revealed that he said i don't the part i consider factors and the government agreed with this approach so i believe that the first there cited by the government in this case was not preserved by the to review the exhibits in its entirety to come up with some kind of tax law the government didn't guy the judge of all when the court clearly indicated that he was now uncomfortable with the decision  which the government proceeded the first time summarizing evidence that was found in a government investigation that was not presented at trial which was then challenge by the defense isn't sufficient it's no longer compliant with that term reliable estimate so that what the government has to do is more specifically prove not not to the penny what that tax loss would have been but to show that particular issue in the case of did the government attempt to do that at all during the course of the trial they did not and in fact the summary broke down into four categories in those categories really relied much more heavily on government investigation that was not the subject  trial testimony but independent investigation then the trial testimony and the government still has not made any attempt to go through the trial record and set out what actual tax loss was proven at trial and now it's true that the  weekly and neither the flowers the remaining money went from where it came from it's that i agree with your honor that it would be unreasonable to expect the government to prove to the penny what the specific tax loss was for every single customer however what we're looking at we're suggesting should be required what we believe the case law does requires that that the government must at least prove that specific account holders were derelict in their obligation to pay taxes there are nine hundred members of c t a and it was not proven and i for philosophical reasons as opposed to economic reasons i'm not denying that there were people who had economic motivations and that's outside the system and not taxed it's time for some of them but the question really is how do we assess which of those nine hundred that applies to and the argument that we're making is that the government can't just assume make the assumption that that is true across the board that there has to be some sort of affirmative join with respect to  really that he was correct in applying the clear and convincing standard we're not waiving argument with respect to the beyond a reasonable doubt standard it is possible that the supreme court is going to determine that in fact the and reasonable doubt is the appropriate that propounder it was not appropriate the argument that we have not yet addressed and we think it's an important one is that the court's decision to increase mr flowers sentence from the top of the range that you found the range that he to reverse the trial court's finding on that basis alone simply to find that that increase from twenty seven to that he properly lived outside the system and had no tax liability my client led an extraordinary voluntary poverty listens to children and i think he's a he's a living demonstration of the fact that the please the court my name is karen cornell herring on behalf of the united states bronner's judge king made two serious errors and sentencing the defendants in this case to require the government to prove tax loss by clear and convincing second time i do not know why to back up that and i would prefer not to speculate on the judge's motives what i can tell you is that the first time around the government for the three defendants here the government had done a calculation and created a chart for the professional that chart was included in the p s r that chart broke down by years deposit of certain members and their tax filing history the court may remember that there were approximately nine hundred clients in c p a and that over the life of the warehouse bank they deposited one hundred eighty six million they did not file any tax returns the government reasonably determined that those that thirty three million dollars constituted the tax bill and that the tax loss from just those particular people was six million dollars income was one million one hundred eighty six additionally the government convicted for the three account hold of that they there was evidence that mr anderson i believe ran thousand dollars c p a itself had a tax liability from its sales and its other activities of seventy one so if you add all of that the other we have already there are almost two million dollars in fact richard flowers in his brief in yesterday when the team was concerned about the reliability of the evidence on tax loss to the government offer to produce or just point to the record where the of that we did make general reference and we did civically pointed the court to the information in the original p s or the government had no idea that the court was concerned about the reliability of that evidence when the government finished making its argument at the sentencing hearing recognizing that the court had already had a sentencing hearing that this court had already said five million dollars was reasonable and that judge king presided over the originals the government basically made an argument that here's why we think you want to impose the th particular judge that at the end of the gun the presentation you have any other information fact or evidence to offer at this time and the government said no your honor then cause a prosecution if you think that's all the court did not state of the government because if you don't say anything else i'm going to find that attack last is your old he didn't say i'm concerned that my aboriginal fighting by clear and convincing evidence that the tax laws was five million dollars that i'm worried about that that i'm not going to use that number this time because i'm concerned that that evidence might of you're liable what he did was he allowed the government to proceed to make its argument about the next defendant and again ask this question do you have any further evidence government said no the court again did not say because if you don't say anything else i'm going to use your old you proposal out of the defendant to proceed and then he said the government didn't put on any evidence today so i'm finding zero tax loss the government said but your honor we gave you the chart we talk about the information that we referred to with the previous that is saying we refer generally to the evidence the trial and the court said to the government i'm not looking for argument now you had your chance and you didn't put on any evidence did you ask me to take additional notice of the evidence that was entered it for a while the government said no your honor we didn't ask you to take you just will notice we didn't think we needed to put additional evidence on a trial you sat through the trial you the judge judge king himself recognized during the sentencing he a was an organization that operated for many years and excuse me allowed many people to evade their taxes the judge had sat through the trial and heard about the shredding of documents the using of number government did not it's correct that the government did not do another charge the government did not lay out for the court every single piece of evidence that would have supported that the government did attempt later on when the court said well i'm going to use your own because i think that's a reliable record attempt of the government attempted to argue to the court by your honor you're not even including the tax liability of the defendants that were convicted at trial of tax evasion and he didn't want to hear it so the government did not have an opportunity to put on and new evidence or a hearing which frankly i do not know why we would have needed one in the first instance the court required us to find to prove the in the kite flying calculation right here that you would lose that is correct your honor and we don't have to any further do guideline grain to determine the amount of the tax loss and there is absolutely no way that c p a resulted in  also address the question of harmless the district or himself recognized during the sentencing hearing that this was extremely serious conduct this conduct lasted for more than a decade almost fifteen years system slowly don't cold cold turkey slowly start filing your tax returns report less and less money then no income but instead of imposing a severe a substantial on these defendants district court dorothy flowers second in command heat the sense of there is absolutely no way even after booker and looking at all of the factors in thirty by fifty three dorothy flowers when it said that even if i could use the higher number i would still depart now we don't know for sure whether he would depart to the exact same level and give her probation because in the original sentencing he departed the thirteen levels and gave her twelve twelve months to that but in any event there are several factors that the court discussed when he granted the departures in the first situation and none of those we believe either under the guideline advertiser guideline range because he gave richard plowers an enhancement for his role in the offense for levels for being a leader organizer and he refused to give dorothy any additional increase or  and that decision was clearly proper dorothy was not a minimal or minor part that she was substantially involved so she couldn't qualify for a downward adjustment and we don't believe that if you can't qualify we believe that she can't qualify for a downward adjust a limited purpose which was to change dorothy flowers stephens give the sentence of richard flowers change the court i believe considered an anderson one the ground the tax lost is five ten million dollars that's a lot of the case then as i point out on page fourteen of my brief the district court also said that it would not change its mind with respect to the downward departures eighteen months instead of the range you determined resentencing and it's fixed but it's clear i think from the record that the two new reasons which i did for imposing this time instead of a year and a day know by that reasoning advisory i think the most significant change is that it reaffirmed the inappropriateness of the burden shifting in i think i believe that the way that calculation was done under the reasonable estimate the interpretation of what the term reasonable  not your long way over your i want to see if your co counsel just has anything she wants to offer ok thank you matt it will be