the government's witness regarding testimony about a b b gun all right that counsel elected for whatever reason not to pursue the this theory  cross examination that i think you're getting to yes you are correct and if that's the case then why is this claim argument preserved for people it's preserved to be kid is unlike luci in all the other cases i think where the record was not fully developed the court here has a very clear understanding of what the arguments were ortiz and these other cases that you are citing don't carve out that exception they say you've got to make your record and preserve it and if you don't do that then it's not preserved for appeal so why should we review this claim you have this other argument i understand on collateral  defendant would testify they stated in that case that it was there were too many other ideas of the theory in the cellar is that right now you're asking us to the side something based on an abstraction based on something that didn't happen which is a series of questions posed about or trying to elicit or trying to support the figure on theory and objections and so on and maybe the district would have  have had an opportunity then to consider reconsider but we don't have any of that because counsel elected not to pursue it we'll acted not to pursue it because it would be so clearly prejudicial we did thoroughly brief the issue though in the court did issue an opinion on it so i do think the the dangers that luge and ortiz were trying to prevent are not present in this case i think that there is another of a record and the the dangers of the prejudicial nature of the evidence would have been so clear that the court can make a determination don't you agree ms heller that there is no evidence the outfall for us to consider your counsel did not take the step of making the argument and did not open the door and you're asking us one to speculate although maybe that's not difficult about what counsel for your client would have done or how that counsel would have done it but then asking us further to speculate what the government would have done in response i mean the governor may have let it lie i think you know where she would all think the government and i can certainly let the government talk further about that but i think the government made very clear that they would pursue the two thousand and six case  think that there was no question and that's really why i think that this particular instance does not fall under ortiz and which is because the danger is so clear in the record was more d less of a the femoral question as to what could have happened to been a very clear question why did he not want to counsel not pursue the line of questioning because we felt that any reference to the two thousand and six discharge of a weapon would have been so prejudicial that it would have prevented mr dominguez from getting a fair trial that just by the mere mention that he had been involved though never charged at the time of this trial with a prior incident where there was a weapon discharge would be again is that you try to pursue your evidence make your decisions and sometimes those decisions as you well know the seller will not tell you and you don't know those decisions may cut off the appellate route when you make  exception so why don't you turn to the cloud will stumble double jeopardy issue right your honor the collateral sample double jeopardy issue is this case is is very unusual we are now actually currently under a third indictment for conduct that the first and second one that this is the appeal of the second indictment that the government has been aware of since they brought the first indictment and i understand that there's a current third indictment actually regarding the two thousand and six incident now currently pending before judge capone while i understand wit and the other cases state that the government does not have to bring every charge they they can at once i do think that just for the purposes of judicial economy it makes no sense for them to not be stopped from bringing case after case after case after against the same defendants and using that conduct the prior for purposes of sentencing enhancements and then charging that conduct making an argument about judicial or government even the exact because they are two different instances i'm not arguing that it was part of different conspiracies to different but it was all part of the same overarching group of people the same acts over the same periods of time conspiracies oh and i see my time is almost up but to use the same conspiracies over and over for sentencing enhanced falls under the third prohibition outlined by the supreme court for double jeopardy that he's being punished repeatedly in it really appears that what's happening here is the government is unhappy with the sentence and so they're trying again and again and again what the supreme court has said punish repeatedly for the same crime and it's a different crime aren't these aren't these arguments and then i'll let you sit down or we can watch as aren't these arguments better made and the subsequent cases if in fact those are bro and to be tried and these arguments were made in the city in the subject in this case that we're here on appeal from because the initial two and i'm familiar with the integration clause but there it defies logic for the government to keep attempting the  same charges the same defendants over and over it it has the impression that the government is trying to get several bites of the apple that they were unhappy with  you are asking us to address by saying it's ok and maybe the better way is to say that defense counsel and government the government should sort of have a conversation about justice and what's the just result but as a technical matter when you ask us to focus on collateral estoppel and double jeopardy within these other cases seem to preclude what you're asking us to to do but you we  got you and we'll hear from the government area that they were committing conspiracy charges and conviction right that was the first case before judge carter in the course of investigating those pharmacy burglaries we learned that really those pharmacy burglaries were only a portion of the crimes and not the most serious ones descript committed it turned out that they had their inception doing home invasion robberies of usually of drug dealers in this case it was a numbers operation and the pharmacy burglars are sort of actually branched out from that when they realize they could also ste pharmaceuticals that is have to go after drug dealers who are often more dangerous but the armed home invasions were much more serious conduct in terms of violence the pharmacy burglaries although daring in scope that were conduct in the middle the night an unoccupied commercial establishment no one was harmed no was threatened on this tied up that's this case and from this poll that was the pharmacy burgas this case in front of judge pauley is a home invasion targeting an illegal numbers operation where people were tied up is a racketeering count this case before judge paul it was a single incident the single home invasion after we completed that case we're able to gather enough proof to show that there's actually been dozens of these home invasions much larger group there are thirteen defendants before judge probably over a much longer period of time and there's certainly a lot of unpunished conduct out there in particular with respect to mr domingo as although the two thousand and six robbery never came up in the case before your honor in the case that was before just polly there was a murder conducted committed during that there should be vindication for that and that is charged before a judge probably so the reason mr dominguez got charged a third time is because he was involved in a murder which he has never previously been prosecuted i'll note that some of the other defendants before judge pauley oh they were part of the same crew were not recharged before judge because they essentially committed more of the same other home invasions but no one was killed this is a murder but this was a murder and the