are five different assignments of error dealing with the guilt phase of this trial and those five assignments of error can all be interwoven by this one theme which is that the government consistently and successfully sought interviews to the jury prejudicial information not relevant to the charges and in the same token the government also successfully and ever to keep from the jury exculpatory information that the jury could be used in this liberation what the most interesting issue out of the five issues is the multiplicity argument and what makes it interesting is that the government here in the twenty nine a motion conference candidly admits to the district court that it didn't feel it did indeed knowingly constitutional right to a trial the government responded by filing a six count indictment where they charged in different counts each different type of ammunition when during the twenty nine a motion which the court will that there is a possible prejudice that derives from filing an account an indictment that is multiplicative and they recognize that the case law sees this danger and that there is indeed a teenager the jury will believe that the defendant has committed multiple crimes when indeed the law states in this case clearly that he committed only one for what the government goes on to say is that in a case in which the prosecutor was involved in united states which is now to use this court issue to rulings thing but the defendant has virtually no remedy on appeal to correct this illegality so what has been created in the law is legal error without reaching us and the government has quickly rushed in to fill this vacuum they recognize that what they're doing is a branch of the fact that the court has not provided us a remedy for this on a field and the question for this court is that the type of conduct that is appropriate for the government to engage in is it appropriate for the government to take advantage a legal loophole in order to convict and offend and what makes this case remarkable is that in fact the government's concession is on the record they knew it was illegal they're doing it anyways because they say i can't i have no remedy  some ways it could help the defendant couldn't well you could make that argument that the jury could split that what they it was in fact they did here in fact here the jury said he didn't have some of the bullets so that if they got it all much together then the somehow the the numerous indictments lead to or reversal no court i think is fact anything that court reversed actually so point is it does help in the something in the case the case where all the evidence would come in anyway now it could be a case where it wouldn't but here it would have come in anyway that's pretty clear why there was one or six right that's true so here actually what happens is the jury people found in the pants he was wearing which he tried to introduce the statement saying that the pants weren't here's the point is that it can go either way just for man and i mean you can say well the jury can split the baby here and enter a split verdict and that helps the defendant but maybe does doubt that sometimes other jurors will convince the holdouts to go along with the verdict because but walk with him on some of the counts and convict him on the and i don't know what legal principle we write about we all know  the what we do know in this case is that all this happens would have been from the jury anyway so it's not a question getting in some sneaking in some evidence he couldn't just knocking on all would have been there anyway at the end of the day he suffers no harm he may have said we don't know he meant he may have really suffered a great benefit because the jury people that repeals off a couple of them so the jury obviously isn't confuse they're not stupid and they think they're taking them one by one and they're and they're forced to decide on each one of them question of possession and they do so if we're going to start talking that kind of dynamic stuff then it seems to me it's one way or the other as you say who know whether the two points there are what it's worth our clear preference as a defense that our evaluation of what would be prejudicial to present what it wouldn't be is that it be in one count because our preference it's all over the record here that we wanted one count not six and that it nine eleven telephone call did you want to address that i would like to address that the government at the trial level argued that this was not hearsay because it was only offered to show the effect on the listeners in this case the police and the just offered for a fact on a listers but then argues the evidence a subset of evidence and in fact in their closing argument they read the nine one one transcript and they love the nine one one transfer of this case why because it's very very prejudicial very prejudicial  and also has very little probative value to the issue at hand if you read the nine on one transcript france which isn't to be excerpts of record it doesn't really have any real bearing on whether or not mr president has the same intentions firearm in his mother's residence on talk about is them threatening his mother with a knife about and setting fire to things randomly in the kitchen it's just a very prejudicial domestic type situation that certainly had an emotional impact on the jury like to say and guess what those bullets happened in the pants pocket somehow strangely enough that's where they were unless my mother is planted guns and things around and is trying to sneak out of my building on her own so it's not just sort of that guy just came and changed my clothes and to change my pants and these bullets showed up in them and this does try to indicate he wasn't there just to change his plans but you just ran is not necessary to your theory that he was just there to change his pants and he he did say i'm running out of time so i'd like to let the government have their say all right thank you the defendant i will point out at trial only objected to counts one through five as being multiplicities count six was the count dealing with the firearm counts one through five get with the ammunition counts one in two dealt with the ammunition that was found in these rear pants pocket counts count three dealt with the ammunition found in his front pocket count four and five dealt with the ammunition that was found in the trash can and that's what he objected at trial as being a multiplic usual way the government and the district in nevada files these cases on and on occasion whenever the there's any nation different types of ammunition that are found in different locations your honor yes even as time  i'm only familiar in particular with this case in just a few other limited cases however this court your honor has addressed this very same issue in united states versus matthews in that case the defendant sold th ree firearms to an undercover agent two of those firearms were stolen the government then indicted the defendant on five counts three counts for felon in possession of the firearms and two counts for possession of stolen counts in that case and the trial court denied the defendant's motion in that in that case the court provided some some strong language with we're guard to some guidance when this issue does arise in that court stated that the chief danger raised by a multiplicity indictment is the possibility that the defendant will receive more than one sentence for a single offense and the court went on to say that in that case by the court dismissing two of the three counts before the defendant was sentenced the district court ensured that the defendant did not face more than one felony possession felon in possession conviction the court did say theoretically a new trial may be available as a remedy however in circumstances like these where the jury considered and multiplicity its indictment that the defendant was sentenced only under one can't this court has rejected sets around that where the government would have interviews exactly the same evidence had the indictment contain only one count so there's the question presented for the court is whether or not this court whether or not at trial all of the evidence what it came in with regard to counts one two and prejudicial atmosphere where the jury is facing multiple charges even though the government knows from the get go that they don't want the one sentence for all of these multiple counts well in that case your honor if the government were to put all of trial done them any favors or join one count and they are you suggesting the government was trying to make it harder to obtain a conviction by making sure the jury agreed on the same ammunition well i think perhaps the government may have been had some duplicitous concerns as well at the time that it it sometimes as the courts were well aware as in making these charging decisions sometimes whenever you start to put to these counts in the one count them the objection later would be that the indictment is duplicitous but nevertheless your honor there were furthermore there was no prejudice because all of this evidence when it came in any way the jury would have heard about all of the ammunition that was found on his person and in the trash one there are several hearsay exceptions to that tape and one of them is the present sense impression another excited utterance and also records of regularly conducted activity defendant makes reference to a case  individual who was standing at the window and he was observing all of the advance of the arrest he was then relaying that information to the client who was on the phone with the nine one one operator and then the declarant was then just reiterating the statements that the a weapon and ammunition yes i do believe that there was some testimony that the weapon was in fact found in the garage and that the defendant when he was arrested i believe was in the kitchen and the government would have to establish at one time or another the defendant was in the garage and during the nine one one tape the word missions by miss cordova who she is stating that the defendant was in the garage and i believe broke down the door coming out of the garage which would then establish the defendant was not swan so with regard to the defense's you know complaint that this caused a new prejudice the jury is going to hear about this testimony anyway the defense could have objected perhaps to these other officers testify to the same stuff is being highly prejudicial evidence that's merely cumulative then the four through balancing test falls in favor of the defendant now just fernandez you did mention that you thought there was only one case that the toss about the danger multiplicity at the trial level and sitting there i was listening to the government i found