jury as to these counts in the twenty eight j letter the government went on to make arguments which are not appropriate trying to establish that the briefs and the facts of the the last of the government under the guidelines to see one point one v two the first prong provides for among other things lost to the government and the second prong  increased outside the guidelines was appropriate because of the harm to the government therefore doing what the guidelines specifically say you cannot do apply both a and b twenty two c one point one  there is also a great deal of discussion in that issue with regard to the fact that fema may not help the government of long in the future and that's harm is not taken into account i believe that if you look at this actually this case this is not so with the issue is what is the government get the government got projects completed at a cost which was increased by a certain amount of money and that amount of money is the harm to the got i mean second question separated was the group which dealt with the issue of the commerce and essentially our position that's taken here is that the restraint of which involves various federal crimes which could be applied but we don't believe the grouping is appropriate and we don't believe that the x in case cited by the government is appropriate and there you had a food stamp violation and you had a drug viol and clearly those are two separate science interests but in the issue between the restraint of trade the bribery and wire fraud it's really one issue they were all in the world and the one major thing and that is we raised the issue on the wire fraud instructions and indeed the indictment contains two theories of wire fraud in each individual to obtain money or property by false promises the statements the government has said in their twenty eight k letter that they don't need to given them any instruction because it's not necessary and they cite richardson and richardson they discussed the fact that under the state law for two types of murder it could be committed basically using the same finding but in the issues before the court on the wire fraud there are different elements as to each of the two troughed and therefore you can't have unanimity if you have different elements we've set forth the elements in face thirty three as they were set forth by the judge and jury instructions and indeed the judge did leave it in the first theory to carry out or attempt to carry out of the central part of the scheme the judge also when instructing the jury did not talk about others essential elements when he discussed the jury instructions and the government feels that that would be appropriate for when he was instructed on the second felt that we believe that the issue needed to be addressed at each count individually because the separate distinct elements excerpts and page four ninety four set forth how the instructions were carried out with regard to the wire fraud and show that the initial fraud section's did not contain all of the various lawyers know the funds to put in their motions and to say to the judge when they're attempting to get in evidence and i wish we were here to argue the forum for the evidence could be stricken forever and come out of our  ks unfortunately that's not a matter that's something this court can address but i think it's clear when we look at the arguments that were made by the prosecutor close this case indeed even look at some of the issues with regard to the arguments in the briefs by the government that the whole issue is one which is fraught with peril but in the closing argument one of the most telling statements exactly what for all for be evidence is supposed to prevent from happening we're not here to say that mr shelton by his previous bad act was a bad person predisposed to do things what we're saying is that this evidence is there to show certain issues i e intent knowledge and the li the evidence of mr shelton failing to pay income taxes not having a business license and doing various other issues they say that only related to the fifteenth count but how do we know the judge never  and so the jury had a number of for all four be evidence matters which came in in a shotgun approach and then they were argued as if they were evidence of actual wrongdoing which they could use in determining innocence not to determine his intense or his knowledge and then even before the briefs this court said well there's no harm no foul because that only came it has to exist count fifteen but the jury was never told that and so there is harm and there is a pile of those cases there are a number of issues that were raised in the brief which i would address at this point i guess is the the handling of the case in the district court i  agree and we pointed out to the court that oftentimes judges make decisions on jurors and normally you can say it's within their power and duty to make those decisions and as an attorney and as a prosecutor we have a gut feeling about if you're we can use a peremptory challenge to excuse that because for a judge to say i have a gut feeling about this juror and i want him off the jury it's not proper just i suppose to be unbiased his gut feelings are not part of the case he should have some facts to base its decisions and indeed in some of the issues he did have that the jurors that they knew the defendant or the defense counsel one i think reservists or national guardsmen that he couldn't go to work because i could go to his military because he had to go to work could be in violation of federal law and i think i call that the state was outrageous the government said he was just trying to i set forth rulings that i feel are prejudicial i stuck with the issues that he was not allowed to present his defenses and i set forth the issue of the chain of continuous was a great concern because the issue had come up as to his bias and potential piracy and rather than giving the counsel for the government i'm sorry for the defendant ten days to research that matter if you ever come back to the court possibly file a motion the judge denied enhancement for bribery of a high level official the guideline says if both a and b apply which they did in this case then apply the greater the court found by a preponderance of the evidence throughout the sentencing proceedings that the government of last in terms if you don't see him reimbursement between five hundred thousand and seven hundred thousand dollars worth of necessarily appropriate but we believe that even under that standard he easily could have found a fourteen level enhancement because the last was at least five hundred thousand dollars but the court was concerned that it needed a more precise number that if it didn't have a precise number of the last that quote the last calculation could be questioned so as a result the court felt obligated to impose real means the l have to see one point one b to this eight level enhancement and instead of going the additional six levels which under a would have been justified he really took a very conservative approach in in applying only a three level up or departure and he did this for other considerations as well if he wanted to avoid what he called some x post after which is there's the one book rule you have to either all of the ninety seven guidelines or all of the two thousand and one guidelines and he recognized that although under the ninety seven guidelines the fraud table favors a different excuse in the defendant because it would have been on the ten level as opposed to a fourteen level but still the group thing and the money laundering counts in the ninety seven guidelines were much more severe than money laundering had a base level of twenty three as opposed to ten in two thousand and one and the court wanted to give the benefit of the the defendant the benefit of the doubt under those guidelines and this was really a way of giving the defendant a better deal by only doing a three level upwards of parcher and of course also avoid having to deal with baiji one point two which if the offense level comes out to be more than the maximum for a particular crime the bribery statute has a maximum penalty of ten years the court did not want to go beyond the maximum set by congress which it would have had to do if it applied if it had come out with this fourteen level enhancement because the it would have been a female has stepped aside in potential reimbursements to the government of it showed what monies had been and what monies had been reimbursed and the government deducted those monies from the amount still outstanding and the defendant himself conceded at the sentencing hearing that the project that was the subject of these gripes floor which one had not yet received payment reimbursement totaled over six hundred thousand dollars now defendant was dead you don't necessarily concede that this is a lost of one because sometimes some day in the future one may still go to thema and say we want this money and they may get it which is incurring more expenses because it was bringing more inspectors to the site of an issue instead of waiting to ask the was just whether the work was complete and then examining the documentation he was saying documentation documentation one was that the money might not be available on a timely basis what the court said was one is in this disaster zone where subject to earthquakes and tightens a lot and we need the restoration of water and electric and words from these facts that that disaster relief might be delayed because of these additional procedural burdens i think it was not in the abuse of discretion of the court to think that these might pose additional thirds and might delay the receipt the court that the united states agreed that if the court had sentenced under a instead of the tuesday one point one b two and gotten the fourteen level enhancement to the military man and i have several points that i would like to make with respect to that i don't forget them why is that he did not serve on the panel pages eight forty one hundred forty two list the names of the jurors who were ultimately selected this is just think we know the jurors are concerned about serving on a jury and one of will do and how it will impact their lives and the judge was tied to impress upon this man that he shouldn't worry about getting into trouble because you know it was ok on the jury yeah i mean you know i am not going to defend the judge for that language but i think when you look at the whole record and the lack of prejudice the defendant has not shown that he had any particular interest in ha you're a student because you've raised in there are there are obvious reasons why you have an interest in certain people serving or not serving him this was not the kind of case that you know i don't think how you could say that that the judge was prejudicing the handpicking the jury one guy he excused because he had emotional problems he'd been through the criminal system if he had had a drinking problem i think it was perfectly legitimate for the court to think that this guy might not be able to handle the pressures  servers i think that was i think that was in judicious use of words but i don't think that it really just plays in the context of what he was doing he was trying to tell the jury listen you know the value of jury service the importance of it and i think the language he used was inappropriate but that the whole tenor of that was he wants to keep as many people on the jury as you can other jurors that he excuse one of them have to go to the dentist and was going to get a ca  intent is is part of the crime and it was also very important i use testimony was that was your step to the jet ski evidence because it showed how human first came to need shelter and it was sort of the background to all this a classic for all for the evidence for or for b is not a rule of explanation it's a rule of inclusion and the only reason not to include stuff is if it's highly inflammatory or prejudicial or if it's only goes to prove that a defendant is a bad guy and that wasn't that wasn't what this was all about and and i think the government's closing now i don't have the  that this is only to show intent and lack of mistake defense the defendant has made this argument on appeal that was never raised below that somehow the court had to charge the jury that this is only coming in with respect to certain count making the jury telling the jury that this only relates to certain counts and in addition relate the evidence related to the bribery and the wire fraud and the bigger a thing so that there wouldn't have been any reason to pinpoint it for the jury because the defendant was acquitted on count fifteen and that's the only thing that the you testimony could not relate to so i'm really you know i don't particularly even understand the argument  it and you know this is a you know this was an accident or innocent and that's the purpose of it and it's a legit roughest under the federal rules i don't know is there any other specific argument that you would like me to official and you can't determine how much you did in this case they chose to be and therefore no eight is not applicable because they've already made a decision that they're going to increase by eight and you don't need to worry about the loss of the government however the said there is no proof that all this is accurate or indeed permanently lost to the government or that female would have unquestionably reimbursed the full ninety percent of the expenditures fema regulations do make a partial or total allowance for being a public official but then the judge usurped that same loss of the government argument again as one of the reasons he went outside the guidelines in the part of r and i issued a lot of decisions and issues that are here before this court and jammed them into forty eight pages as easily as i could reasons that are not for the admission then you have plainly affected the jury's ability to weigh the evidence and apply it as it's supposed to have been applied in this case and it's a shotgun against council one through and when you take a situation where you paid someone with a broad stroke as not paying his taxes not having a license not doing all these various things the fact that it was supposed to be applicable to one co have this evidence that they're not told they're not supposed to use in reaching a determination not only has the credibility of the defendant's case which was not allowed to happen but also goes to the credibility of the other witnesses against him if you think this guy's  and once they get all of that information without giving being told how to use it it becomes pre