this case involves a clean water act action and we bring to claims the government range to claims i'd like to discuss one of each and i think are related to the first i like to talk about the indictment it's strong and the fact that the government saw fit to move for dismissal under rule forty eight after i had made a motion on the rule twenty nine for dismissal of the entire case is based on a lack of proof brought forward against the  it's not unusual in a drug case a bank fraud case of multiple the found in the case to have defend in smith's johnson brown before the court it happens on occasion that mr brown reaches some disposition with the government  either just before the trial or very the trial sometimes and there's a jury instruction that says mr brown's case has been disposed of and you are not to take that into consideration with respect to the determination of guilt or innocence of the remaining definitive before you now that's not the case here because the introductory paragraphs of this indictment identify mister an awful as an individual it identifies the corporation and the fact that timothy law cannot fill an advanced x and then x defendants plural and i understand that it says defend answer as a caption but when you get to the body of to the corporation that in the very least the outcome will be here that he is not seen by the jury as a matter of evidence he's thinking it's going to be dumped on the corporation  honor respectfully you know circumstances alter cases arguments to rise in the context of a trial it's ongoing it depends on how things are working out the government did not offer it was it spurred and chopped off her evidence of proof against the corporation it's failed to come forward with that by its own acknowledgement if that's the case we're going to take advantage of that and argue the case appropriately but have the government come forward with the evidence of corporate existence what i'm saying is a matter of prejudice here is that the plane would have been squarely laid on the shoulders of the corporation and not on the shoulders of mr can now many cases similar to this  consider that you would have a reason for going to trial here it's not a completely silly interpretation of this indictment to believe that the corporation is a player the claim could be squarely laid on the shoulders of the corporation an guidelines under those circumstances that he was acting in a business capacity throughout the entire period and that he's willing as a businessman to undertake repairs on his boat to pay for the clean up and so on and  good morning i please the court matthew sanders for the united states this is a very straightforward case involving a criminal defendants conviction for knowingly discharging oil and for failing to report to oil discharges into flathead lake montana the court seems interested and since my posing counsel addressed it i'll briefly address the issue of the constructive amendment of the indictment dismissal of the charges against the defense corporation did not constructively amend the indictment because is plain from the face of the indictment as the court was suggesting that a that the defendant and and his corporation were in fact being charged a separate persons or entity it's under the clean water act there is no evidence whatsoever anywhere to be found in the indictment and the defendant doesn't point to any to suggest that in fact they were being charged as one entity and at the dismissal of the charges against the corporation in any way affected the charges against the defendant this is in fact evidenced by the fact that actually he defended himself as an individual in addition because the defendants was on notice that he was being in fact indicted as an individual he had an adequate opportunity to prepare a defense to the charges well i mean i wasn't the trial counsel so well i'll try to answer that as best i can it is stars as far as i understand the government was interested in charging both the defendant as an individual and his corporation to the extent that both may have been involved in these crime had obtained any information regarding what i understand that the government was waiting for papers from the state of montana to confirm the existence of the corporation but it didn't obtain the papers and at the at the end of the trial realized that something like that i'd like to briefly address the judicial admission issue the only two points i'd like to make here is that the government could not have judicially admitted a lower reporting standard for discharge or woods baby but because he reported it to somebody but the government very carefully then added the agency to which you didn't report the discharge was not the proper official agency to report that to and under the clean water it's very clear and the appropriate regulation is very clear clear which agency the defendant must report second and even if the government could have judicially admitted a lower standard it did not do so here a judicial admission  district court clearly erred when it granted the defendant an adjustment for his alleged acceptance of responsibility yes yes unless of course for the questions about the defendant's issues this is true for two reasons first and it's it absolutely does not foreclose that that's very true united states mechanic case that we pointed out in our brief and that case this court reversed the district court's refusal to grant the defendant a reduction for well i would submit that not only was he not charged that way but the but the evidence suggests that in fact he was not conceiving of this defense that way if you read the transcript it's clear that he understood he was being indicted that he had been indicted and was being tried as an individual of the evidence that all of the things that he's talked about in his testimony went to the factual elements of his own individual guilt talking about his mental state talking about what facts he was allegedly unaware of things like that there was nothing that he offered to suggest that in fact the corporation was guilty or that somehow he was acting in the capacity as an agent of the corporation so i would that that doesn't really apply here and doesn't make sense given the evidence it's so i think the point is that this isn't one of those rare cases in which a defendant can go to trial and still receive the acceptance of responsibility reduction moreover the defendant here never accepted responsibility for the crimes of which he was convicted the knowing discharge of oil and the failure to report oil destructions what did he do to make a  statement what mr cain awful has said that something was i didn't knowingly or intentionally discharge anything into flathead lake it was an accident i'm responsible only for the cleanup the district court said those statements are going to get you the adjustment and then the defendant approached the lectern and gave what the judge found was an emotional statement but i'll read an entire statement is very short your honor i accept responsibility for the cleanup i know that it was my boat that discharged i don't accept the fact that knowingly deliberately or intentionally discharging if that's what you mean i want to pay for everything i don't want the taxpayers or anybody else to pay for my burden of life so i mean i don't understand i've seen this done a five o'clock news that i wanted to pay for it that i'm responsible because it is my boat but i didn't knowingly or deliberately discharged anything into slight head like that is at best a limited except in school for the consequences of his actions an trial as sentencing said what you've done here is not going to get you the adjustment only after the defendant approached the left turn and gave the statement that i just read the did the district court change its mind and i would submit that there was nothing in that statement in fact quite the opposite to suggest that suddenly the defendant should be given the adjustment that is the district court has the record page five sixty six said that the statements he made at sentencing and presumably accounting for all of his conduct prior to the trial did not was not were not sufficient to get to earn hand the adjustments for acceptance responsibility and the only thing upon which the district court based its change in position was this statement in which the defendants that i didn't knowingly do anything when i read that or maybe i'm wrong is that he was accepting responsibility for what happened for all the far but i think that given given the statements that he has in his commute his going to trial and contesting the factual elements of the charges against him which this court has stated except in very rare situations and it's a defendant is not entitle to the adjustment in a case where he does that and then after he does that he actually completely contests the fashion elements of the charges against him and refuses to accept responsibility th the acceptance of responsibility issue as well ok if the court does not reverse the district court on the acceptance of responsibility issue it would then reach the are the government's second is a community confinement issue and in response to your question if the defendant did not get the adjustment for acceptance of responsibility his sentence would be governed by his own d which would provide him with a sense of twelve to eighteen months and one a sense of imprisonment or to a sentence of imprisonment that substitutes community confinement for home detention quote provided that at least one half of the minimum term is satisfied by imprisonment  court in united states he lattimer held that community confinement and imprisonment are not substitutes and indicated that if the district court ops for a split sentence it cannot impose a full sentence in a community treatment center it must impose at least half prison time violation of the separation of powers but the government didn't didn't articulate as we're doing here on asa feel the objection that the sensing guidelines in this court case law require in fact that community confinement or or that honor you have the authority to impose a sense of community confinement and home detention you must impose at least half prison time it didn't it's united states for latimer but every in addition every other court of appeals to address this issue including courts which have directly addressed feisty one point one have held that in fact you have to have at least half a dozen time you can't substitute community confinement for that required one half term of imprison with every defendant and you are honest well not in there that he says things that fairly substantial burn as a youngster around the age of fourteen years old and he bears the physical scars of that and that this man is in society he's that he's a fully functioning businessman he works in seattle here for a time to learn how to operate a crane he's come a long way since that burn accident which was pretty substantial he lives in society and accident and he has that tentative in this to him he thinks and sometimes you know people are ready to set upon that they don't lie and he a very warm and engaging individual once you get s incurred by the coast guard to clean up this mess the defendant's involvement in the cleanup with mitigate his responsibility then involvement is taken into account the above figures the coast guard will directly attempt to collect you will versus three island