it would come  the government's position in this case that it should be allowed to retry the defendants on the two greater offenses the defendants tactically chose not to appeal the subsequent prosecutions under a new indictment for a lesser offense after prosecution an acquittal of a greater offense we're still in the same cross occasion here we haven't finished what we started the jeopardy say that lesser included offenses cannot be considered in the  theory of the case that there was another person who fired the gun and it was not his client that the judge needed a ruling that there was insufficient evidence to support that and  makes sense for a jury to receive the predicate along with the greater offenses the reason being they're being asked to find as part of the greater offense that that lesser robbery or that lesser burglary o d so if you give them just the greater instruction which includes felony murder is the taking of a life or another during the course or flight from a robbery burglary you must find a robber you must find a burglary it is a clear fact is it more understandable to the jury for them to see here's the robbery here's the burglary this is what's required felony murder requires us to find those offenses so if from a standpoint of presenting the facts for the jury and having them understand what they're being asked to do it is a meaner way to do things whether or not the court in this particular case might have given better instruction as to how to proceed through those gets to pick which one they want to keep but they're not entitled to both and that's really the point of how we got here because the double jeopardy clause really is limited tempting to curb some kind of overreaching by the prosecutor all