appeal and that's the statute of limitations and the sufficiency of the evidence essentially the government proved a little too little too late and mr bennett's case if you look at the evidence that connects mr bennett to the mailing of the check of the march sixteenth check there was a three day gap between the time to check was printed and the time to check ended up in a bank account that belongs to business there's nothing that connects mr bennett to the mailbox to the deposit slip there was never any of the positive there was never any evidence introduced to the trial level who received the char where it was received who was in charge of the mailbox what was the routine practice of the business receiving the check who went to the mailbox on a deal a business where there was evidence of the routine practice of standing right there  was evidence of the practice of sending two months prior and three months after the fact there was or some reason to believe it would have changed in the you know when so some routines did have to change we don't know which ones because she was not there to testify about that i don't believe so your honor i did not see that on the government's brief that i got out of the government read them study the those were anything more than a mere banking transactions and by that extension that argument means as long as you have any control over the money indefinitely the statute of limitations never runs out there they were sham for the purposes of the that these phony invoices were transmitted from these four companies the evidence by looking at the record that ma fortean voices from these companies that were fraudulent and you're saying that because they may have had some legitimacy for some purposes they couldn't be s companies for the purpose of this fraud and conspiracy no your honor i'm saying that this particular business was a legitimate business and these people these are their employee that we're talking about well he was the president of the company around and so and the employees to anyone other than he personally who acted on behalf of the companies in making the pot deposit was doing so is his agent so whether they're unknowing participant in the conspiracy or an inadvertant the sister of the conspiracy i don't see how that detract from the relevance of capturing mr bennett capturing these but i have a question on your letter about the impact of mr holmes yes that doesn't affect count one i believe it does after submitted a twenty agent letter which again is very limited i looked at the your thank you your honor daniel me please the court on behalf of mrs jennifer holden i like to focus my remarks on the prejudice that arose from the failure to sever her from her the result for her would have been different had these servers been granted what the government had to prove against mrs holden was a tax evasion and specifically that she had knowledge that the money that had been received input in the into the bank accounts was taxable income years and i guess i guess i seems to me critical to your argument is that none of the background of fraud background would have been admissible the same in the same quantity or quantity relationship will the quantity was very substantial if the government could following your your logic your honor if the if the jury were told this  money that was produced by the fraud from mrs holden's husband to establish that it was in fact not a gift in here to his or some other non taxable income i i think you have a point there but in this thought there was a careful instructions there's a separate in there were not careful instructions no limiting instructions there were instructions given that each defendant has to be considered separately each count has to be considered separately and the evidence government i suspect well in this case there was no evidence about what her knowledge was the jury was permitted to speculate that merely because she was married to the fraudster sitting next to her at counsel table that she was more likely than not to have had knowledge of the fraud if she has no to the fraud that you're saying that the instruction was the jury for that there was no instruction the told them they had to infer that but there was no instruction the prevented them from inferring  because that's a rank a speculation that we wouldn't even know that it's fact election that the jury made that speculating well when we know that the district court did it the district jury was properly instructed on the crime speculating not supported by the evidence and that's the only reason she was convicted that you are right well both the government and the district court engaged in the same speculation your honor i don't think we can expect anything better from the jury and  in this case with the amount of fraud and the fact of the judge the district court specifically said it was not going to do as this court has repeatedly encouraged telling the jury what evidence could not be used against this defendant or c relevant evidence well that's where the discord abused question because that was not relevant to her tax evasion i agree it was relevant to mr holden's tax evasion because he had knowledge of it therefore he knew he had the guilty mind in the she did not know what's in it at least relevant to the extent that the government had to prove that it was taxable income and in the end that to the accident your own right think it would be appropriate for the jury to be informed here's here here's here's where the money came from or in a separate trial the money was produces wire fraud from emitted is fraud so essentially all the fraud evidence comes in it comes in but the district court can tell the jury and should tell the jury that you cannot consider this fraud as evidence of her knowledge of her willfulness because she didn't know about and there is where the court should have done as this court has as encourage to prevent the prejudice from occur which is that judge said i can't break it down on a witness by witness basis i can't instruct in that way but mr gertz if you have want to come up with some final instructions that you think are appropriate limiting instructions please do so and that 's referenced in that exchange around three twelve to three fifteen of the trial transcript and tellingly mr kurtz never came back with any sort of additional instructions on the final instructions and in fact  after the instructions were finalized the instructions that were given to the jury were finalized everyone had an opportunity to object to that the different instructions we did there was a charge conference at which people objected and the final instructions that went to the jury  was given an opportunity to say do you have anything else do you have any additional information do you object and he said no and so it's understandable that he didn't show now you're in the room in this instruction just a i would welcome an instruction and finally if for the final instructions if you think something is appropriate and mr burton grows propose nothing and in fact did not object to the final instructions that went to the jury that i think it is is critical in terms of the complaints now that there were somehow an inability on the part of the jury to compartmentalize that evidence it's clear based on the very careful instructions given by judge that the jury didn't have any difficulty compartmentalizing that evidence said just a moment ago was that the jury was not told that this was fraud produced by jennifer homans husband and in fact the jury was told that repeatedly that is exactly what the government's case was the government focused on the fraud committed by jeff bennett for committed by clayton hole and and then explicitly described the tax evasion case against jennifer hold and i would urge the this court if it has any concerns about what the government's theory of the case was where there was there was an attempt to create some sort of prejudice and utilized this in closing argument read the government's closing argument the government is very clearly was prosecuting jeff bennett clayton no one for the two fraud schemes and very the evidence was that she knew where the money was coming from and specifically she with this the background of this is the jennifer hold one was the pay the fifty one different checks over about a three year period from bank account spent the proceeds of of that money and these were for sham companies companies that she did no work for and the evidence showed she did absolutely no work for she got no documentation no paperwork no w two no ten ninety nine nothing and significant to that point your honor this is that each year she was the person the point person for filing the tax returns for for the jennifer hogan in clayton and she went and met with the accountants barbara butler and in in hudson wisconsin and then again when they moved down to texas the c p a agency in texas she was the one that brought the returns and met with the return preparers and each year over that three  period where she was paid more than two hundred thousand dollars and fifty one separate checks from four companies that she did no work for including two companies run by an employee of her husband and at  have concluded based on the evidence that she had reason to conceal that information and what's significant for the tax purposes your honor is two things one because she knew that this money wasn't getting reported in any way because it was of what is significant to the fraud is that she knew and the jury could conclude that there was a basis for her knowledge and wilfulness in terms of the tax evasion that she knew that the money wasn't gonna get reported to the ira and why was not getting reported to the i because these are companies that that are she doesn't do any work for she's the pay there's no basis for her getting that money and then on the flip side to that she understands that to report that income the jury could conclude to report that income in the returns might cause problems with the embezzlement that had taken place as well might reveal the the embezzlement that's taken place dress the statute of limitations question with respect to the thirteen forty one and three seventy one sure the easiest answer to that question your honor is the plain language of the thirteen forty one statute says a number of different things and i think  holden when he was still an appellant in this case and counsel for mr bennett have just misread thirteen forty one and really overstated the eight circuits precedent that in this case in mr bennett's reply brief  he says that the eighth circuit has ruled explicitly that the placing in the mail is the only operative factor for any mail fraud and that's just not true what there are four separate ways under thirteen forty one that there  say that's the only way it can be established that it says that it is a way that it can be established and mailing your honor it broadly speaking doesn't say in fact even pemberton doesn't say it's the act of placing it in the mail the plain language statute lays out four different ways in which the mail fraud statute can be triggered and that's why the truth of the crossly case which is the only case that i've seen that actually addresses the question of the other end of the mailing is the one that addresse you know you just look and ask some questions about the other acts that took place after march seventeenth two thousand and five in terms of what was charged the jury and and your are is correct to that that the government cites a number of things that were charged to the jury they weren't in the indictment but the court found there was proof of them that was established at trial charge the jury and significantly there was no objection to those additional overt act so the question of how long a concealment in this case lasted we know in the conspiracy lasted based on the filing of those returns that argument those limited to the conspiracy count right yes or yes or and i think that's what judge being had under thirteen forty one count go what  you relying on the receipt on march seventeenth two point two two prongs of the routine forty one your honor both receipt which is it is both charge in the indictment and cause to be delivered both of those prongs of the thirteen forty one require us getting to the end of the line so the cause to be delivered language and the receipt language both of which are relied on by crossly are the two of the four prongs of operative acts that can take place under the mail fraud back to him at his at his p o box and so that he is causing that check to be delivered that check could not have been delivered any earlier than march seventeenth two thousand and five and that that's one of the  that there is plenty of evidence of in the in the record so caution is it really sixty his act of causing it to be delivered had to occur before march seventeenth but the delivery doesn't take place until afterwards it's so and there are cases that say you do you get the benefit of the last act i believe so i mean i think we should we charge in the end and prove in the disjunctive hess your honor but we don't really know for sure which one the found doing but we do know that the jury had had to find that there was and i do know it was argued to the to the jury was that mr bennett received or someone from his company received that check may seventeenth or later and so either way it works under the statute they do challenge the sufficiency of the evidence suggesting that it was in fact mailed and received by mr bennett an hour after march seventeenth you address that earlier and this goes to some of george logan's questions as well this was mr bennett's company this was the air catering systems was mr bennett's company he was the owner of the company he derived all the benefits from the company if there were people that that received that it's possible that one of his employees got that check in and did it it then got deposited into mr bennett's company bank account for which he did write the benefits under this was charged as a section two liability honor under very strong he didn't see law a principle agency law if someone acting at his behalf an employee of his was the one that received it that would be the same what's the evidence so that it was ma with the evidence that was mailed will that those i guess those are two separate questions your honor the evidence that was mailed is the routine practice of the business and your questioning to to ms was i think was be exactly right which is if you the practice of the business is the same over a period of time that is something that can be considered by the jury and on a sufficiency standard we're talking about light most favorable to the government that there is nothing to indicate that that practice changed in any way during the  y leave of one of the employees more importantly your honor i think it is the issuing energy in the receiving end of the in two different locations that was what i was just about to address the key for case and this case i think is a very helpful case and cite in the government's brief the jury is allowed to use its comments on a company that in minneapolis minnesota that issues the check to a company that is operating in tennessee combined with the regular practice of the business is entitle to use its common sense to to reach that conclusion evidence that it was received after on or after march seventeenth is what that the check was dated march sixteenth and i did early yes but it could be it could have been mailed was the seventeenth and there is specific testimony on that issue inspector probably what you mean to say is the earliest it could have been received yes your honor they have been mailed on the sixteenth that's right the earliest it could have been received is march seventeenth two thousand and that's consistent also your honor with the depositing of the check in the bank account controlled by by mr about it when does it show that it was deposited a believe the nineteenth of march your honor i'd have to check but i believe that it's certainly after the sevent the date that it stuck into the mailbox that's one of four ways that it could be triggered i don't know if you're but my argument is that mailing encompasses all four of those dates and so the date of the mailing can mean that the date that it was placed in the in the mail box it can also mean you're right your honor if that were the if that were the only operative date the thirteen forty one the mail fraud statute would not use the term receipt there were no be no basis for that and then it would be in a rationally written is the central purpose of conspiracy but here we have a mail fraud conspiracy there are no acts past the expiration of the statute of limitations to have any nexus to the object of the conspiracy which is the mail fraud there's limitations for the conspiracy ripples of the crime if it's relevant to other charges that are i'm not sure i'm following your honor but the point that is that i'm trying to make after you think the statute of limitations has run they need to divide up the money wouldn't that be an overt act that would be the final overt act i don't believe so your honor and i'm out of time if you have of the object of the conspiracy whatever the object was why wouldn't dividing up the money so that they can keep the money be part of the object of the conspiracy well it depends on what the particular conspiracy w