excuse me as this court knows we have four issues before it i'll probably only talk about three obviously i'm not waiving anything but i will try to put my time to its best use mr carden as i said as the court knows this big go through a jury trial but mr carden is quite insistent in his first primary and principal issue is that there was insufficient evidence to convict him now this was a long trial and as the court knows it's had to do with fraud but and the course the standard view is very clear as maybe somewhat different from the previous case we know what the standard of review is and it's a difficult one a very difficult one but he says that there is no rational  of all the elements in this case and in particular he says that there is no evidence or data there's no sufficient evidence to find that number one there was a scheme and then number two which could combine a couple of is a holistic view obvious like and what he says under this context the jury just simply cannot rationally find all these elements not well what if he comes in mr carden comes in from a  different employment and he comes in with with new responsibilities that's all before the jury it is yes it is all for that enough to say the jury came to the wrong conclusion not and there has to be something that just a juror couldn't believe well let's broaden this we're having is there anything like that here yes well mr carden certainly believes that any are you see there's a number of things the first thing i would probably and i'll maybe i'll and what she says i think is very unlikely she says that mr carden is very confident her word is cocky and he explains how he approached all all these matters and was very confident what he did he that she is using when he thinks he knows everything in fact i think she even says that so i would start with that here some by the doesn't find any he doesn't believe he's done anything wrong any sitting there and explaining it to the logic who certainly has a great different employment he had not done these inspections before or classifications and he came into a program that was already set up by us and and they had a particular type of model is called the transitional doing model where you try to get these employees you know back into work as soon as possible know that in of itself does not dictating the decisions and i'm not arguing that it does what i'm saying is it sets up an intellectual mark in that he's gone into a model that he is just implementing from s and and plus not only testing not had this experience before and not only is he quite within a model and existing model that was developed by his employer but he has certain individuals that are exercising oversight do have a lot of experience in this area that would be mr chen and whoever the occupational physician who is trained mr carden is installed in this program this pretty set up program with the oversight of these two knowledgeable individuals there are two audits and we know that of course is the victim in this op in this particular case audience actually find that there's no problem there's no problem in the way that this particular program is being implemented and in particular mr carton's contribution to it and in fact one of those audits had to do with complaints that was raised by ms cash and now miss cashing the ends up being a witness in this particular case and testifying for the government but wh further and i think this will kind of wrap up this particular issue and there may be exceptions let me just say they're out of front but and this court knows and as these poor long clarkson the there was a lot of witnesses there was a few exceptions the facts are correctly related he'll talk about some like slipping and falling but then he will conclude well and this of course gets to the gist of the problem  at the time he testified also at trial and there were other end of it there was at least one individual i think that testified to this fact that he all along fault that there was a difference in those two standards now as i look at as an attorney in retrospect frankly you know in all candor i don't see a great difference there could be exceptions i don't think there would be many but he certainly had that and when you look at all of that in this court exercising it issue is is the point of counsel and to the government's credit the government brought up a concern that it had because counsel for mr carden was being paid for by his conflict of interest between the parties not not surprising amount particularly surprising thing but what mr carden argues is that what it failed to do or in failing to relieve  this particular council at the time when the government followed the motion and when judge carter found that there was a probability that there would be a conflict of interest is that it set up this case for failure because as i've explained or hopefully explain to this court when you one month that the circumstances can only be up this case can only be understood in his overall context of a strategy by s and w now mr carden is not saying that necessarily that s you had any criminal intent but what what he is saying is that in failing to relieve counsel we'll never know those aspects of the case that might show that our particular show just h you know the s and muse approach to this were never explored and that something he thought he thinks that was to his was to his detriment and then finally a public talk about just the the third issue of four and that is even in law died of that whole situation and even if the court finds that those first two issues do not have merit he further argues that his sin it was an unreadable now i will tell you that the guidelines for this particular these offenses were seventy eight to ninety seven months judge call your pick the lower end of the guideline right into it was seventy eight  and but nevertheless he believes that under the circumstances of having no criminal record which was noted i mean it's not that was overlooked that was obviously the p s r but taking putting the proper emphasis with his background and with all the three fifty three factors especially in the sense that even if one finds culpability that this particular individual did not gain financially and that was a finding by judge hall which is noted in my i see that my time is up is there are questions that your brief has about ninety pages of description yes are these these various determinations yes you identify wanted two of them that would help us the no that was not doesn't happen very often but it appears that mr chen changed the classification from a reportable to yes or any other questions really not thank you thank you so stated that it would be a record will injury and then it was later changed of course peter chin was the defendant's bloss but in even conceding assuming for the sake of argument that it was peter chain who changed  it without any input from the defendant that would be one out of eighty that would have been changed by someone else i think the more gray just examples the one that is my favorite is the last one i include randy harris is a gentleman who had fallen he was eight stories he was a big man three hundred pounds they put him on one of those back boards lowered him down eight stories carried him over to the safety trainer mr carden saw him and this is mr harris testifying mr carden asked him to walk and he said i can't walk they take him to his car carbs as we'll deal with it comes in a more still got the same broken leg and mr carden says well it happened after work  was the last one we didn't include two thousand and six having said that i think one of the reasons we called for do you have injured defense seems to be workers and then for you what we call a dead files people that were not there to testify but we had agent thomas testify to them and they were from all of the nuclear power plants and all of the fiscal year and in virtually every one of those and even the one that mr chiles talks about mr lacy i think may have been a grinder accident but there were there are numerous cases where these people were always injured on the job this is hard heavy construction work as the corps can imagine nuclear power plant construction is probably some of the  most industrial strength construction going on and it just is a sad fact of life under the osha standard or under any standard people are going to get injured after have zero zero defects or zero injuries in order to get the bonus there was a different contract praise be to t b a your honor they change a contract every year and it's a percentage of things easier for you yes sir that's exactly right they want to make it very easy for work and underappreciated under appreciated a usaid tried his case but the contracts were different we put the contracts in there was a percentage generally of what you could either have as a last time accident which is the more serious or agree just accident or a record injury which is the injury that basically is anything beyond first date if you have a piece of metal in your eyes and you have to have it how many typically for the average one of these tracks you get have a few injuries yes or it's a percentage that some of the wrong last time may have precluded them say at sequoia or watts bar at browns ferry which was the restart the new construction of the dormant nuclear power plant they would have been permitted to help move more then say one last time injury but last time injuries were pretty serious on the ocean standard i think the big issue in this case is that t v s and stone and webster have incentivized safety reporting but i just thought there was a little tension between the idea that the contractors thought that ciro was a possibility and you're saying this is heavy industry there after be accidents well and big and the contractors accept that and we're only talking about the safety bonus they're getting paid regardless they're getting there about the safety yes sir and safety bonus it's actually possible oh absolutely it is possible to make but those zero injury situations it's possible to manage and get zero injuries this possible to get zero last time i think for quotables they would be given five or ten i'm sorry i apologize to your on now it's the libel was popped on as to what the court was asking me they could be given a record  injuries i think i'm one of the contracts or two of the contracts not been for the lesser construction outages they were giving zero or one last time injuries but for clearly injuries the number would been far higher twenty something like that people get caught to hide an injury but virtually every time he would say the mechanisms mechanism of injury does not suggest that the injury is work related when in fact that's why we called for the live witnesses to come in and say no i broke my hand drilling something i i grabbed this chain fall a pulley and it pulled my arm out of socket and i'm you know walked over to the safety trailer and mr carden treated it with ice and ibuprofen and then later on they have a hundred thousand dollars worth of surgery for which is self insured and a worker's comp is paying for and mr carden is fully aware of this because we have all of these e mails and letters between him and the for workers purposes the same is as whatever the standard is osha standard nineteen zero four your honor it's very very similar and virtually the same as far as as mr carden would be concerned it's people testify and they all stated the same that the sit the standards are very similar it's a work related injury can happen in the parking lot things like that but with respect to the sufficiency evidence the evidence showed that mr  repeatedly lied about the mechanism of injury not the injury itself but what caused the injury and you always want to point out mr harris that was the most absurd one to me and that's why i say go for last in the brief but we also had forty of the other fog there h as he would always say a guy's trying to hold back a five hundred page on buggy loaded with this heavy equipment and gets a honey and mr carden says oh no harm is not caused by physical exertion and even testified to that in trial room so many of those are are present in the record and we did not recount them all as i stated and it's mr charles has done an excellent job of recounting virtually every gantry we felt like we wanted to make our brief less than one hundred twenty nine pages long with respect he was he had sufficient awareness that the safety was tied to the osha standard when we asked for a lead information he forward it to fellow named dave hastie who worked for t b a who for to me agent holloway we found the contracts in his desk drawer were showing what the safety fee was what the percentage was and he was also copied on some e mails the fellow named les collingwo testified at trial and mr carden told him that we were going to have any record of blues on this job in other words any injuries that were beyond first date in collingwood who'd been thirty five years in the construction business said you're crazy there's federal money time to that you're going to go to prison but this all came out of trial when mr carter denied that but there's certainly within the province of the jury to believe the witnesses in a rational juror could have found him guilty with respect to that mr card saying well the injury happened at home then you would think oh everything's ok but then when you go out and talk to rainy harris and say after you fail in the head to carry down eight stories did you break your ankle at home that night and he starts laughing you know that somebody is cooking the books and that somebody was mr karr and that was a scheme to defraud idea that it's really his peers who were it all ties into the question of whether there was a conflict that counts it does tie into that question your honor and  we saw this contract where stone webster shaw group was reimbursing mr gardner for his representation and we bring it to judge collars attention we had a lengthy hearing on it and we were sufficiently concerned that the most the biggest thing i was concerned about that we were going to be in the middle of this story week trial and judge carr was going to find out about it and realize that i hadn't brought it to his attention but the second biggest thing i was concerned about was the fact that i didn't want mr karnik come back later and say i had conflicted counsel because he was being paid by my employer who i wanted to dump on i wanted to put everything on him judge collier grilled if it turns out bad i don't want you are you going to come back here and complain and he says well ah can't promise i won't complain but i understand the choices and i've made my choice i don't believe that mr gardner was indeed conflicted he was being paid by stone and webster but he was not answering to stone and webster in the sense that he was not coordinating with stone and webster or taking his lead from them in fact the testimony at trial established try to establish that peter chan or dr goff the people who were either contracting with stone webster or employed by stone webster more responsible for some of these if i think that sufficiently robust to claim that indicted or if you're sued your employer will in fact pay for your lawyer i've never had such a job but my point is hopefully i will need that but my point is that judge collier found that there common in the in that was a thing about the integrity of the judicial process he said that these are contracts that should be favored and we should encourage employers to do that so i don't believe that there was really any actual conflict there was a potential conflict that we noticed government officials in their individual capacity sometimes do why our office i've sort of consent documentation for that as well there's no question no absolutely we would as with respect to the last issue we address a point when it came to the last issue the sentence was seventy eight months it was seventy eight to ninety seven was a guideline range and mr carr when i told the district court this mr carden had much to commend to himself he had been a working man his entire life and indeed as what mr chiles says i'm almost out of time it was from mr shiela says mr carden didn't make a lot of money on this deal although he did double his salary at the time he worked at stone and webster and he got a slight bonus i think twelve hundred fifty dollars but recently fell in a shipyard i think in portsmouth new hampshire didn't want to work that day and he set fire to a submarine thinking he could get off that day in the submarine burn completely in the navy's out six hundred million dollars so the motivation was slight for the shipyard worker and the motivation was for mr carden was greater than that he knew that he was moving up the corporate ladder we put proof on this  trial he testified to this yes i was trying to get ahead and he built himself as the ocean expert as the recordable expert i'm going to keep your recordable dam which he did he was right about that but he did it fortunately so even though he was not the one who owned all the money i think judge collier looked at the ultimate harm in this case which was significant it invalidated up much data from the safety folks the safety engineers justice act and that's through our service to your client and to the system at large we want to thank you for that we are very much welcome and if i may respond i hope i did not in i'm quite serious about this or took this brief a