your honors this is an issue for occlusion case that may seals criminal sentencing the government insisted upon having the district court find whether or not michelle intended to vegas taxes they added into the mix another question on the same issue and that is it appears that at least a couple of our sister circuits have not accepted the argument that you're making now to sentencing hearing says it does to any prior litigation proceeding you know but then what do we do with judge thomas question which is to say the procedures and the incentives of the parties during those procedures are really very different in motivation is there a difference in the motivation in the one case what the government's trying to do is just rack blood out of your client in the other case it's just money we're fighting over and so the incentives are different in the sense that we want more time in one and now and now we want to get serious and get money choose its present for bore its case at the sentencing hearing but that's not really the issue the issue is whether or not it had a full and fair opportunity to present that yes i think what they haven't presented at  r specifically said that the us the sentencing guidelines calculation will be made by the court after consideration of the p s r and evidence presented at the sentencing hearing they joined it they insisted on this what is required is that it was actually litigated and decided that doesn't sound like we had much actual  a little or full blown in this case the government decided to a little get a little they had the entire boxes of records that they ultimately used in the tax court before he was even charged criminally all of their discovery h something in small claims court as to whether or not there's a liability when it when the when the total liability is two thousand dollars and because the total liability is very well well you only litigate a little bit every little incentive well ok all of a sudden same question comes up against me but now i'm in superior court and i'm sort of hundred million dollars gives me the incentives litigator different there is no way there's collateral estoppel coming out of small claims court because all of a sudden i have much more incentive to litigate the government the first time around least by half brothers as there's very little dollars first hundred million dollars and in such fletcher's hypothetical i think it's entirely possible that the second case could be precluded you've got the same parties at that assuming it's the same legal issue it was the same issue involved does that make a difference that mr hurst that the original sentencing proceeding was premised upon your client's plead to you tax to me which doesn't necessarily require in t to defraud simply of the subscribing and fire of unknowing leave false tax return and that's what he's going to the sentencing proceeding on the issue that we're concerned with here is really an aggravating factor is he going to four years for doing it and seven more for doing you know perk ok that's basically what happened here is that not that that was what the district court was looking at should i give him more time should i bump that guy fine range because i honestly i think it does it it's very similar to the judge let us have to set a goal except that the question i asked judge fletcher was are the parties the same if they are the same then i think if you elect in small claims court to people with it and you lose i think you going to have you could possibly have serious trouble at the fall or was it the same in the sense that it's the united states of america but on the one hand it's the commissioner of internal revenue who is seeking money in the one proceeding and it's the attorney general who is carrying out is already doing for others i mean i don't think it does i think that in this case the prosecution basically is at the behest of the internal revenue service they conduct the investigation and because of the way the system findings were although they were favorable they weren't quite as cut and dried as your suggestion after pointing out that there's substantial mitigating evidence he says i think on balance i'm satisfied that the intent here was not primarily to avoid payment of taxes i think the intent may well have been to divert corporate money to personal use which is not a good thing he says so he goes on the that he doesn't find that the primary purpose is evasion pavement of the tax but he never really makes a fully favorable finding either it seems to be more in the nature of the government hasn't quite carried its burden of proof which is a little bit different than a fully favorable state credibility finding after a trial so how does that affect your analysis important even though he may not have made the specific findings that i would have preferred to see for purposes of my argument he by by choosing calculation to the only that it was primarily not to which suggests that it was secondarily to learn so what he was choosing from was not black and white between calculations one and two but rather if you will by a you know affects so that isn't the actual litigation piece which we've been discussing what was the nature of the decision if it's true that the ultimate decision was in his favor by the choice of calculation but it was a little bit more of a there was another spot in the transcript i believe where he was a little bit more specific on that finding out during opposing counsel so i think it's probably the next paragraph he continues to talk about and he gets a little bit more cherry in your client's favor but there when you look at the transcript of the sentencing hearing the government had no interest in pursuing the issue of asian with any serious intent the plea agreement the parties agreed that one of two calculations was appropriate under the under the guidelines under either calculation you had the same result service six months imprisonment the government agreed that any in any event the they would be happy or would agree to home detention in lieu of imprisonment at the time of the sentencing hearing the p s r come in and the probation given home detention he thought he couldn't so he found himself between that rock on the other hand he felt he wanted to be able to order restitution from one thousand nine hundred to make everybody whole the way out to the lower tax laws we're prepared to give the home detention and when you look at the plea agreement itself the government the parties agree there what there were two calculations demonstrates the result of the two calculations and regardless of whether or not you find evasion or not you still come out with your old sticks and that's where the judge came out by finding that there was no of asian and i think that clearly what he was trying to do there was no litigation on that issue in any meaningful sense the work further it couldn't have been litigated because the procedures are so different we couldn't have had a full trial if you're talking tax evasion you're talking the intent of the person to evade taxes presumably if you want to get good evidence of that would want to compel mr be able to testify and if you can revoke his fifth amendment rights to try to get a negative inference from his failure to testify of course he'd be at risk of perhaps indicating to the district court that maybe he wasn't as honest as which brings me the third point is that you shouldn't have to litigate issues like this in the sentencing hearing you don't want to turn a sense of hearing into many trials that he in fact because of the difficulty of actually computing the liability that's oh i don't know if it's any more difficult than other cases i'm personally a tax lawyer but certainly it be very difficult for any number of recently complicates restitution proceedings in c in this situation you wonder what the district court was trying to do which was to ensure that the government would get its taxes for ninety ninety as well as ninety one ninety two you also provisions of paragraph eleven to determine what the restitution amount was due and only yes because of the after the whether or not or at least the the service had in his pos the government went after him for ninety years well in the actual civil civil proceedings which was permitted to do assuming it's fraud but the government went and even if you say that there's an agreement here as part of the pleas that he will whatever is owing for ninety one and ninety two the government going beyond that agreement i see what you're saying and i don't regard that as a as a fatal flaw in your argument is want to point out that even to the extent you're relying on the agreement it does not go to the full exten because i mean these are not easily settled in particularly in i'm not quite sure how you would handle it in the context of a ancillary criminal proceeding with different rules while i don't know of any rule that says you couldn't common law and you occasion certainly wasn't here the only comment i might make is that it may be difficult to adopt sort of wholesale but the second circuit seems to  otential problem of expanded litigation at sentencing is the government can be a little bit more careful that way draft this plea agreements it shouldn't insist on one of two guidelines it can charge under tax evasion seventy two also and where to argue the amount but in this case the government forced the district court into making this decision it didn't have to do it it could have said the government saying it doesn't matter which of these two guidelines calculations applies here because the same sense is going to happen either way but if that's the case then why didn't they just say ok fine got in the calculation number two it wouldn't made a difference in terms