government makes those elections let's say in your hypothetical example the government makes three auctions a you know we have this group being not you know these are these are this group is very similar group a cold comfort for similarly defective charging instruments going forward but this is a court this is the st circuit so we've never set that up so explain to me why this back that the new  because the evidence of your client's ills is is overwhelming although there's really not much in the government's brief as to specificity on that point was i isn't the government right here that even if we want to have some statement in our opinion in this case like the st circuits why isn't the overwhelming nature of the evidence  contract so you know there's really no way that the jury could have reached any other conclusion and if i miss i'll misapplied the fun's well i think i think it's a little bit more than that i think it's not just this is some technical contract based on spending i think the government is say that you client was clearly using these funds for what were obviously personal expenses and that what the government was required to something indicating the jurors that they have to actually agree on a comma in this case we really have the obvious that you have multiple transactions multiple groupings of transactions and the government transactions that retail stores it seemed one thousand dollars at the restaurant venture fifty thousand dollars at the recording studio i would imagine that the government's position would be that any of those alone would cons court julie a jury on behalf of the united states the jury's not required to hear especially unanimity instruction in this case because there is just one victim and there's just one perpetrator and just one ski there is no evidence that there  any confusion on the jury's care is to what scheme occurred who the perpetrator is and the victim that the government alleged just like an overt act in a conspiracy or in any particular  crime the jury does not need special unanimity on any particular transaction so and so your absolute or so your view counsel but let's take a hypothetical where there are three down that if a defendant requested a unanimity instruction that you all must agree on which two or three of the force equals the five thousand or more the defendant would not be entitled to that and that you could have a guilty verdict if you don't have twelve jurors agreeing on the same the same two of the four thousands your honor earth's th if those three transactions came from the same victim w matter whether what the brute facts underlying element as long as the jury agrees that the element is met so in this case it doesn't matter what the german of the jurors agree that it was the  that the case is made of distinct divisions between different types of activity dip in pace you know it was different extortionate conduct in liberia there were two different conspiracies so when you look at this case she is doing the exact same thing over and over again she's withdrawing money or spending money out of give us this day's bank account will  period of time there is no distinct victim and there's no distinct other way of improving so in all of that it's not the jury doesn't need to find which of those all are these what you talk about or even means so that element of the crime is the threshold of five thousand dollars and the transactions that make up that five thousand dollar always cases very clear that it says that these are just distinct proofs of the same act to prove that the same element and when you have distinct proofs the jury does not have to agree that one jury might be persuaded by some facts another  might be persuaded by other facts and it doesn't matter and part of your argument counsel in your brief is that even if you were to disagree with you as to what the case last hour says that what you precisely your honor this court does not have any binding authority on point demanding a special unanimity instruction in a case like this without without doubt it's very difficult to find that there is plain error and even when we look beyond our circuit and the cases generally support and that when you have a single defendant engaged in a single scheme against a single victim the jury does not need to be unanimous as to what how the defendant store  threshold on their own but sanderson court thought that they were properly combined in the same hands because it was under the same essentially the same scheme so suppose so as you pointed out there were over twelve thousand transactions that the defendant of that the defendant took from give us this day of bank accounts and when you look at that just vast amount of evidence most of them were below five thousand dollars only forty four dollars transactions were of actually over five thousand dollars but most of them were billowed and when you just look at the sheer volume of transactions that's an overwhelming amount of evidence to show defend still more than five thousand dollars in any one year period which is what the indictment  there are no further questions on that issue i'm happy to turn to the forfeiture and loss calculation issue for that issue this report probably concluded that the defendants pity make method of accounting did not fall within the exemption under subsection c the court gave credence to the statutory language as it should have that only bona fide salary or expenses paid in the usual course of this are exempted and there was nothing usual or normal about how the defendant took money from this bank account and it was the way it was clearly way us outside acceptable commercial or business practices that congress intended to exempt the district court properly apply that statute in determining by a preponderance of the of a dense that the transactions were proceeds and available for forfeiture does your court further properly apply the statute in determining what qualified for a loss in saying that it was no less than five hundred and fifty thousand and determining what she owed and restitution to the i r s when you look at this i allas own statements as to the salary issue her own statements prove that she did not take bonafide was not paid in the usual course of business and that was by her own design her personal income tax filings indicate she did not receive any salary from give us this day she did not claim any of that money and the salary on her personal income taxes whatsoever and so when it was in that to advantageous for her to claim that she did not have any income from give us the state so she could avoid taxes she took it and now isn't when it's advantageous for her to say that she did have a salary and was paid a salary in the usual course of business she is reversing course and the government posits that she cannot have it both ways i want to point out the defendant raises a question about whether the district court asks the right question in its analysis already agrees that we can only forfeit proceeds in this case that is clear but what is proceeds turns on the violation and so that turns on an interpretation of six hundred and sixty six dollars proceeds equals money obtained in violation of the compression of connection so and sixty six in one and considered six hundred and sixty six years as the government has demonstrated the judgment sought otherwise represents the money defendant obtained as proceeds of her convictions under six hundred and sixty six and it goes through reasons to support it