gallon represent the may please the court opposing counsel there are three issues or obstacles that i think i should address the first is the fact there's a plea guilty in this case the second is that there is an appellate waiver in this case and the third is i'm raising ineffective assistance of counsel on direct appeal and with the courts from  and try and explain as best i can in terms of the plea of guilty probably the better way to proceed in this case would have been to attempt to withdraw the  in judge frost's courtroom puts the defendant under oath and we rule levon colloquy and ask a number of questions there was some concern as to what would be the repercussions kisner was to withdraw her plea whether or not the government would then attempt to charge her with perjury for saying those things under oath so in terms of whether or not that was  way for her to challenge her conviction and her sentence we didn't believe it would be over we do understand at this point on direct appeal that creates a major obstacle to rel terms of the only thing you can challenge on appeal is is the ineffective assistance of counsel or prosecutorial misconduct right that's gross that's correct and that actually goes into the second major obstacle that we have in this direct appeal is ineffective assistance of counsel the third and probably biggest obstacle is the fact that this may be i'm not sure i'm ready to concede that point but this may be something that's better raised in the twenty to fifty five motion to the core i think in the three claims that we have raised  that you can glean from the record enough to make a ruling on the merits in terms of the first claim the statute of limitations claim which i will admit is a novel one in terms of conspiracy but our argument if you looked at the indictment and if you look at the change of plea where they discuss when these things occur you will see that it's past the five year statute of limitation it's a conspiracy this charge is don't you look at the last the date of the last overt act and wasn't that within the five years statute of limitation i believe the last act  was two thousand and eight our argument is that this is a stand alone count not part of the conspiracy or if it was part of the conspiracy and in two thousand and six that conspiracy ended in two thousand six well that is a relates to that particular property we would argue that it ended when the check from that sale was deposited into mr kiss ners account why wasn't the terror gland property in two thousand and eight a part of the and within the statute i think that during the whole playing with and because it was the last overt act well in terms of furthering the conspiracy there isn't anything that is in the kid from the indictment that this in in terms of the double jeopardy argument and the twenty to fifty five question we again you can look at the first indictment and it's the count one and count sixteen of the second superseding indictment and you'll see that they're the same we believe that based on where i thought there was the florida conspiracy and the ohio conspiracy and they are two separate conspiracy's you're saying it's double jeopardy why are they not two separate conspiracies because they're out of the same agreement i mean if we look at what the government is alleging that there is one agreement  pursuant to the cental case and that's what you have to look at the it lets some factors list those five factors but if you look at the case carefully they talk about the fact that what is the agreement  to commit a crime which is two doesn't matter that different people are involved in the different conspiracies in that they have a different working mechanical nature to how the conspiracy worked in that they are in different locations isn't that three of the five doctors well i think there are a majority of the same people who are involved and it is true that there are the florida people are not distinct from the ohio whether there are some of the same individuals involved in this defendant but but aren't and aren't the players so to speak in the conspiracy themselves in different individuals in florida from those in ohio yes in terms of this selective prosecution argument that may be something that that would be better served in a twenty to fifty five are you asking us not to resolve that now yes that there would seem to make more sense in terms of what is in the record what we could get into the record pursuant to a application  for habeas corpus under twenty fifty five we do believe that the first two claims in our appeal can be resolved from the rock of the chair before you do you have an equal protection kleinman relative to  protected status i think we deal with i don't i don't think that he you know what that is can you tell me what th well i certainly think that not now without developing the record more i mean i think as i said i think it's better based on what i have hear from the record i couldn't i couldn't say that it's i don't mean to avoid your question and i just i just think it's it's something that when you ask us not to take it up then thank you and in terms of the merits  of the first two claims i think that if you look at the conspiracy sorry not the conspiracy but the stache the limitations issue  would or can see that it is a somewhat novel argument that this we argue that the conspiracy ends when the check goes into the bank and is therefore separate from other so i think we have to look at the strickland analysis and whether or not it fell below that standard and whether or not she was prejudiced and whether or not she would have entered that plea should that motion of been meritorious and i think that that goes for both of the the the claims regarding the record the double jeopardy claim and the statute of limitations claim i was just looking at the district court docket scene and i think you are listed as counsel in the district court are were you counsel in the district court i was counsel  and effective assistance claim is ripe for this court's consideration and then i'll discuss a few remaining points related to the merits of the government recognizes that this court generally defers consideration of ineffective assistance claims until the post conviction stage to allow for factual development and here the record is not sufficiently developed such that kisner can prevail under strickland the record lacks any evidence of council's decision making process in any evidence of prejudice and although it's impossible for kisner to prevail under the current record the court may find that the record is sufficiently developed to reject her claim and there are several factors here that might counsel in favor of that approach first kisner herself has admitted that the record is sufficiently developed at least to address two of those claims second kisner is ineffective assistance arguments fail on their face the motions alleges counsel should have filed had no chance of success and no additional fact finding will change that conclusion and third the district court already considered and rejected as meritless the same  claims that kisner raises here today judge a more strict were considered the statute of limitations yes judge moore you noted that counsel did file an appearance in the district court and the appellant actually filed a motion for appeal bond before judge frost and in that motion essentially argued or raised the same arguments that counsel raises before this court here today and i do think that it's notable that the district court rejected as meritless all of those claims to address the statute of your opponents focusing us now on the statue of limitations in the double jeopardy claim so on the statute of limitations he recognized that he had a novel is the conspiracy section for conspiracy to commit money laundering and i'd also like to address the overt act argument it is true that kisner admitted both in her plea and sentencing that she engaged in the ohio kickback conspiracy through april two thousand and eight you referenced a terry glenn transaction and that's true but conspiracy to commit money laundering does not require proof of an overt act and so in the indictment the government didn't need to allege an overt act and that's exactly why it referenced one example of conspiracy conduct but it did not endeavor to include an exhaustive list of o vert acts so again the june twenty two thousand and twelve indictment clearly fell within the five year statute of limitations for conspiracy claims so do you what happened in the five year period that you rely  on any number of transactions which are included in the p s r and they're also referred to specifically at sentencing and indeed the change of plea hearing the terry glenn transaction closed in april of two when he considered this claim but under a different standard of course found that the evidence that he had heard through four days of trial in addition to throughout the course of the case showed that the ohio kickback conspiracy went through at least april two thousand and eight conspiracy to commit fraud subjected her to multiple punishments for the same crime as i think judge strange point pointed out the ohio kickback conspiracy in the florida kickback conspiracy were completely different different time frames different players different transactions different locations different schemes and different overarching agreements and again judge frost agreed and he found that there was absolutely no basis for a double jeopardy argument so it would be possible for somebody to have one conspiracy that operates in both florida and ohio but your point is that this was not that type of that's racial because of the other factors so even if there is one agreement but you debate whether there was even only one agreement that's correct your honor i think the government would submit that there were two completely separate criminal agreements here although the course of  there were different individuals who were sort of heading up these respective conspiracies and so we would maintain that the conspiracies will completely separate both from the players and the schemes to the agreements if there are no further questions the government respectfully request that the court affirmed the judgment of the district court thank  submitted with the court called the remaining cases