government agrees the case the counts were all interrelated that only was she charged with conspiracy but the money laundering count depended upon supposedly the medicare fraud and those funds and were allegedly not reported on  sheriff's tax returns and or the money was used to pay personal expenses so the counter all related prior to trial the defense of course was charged with twelve counts she offered to plead guilty to the tax counts the government however insisted that before they would dismiss the other ten counts she would have to agree to a tax loss of three hundred thirty six thousand dollars approximately contrary to what was proved at sentencing even under the best theory of the government that was around sixty six thousand dollars and that the could consider the dismiss counts in considering the appropriate sentence so she was faced with an impossible situation because she had an accountant that said no the loss in this case is zero or maybe twenty seven thousand dollars maximum the government was insisting on a three hundred thirty six thousand dollars figure and also that the judge could take into consideration the dismissed counts in which she said she was completely not guilty so she was forced to go to trial during the trial she was convicted then based upon a rule twenty nine the motion cover all twelve well because looking at the evidence as it existed there was sufficient evidence on me and i don't doubt that on the tax counts that a rational jury could ha based stole the if you would have looked at that evidence of the would have believed the government's witnesses and looked at the case most favorably on in light of the government's evidence that there was sufficient evidence to convict the appellant on those two counts i mean it was quite clear that you could do that no rational jury could have come to the conclusion that the defendant was guilty on these ten counts now that's a very unusual motion for any trial court to rule and i've been doing this almost forty years i think for the first time that i've had the because it is a new fact then because i would have had to make the argument that there was no facts from which a jury could have concluded on the tax account that in fact to defend it was guilty i would have had to make that determination as you just said you could easily made the argument that even if you find your facts the jury could have decided it if you find that the other camps aren't sustained because if you really wasn't rational then you must upset these counts so now it's been very simple and say i want to neutral on the whole thing when well in retrospect probably maybe i should have done that actually and reach addicted to the positive side it may well be that was an excellent strategic decision by focusing attention on the counts that were more questionable the problem is once you win those the temptation to say why can't we when all of them is there and now we're back trying to get the lie out too but there's nothing that said that the motion couldn't have been brought for the first twelve and nothing that i easy i mean you can understand the logic between nice to why these counts are different because what the what the district judge pointed to with regard to granting the two trials is proof of her knowledge of the of the medical fraud but that and apart from what she knows the money is being spent for on family things so you can understand a differentiation in verdict now what i hear you saying is that wealthy juries irrational here they are going to be irrational every place you can't guilty on on the medical fraud she's almost certainly guilty on the tax fraud but i don't think the reverse is true and i think what's with the district are disappointing to hear he's saying look she can be and he doesn't say she's innocent he can say that there's not enough proof that beyond reasonable doubt she knew what was going on he later says he thinks by her hondurans yes she probably knew but not enough for a jury properly to convict but the tax fraud involves something else that involves what the family are spending money on so she doesn't have to know those are ill gotten gains though the family is spending money on these personal things that are being attributed to a corporation not being taxes on that's that's a different kind of knowledge and so i don't have any difficulty understanding the difference and to argue broadly the jury is wrong on some i got to be wrong on all fronts just ways against that strategic decisions are beginning to bring this motion on ten counts but not twelve i think that's a valid decision i think was made for excellent reasons and sure enough it paid off here it may not have paid off it's brought on all twelve but now we're dealing with the implications of the fact that you really can't say if a jury is wrong on one they got to be wrong on all well the court is correct that was a reason i made a strategic decision to concentrate on the ten but my point  just you know it's an argument that pretrial to say ok there was no way the government could put those counts in the same indictment because the government's there it was that the money earned from the medicare fraud and paid and not and used for personal expenses that was the tie together so there was really no way to sever the ca a spillover and she was entitled to a new trial on the other two counts and there's a case the rooney case in the circuit that supports that argument and we're saying that same eigen should be utilized at the trial court level it's getting to the sentencing issues of ways one of the ways is that you give her credit under the guidelines for acceptance of responsibility when in fact she was willing to plead guilty you're appealing those two counts ok you're saying she's going to get acquitted when she goes back on those two counts she's not up to the point you're going it's really has nothing to do with acceptance of responsibility i mean you always make choices when you say ok i'm going to accept responsibility by pleading guilty because if i go to trial i could lose the case you're not always saying i'm a hundred percent guilty i just that you make that kind of a judgment call as a defendant or defense lawyer now in this particular case she said ok i will plead guilty and the government is saying ok we'll let you plead guilty but only if you agree no tatts figure that is completely contrary to what eventually they could prove and completely contrary to what the defense says is the tax issue even now even now isn't the right time but it did strike me how could she please because you're arguing right here that  responsibility is to save the court time and the amount of effort to try to go to trial and save quite honestly is the government should have offered you a different bargain but that's not what exceptions responsibility is for review your honor suppose the government is saying mistake by relying upon my husband i made a mistake and you know in the tax area it's a little it's not as clear cut as any other types of crime but your honor should the government be in the position of saying before we let you plead guilty you have to admit things for which  not guilty of and which you didn't do which is what they ended up doing in this case are they entitled to say you have to plead guilty and say it's more than five kilos was one people otherwise when i can accept your plea and what is and then the defendant goes to trial and doesn't get accept that they judge came to the conclusion of a cheer and a hassle because dealing in criminal procedure when the judge granted the rule twenty nine motion and i quoted in the brief the judge said that there was no evidence not that it could be subject to interpretation that later clarified his writing in the context of reasonable doubt many misspoken but what he actually thought well we have a you know we to say that after a judge makes a written opinion which is the law of the case and says that there was no evidence that this woman had any knowledge of a fraud and then when it comes down to sands and he says oh by the way on a different standard even though he's just sa in writing there is no evidence that by the way i think that maybe she really knew what was going on but couldn't prove beyond a reasonable doubt no because if that was the standard then a rational jury could have convicted her of the ten counts and it would be completely contrary to this region decision that you know the standard he looked at those proprietors are revenants are beyond a reasonable doubt he didn't say that when he ruled on the rule twenty nine motion he said there was no evidence  district court which raised the issue of whether or not other counts unrelated to the factual pattern present in the tax counts presented sufficient evidence beyond reasonable doubt for a conviction in the court said no in the court's decision no regarding the belated motion for a new trial the district court specifically found that there was overwhelming evidence with respect to the tax counts and that even if he bought the defendant's theory that his order could have been to her newly discovered evidence which he did not it wouldn't have impacted the outcome of that trial with respect to the tax counts now for very basic reasons the court order itself is not evidence so therefore even addressed in the five factor analysis for newly discovered evidence motion for new trial doesn't make sense the order would not be presented to a jury where this case tried again it simply isn't relevant to any fact of consequence in the tax case second as the district court noted all of the facts on which mr seaney mr sherman made his six that where we have different fact patterns that support two separate schemes we will not undermine or if you can we will have the quote we will normally have undiminished faith that a jury has to follow the court's instructions and fact pattern supporting those counts of conviction with respect to the sentencing arguments first on the acceptance of responsibility i won't belabor this issue because i believe the court has read the briefs and understands the the court's  analysis on that but i would like to correct a factual misrepresentation that the government at any point asked mr spirt to plead guilty and admit facts that were not true the government had always in its power the ability to prove up the higher loss and explain to the district court the time of sentencing that is reason for not doing so ultimately was a result in the change of the law because of booker the original plea agreement offered by the defendant was offered pre blakely we didn't know that the sense of guidelines would come under attack we didn't know that the guidelines would become supervisory rather than mandatory and our decision a year and a half later not to put on an evidentiary hearing and discuss with witnesses and prove that the complicated net operating that had impacted the tax calculation for years that that was not worth the government's resources that time given what had happened in the interim with respect to the law and the government's caseload as a direct result of the change in that law so at no point does the government act in bad faith and request her to plead to facts that were not accurate in the government's mind then also with respect to acceptance at any time before trial if the defendant believes that she had cases cited by defendant where acceptance is given in spite of the case going to trial there was an effort by the defendant to plead guilty not because she didn't get the bargain she asked for but irrespective of anything done by the government the defendant expressed an intent to plead guilty and wasn't allowed to do so we don't have that in this case and as for all the other reasons put out by the panel there is not a showing of acceptance in this case with respect to the ten thousand dollars of lost obviously the difference of burden of proof w know what i meant i don't know what i said in the order but i'm telling you what i meant if i misspoke in that order i'm not bound to continue my own mistake it's clear that the district court understood the difference between preponderance and beyond reasonable doubt and his factual finding at sentencing was not in clear air with respect to minor or minimal role the district court made of a factual finding that this defendant was centrally involved was an essential player in the tax crime and that factual finding was not clear this ticket it means in this case as the district court noted there were two sets of accountants there was a corporate shell used there were misstatements regarding characterization of payments as a loan payment a loan repayment and then they use business deductions to hide the fact that they were spending this money on personal expenses including the tax benefit they got from that they were also able to hide the personal income through those means clearly that is more sophisticated than your average tax scheme and the courts finding was not in clear  finally with respect to the tax laws in this case the court's finding that the government had sufficiently proven that b j sh was a corporate shell used for no other purpose was not in clear air and the courts the burden of finding a reasonable estimation of l