the first argument raised in mr brief he argues that the indictment in this case was multiplicity just because it charged him with two separate counts of being a felon in possession of a firearm in what should have been treated a continuing course of conduct that constituted one crime before i reached the rule twelve issue that i think is the key to this case i want to make one point about the government's closing argument there were two incidents and the government says that these are separate incidents of possession there is one in which mr gillum shot a man by the name of joe screen and this happened at harden jeffries home that was the gentleman who went by the nickname pops and then there's a separate second incident about three weeks later in which mr guillen was found at a drug house that was called the funny farm and the same gun was found there with him was actually hidden in an attic now although the government charged this as two separate counts in the indictment it actually argued in closing argument that possession was continuous the government said and it's quoting from or it's not quoting but it's summarizing karloff fields testimony karla told the detectives when she was interviewed a couple of days later she told you you'll find the defendant and you'll find the gun at the funny farm she also told you that after the shooting pops took the defendant and the gun to the funny farm so the government's own theory of the case at trial was that the gun remained with mr gilliam and it was the defendant made a statement what weight do we give the closing argument when there's other evidence that was presented to the jury that goes the other way and i agree with your statement obviously closing remarks are not evidence however the government apparently felt that the evidence of continuous possession was sufficient enough that it could draw that inference and i don't think because when if this is not if this is not continuous possession it is the government's burden to prove that possession was interrupted and so i don't think that they can exploit the fact that the defense failed to raise in a pretrial motion that this should only be have been charged as one crime i think they're trying to have their cake and eat it too they want to separate crimes but then they want to make this argument of continuous possession that kind of bolsters their their proof on the second count how would you describe the government's burden on this issue on abandonment and established to i mean it was and it was not required to be as i understand it on the face of the not the abandonment issue i mean that the two offenses obviously were charged separately and they're not i looked at the jury instructions and found no guidance on how you would actually charge this type of case now in in another type of case let's say it was felon in possession along with being a drug user in possession you had the the remedy comes later it's not pretrial they can't force the government to elect between the two counts they have to give the government an opportunity to prove its case before the jury and then if charged incorrectly in two separate counts the jury instructions are then modified to only refer to one crime in the alternative specific portion of the rule subsection b three says raise the claim if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits so those are two conditions precedent set forth in that clause beginning with the word you must have both things in this case from the indictment it references the exact same gun the description is the same in count one is count two so you could plausibly argue that based on that a diet meant that the potential issue was apparent from the face of it but the government can't reach its second wire the motion must be able to be determined without a trial on the merits there is this issue is fact intensive there's no way prior to trial in the reception of the evidence that a district court judge could say well ye fireman's the judges precluded this quarter's precluded from even looking at the merits of the claim that it's absolutely way our our argument though is the government can't meet  the end of the government now to you to your point i think true i am extending this further he didn't raise the objection at the close of all evidence but i think even under got the statements of the prosecutor for prosecution in the closing but we have actual evidence as well in the actual evidence indicated that the defendant turned the weapon over to pops  you point out well there's also this possibility that pops took the gun in the defendant to the funny farm but if possession was relinquished factually that's a separate  holes out of the woodwork in the house where the shooting occurred he's taking those away also it's not simply excuse me that mr gilliam put the gun down l wasn't here he did in a statement to the police but i don't think that is out of court denial can be used to relieve the government of its burden  it has to be proven beyond a reasonable doubt and what the witness karloff field told the police was you will find that gun at the fun fun place to go i'm also at the funny farm cops knew exactly where to take that gun and it got back into mr guillen's hands if the government is going to choose to argue that this is continuous possession at trial i don't think it should be allowed to switch its theory now that we're in front of this court on appeal it would possession had to be interrupted in fact instruction fifteen says just the opposite i can find that instruction the indictment in this case charges the defendant with two different crimes keep in mind that each count charges a separate crime you must consider each count separately amateur to separate verdict for each count but in the verdict directors and not in any of the others instructions as well does it say you must find that you know its words to the a fact you must find that possession was interrupted that it was separate possession on two separate days so the jury has no way of knowing that its burden is to find that element and so basically the element gets written out of the jury instructions and yet the government immediately turns around in closing argument and says oh it was continuous possession it's easier for them to prove count two that way but it's logical that he would he hung onto the gun and that's why he had at the funny farm when the police found him there and arrested him three weeks later one more point if you don't mind about the twelve the standard the government's case is primarily focused on double jeopardy issues in which what is required is an examination of the elements of the two statutes under which the defendant is is being tried and so it's simply application of the block order to asked that and that is obviously apparent from the indictment and it's a purely legal issue the court simply looks at the two separate statutes and determines does one have an element that the other does not contain in this case it's purely factual so the  fact that this this objection was not made prior to trial does require a finding a higher standard of review for plain error but it doesn't defeat the claim this legal issue has been settled since united states versus jones and that case was decided in two thousand and five and then in two thousand and six this court decider richardson which i believe was the first eight circuit case saying talking about the allow unit of prosecution in one thousand and two cases the issue did affect mr gillum substantial rights he was sentenced to consecutive ninety month terms of imprisonment for a total of one hundred eighty months when the actual statutory maximum for the crime is one hundred twenty months and it seriously affects the fairness integrity and public reputation of the judicial proceedings from getting an unauthorized conviction to remain in effect especially one that increases punishment beyond the statutory maximum would would harm the integrity of the judicial system i'm into my rebuttal time so i will language in the rule though that you co counsel cited that if the motion can be determined without a trial there how do you interpret that well i think that's really where where the question is in this case and i think in reply multiplicity was readily determinable i mean on the indictment it said he charged the same gun on two different occasions so the element that would need that needs to be determined i think of this court is exactly what you're asking about and that is whether or not distribute turman without a trial on the rule statue limitations is also listed in the same rule in fact discovery is listed in the same rule as motions that have to be brought pretrial or there or else they would be waived so that rule in just the pates possibility of mean in this case you're basically talking about the entire case in chief that the government presented at trial well i have two answers to that one i think in theory that's not a hindrance oftentimes you know  suppress that's exactly what happens see if there's a traffic stop the motions as a press is the exact evidence that would be presented at trial and sometimes you good defense attorneys actually file the motions press for that purpose so that i don't think in theory is a hindrance but secondly in this case it wouldn't be because what you're talking about is focusing on one particular instance or one particular point in time with regard effectively to the evidence that was presented for count one count one is the possession at the time of the shooting at the at the white street address and what we're talking about is after the shooting what happens with the gun the evidence at trial is that you know mr represents i also think that if you read the record you can see that had it been objected to at the time you would sustain an objection to the misstated the evidence he did the evidence was testimony was that gilliam left after he passed the gun to pops and cases there's not a dispute you know there's there's not a dispute on the facts you know it would be probably you know in this case probably would have been a factual proffer and i also think a second part of this is is that or an additional layer to this is that you know the government provided for the sky every so it's not the case that this was a claim that sort of a ruse at trial and the defendant had no idea or was not put on any notice of the possibility he could statement to police was had been provided so the defendant knew what the trial evidence was going to be and was fully well aware of the possibility of making this claim and the claim couldn't you know that the rule says can be determined if the claim could have been determined pretrial now that's not to say that the court would have and that's not to say that the best practice would have been the court may have accepted the most specific claim and so ok this is going to be instead be an issue for trial we'll consider it at trial but at that point and five jones case certainly has language that suggests that but the jones case was also a twenty two fifty five case and as we argue in our brief the appropriate around here for the court is to accept that the waiver argument this distance argument was waived and it was in the reason the waiver is put into the rules and the reason that waiver should be enforced here is that the defendant is asking this court now to review whether the or to find error in the fact finder not finding something the fact finder was not asked to find and that's not reviewable i've i've looked through as many you know sort of cognate areas and tried to brainstorm what the actual standard of review for that would be and i can find nothing i do find cases that sort of revert back to sufficiency of the evidence but now you're asking two wheel was the evidence sufficient for the fact by her sometimes something that the fact finder never had a chance to find and i don't think that's reviewed you know really i don't know wait for the court's review that that's why the waiver should be enforced here and that's why the waiver route was there you know and i think i cited some language from the seventh circuit that says you know and i'm certainly not accusing the trial counsel on the defense for four game plane that's not my point but it says the point of the rule is to not have the situation where the court is now having enumerated pretrial motions that rule twelve that has to be brought before trial in additionally the ter court makes a point of saying that challenge was an affirmative defense now an affirmative defense is something that you actually have to look at the elements of the government's proof in order to then applied to the fence and professors work different ways sometimes they add an element sometimes a negated element sometimes they shift the burden to the defendant but in any event they're all tied to the elements of trial is that what has to be proven or considered in order to get to rule on this motion and in that instance then i think that's what not able to determine or not capable of determining pretrial that's what it means that's not this case this case the question is was the was there an interruption such that the government could go forward on two different counts and in turn are you're talking about  so i think there is a strain in this court's cases where yes the jones case makes it sound like it's sufficiency of the evidence issue there is a strange several cases the what some of the ones we cite where most pussies appear legal issue that the court would decide it's of the evidence your standards would be entirely different i think it's distended there would be a pretrial motion and the court would take whatever it is appropriate decide that it's based on her ponderous and this court's review for that would be clearer an entirely different posture than where we're in silent it also would allow district court you didn't take it it's on whether or not the evidence was sufficient to make the determination of this course being asked to make on a cold record to make whether or not the evidence was sufficient to prove rather i think the court's ruling here on issue one is to enforce the waiver and then it goes back to the district court mr gilliam wants to pursue the claim berger that will be his choice in post conviction really i think this court case this court's cases prior to two thousand and fifteen almost implicity analyzed the issue is not through a lot of different frameworks after two thousand and fifteen where the rules you know make this big wave requirement very  clear i think this court's analysis has all been in line especially on the waiver issue and including in cases where there would have been a factual where were there is a claim that multiplicity wasn't provable on the face of the indictment and so discourse caisson pride which is one of the cases it from a guy i shot the other guy and then i got rid of it he even was saying that he was intending to dispossess himself of the god is all rational fact finder if that's you know if this is court decides to apply which i don't think is appropriate but a rational back absolutely find that evidence sufficient for abandonment in this case government notes the defense was provided with full discovery and therefore had notice of the potential issue same is true for the government any time the government is going to indict on a continuing course of conduct case it is  assuming a burden of proof it is assuming that it much prove the element of interrupted is national there's no question of the research prize or are they surprised there may be a twenty to fifty five question of the defense counsel separate acquisition and storage of the weapons is an element of the crimes charge this element presents a question of fact to be submitted to the jury not a question of law for the court  i think just in practical terms where the government says well this all could be addressed in a pretrial hearing what is the defendant going to do is he going to testify yes i continuously possessed you can in the car make an admission as the two gallants of one count of being a felon in possession now we sometimes have that happen on motions to suppress where a defendant will have to establish standing and therefore maybe making a remark that might be incriminating to him but we have case law that precludes the use of that testimony later and try it's not automatically admitted unless the defendant would take a stand and say something to the contrary you would have to graft on to takes quite a lot of work when i really think the issue is already decided by woolsey and by jones the government mentioned one of its cases fry that case did not ball than at all the second prong of twelve the three as to whether the issue could be decided before trial it was a question of the defendant lying to the f c c and the court said it's plainly apparent from the indictment because the specific lies that you told were written out and they