both offenses of conviction have very defined intent on with tax evasion requirement willful intent to avoid payment of taxes and bankruptcy fraud acquiring the specific intent to defraud essentially with before the twenty sixteen guidelines but it certainly was in the twenty sixteen guidelines and the sentencing commission conducted a study and found that mitigating was quote applied consistently more sparingly than the commission  because you've argued but the question this you're presenting to us is i understand it is not when new york should have gotten a mitigating role adjustment you're saying the district court eroni asli explain the rationale by relying on a factor due to specifically disavowed as as as dispositive in the application and failed to apply these multiple factors that so how can an argument that the district court err in explaining its analysis be preserved by an objection to the p s i i that preceded the judge's explanation of of his  factors and said that miss your it is not entitled limited gating roll adjustment and didn't say rely on the fact that it was her participation was essential to the enterprise in the light then w forms for thirty three day with respect to lawful often compromise or the bankruptcy petition that doesn't take her out of the running for me again religious counsel i appreciate your arguments in regards to that to the sentencing aspect but those are all the only issues that you break this official sea of the evidence of one district court players sever i want you to address from this record you can point to no evidence that would be sufficient for the conviction of your client in his evidence is that correct there's there's there's nothing that the jury could or relied on that would have convicted your client in this matter that's a sufficiency test and you put into the box burden of having to read this whole record but i'm asking you as an attorney when we get to that record we're not going to find any evidence that the and there is ample evidence with respect to derek but not so much with respect to winning here that you know i just want you to address where your position clearly is in regard to that now what about the failure t taxes with respect to make sure we have to look at her role in this she was a homemaker she was out of the workforce for two decades why she raised her three children and it wasn't until two thousand for that she reentered the workforce to work at secretary science she was not an executive she's not a sophisticated business person she wasn't taking businesses public on trying to stock exchange she wasn't gauging restricted stock transactions and she wasn't   the loft and things like that those those org rocket science financial nuances those are statements of simple declaratory ownership your lack of order ships she signed those there's no argument that our it's certainly true miss and this is your it's not i'm not a rocket scientist and she wasn't forced to sign these documents but it's my understanding the record reveals that her spouse carol went to they counted some lawyers and had these documents prepared and then they were presented to mrs here for her signature as a spouse i don't think she had any reason to question these documents for them i mean to go in there a presumption of somebody signs them did she testified that she was forced or fe needed evidence that i i did not know what i was signing or something and we get back to my cheek in this definition of well phones that the government  she she for it dissipated in all that i mean she was the actual moving force of court looking at the record in regard to that i believe the government stated in the argument before us that it was there or who slowly negotiated that deal i don't know if said some something under oath saying just the opposite co defendants counsel stated that right but this brings up a very interesting point there was a statute of limitations tied to these affirmative acts that were alleged  six years from the date of last affirmative act so the jury was instructed with respect to either defendant that they had to find he had a mislead that each defendant committed an affirmative act after july twenty seventh two thousand and nine and  those five are the signing two of those assigning it to our as for thirty three hey forms relations offering compromise that's a signature the submission of the bankruptcy petition that's another signature mrs europe's signing of a boulder venture partners partners check to pay on the association fees and it's my understanding the boulder venture partners operate if it's office out of that condo and those association fees were reasonable rent and then finally signing of a grassy check to the country club which were asked and used to entertain folks such as they had a trans union credit bureau when they were making business deals and that's it that's within the strike second i think there's a confrontation violation here with respect to this deposition under oath in the bakers and proceeding those answers came potentially relevant to this criminal proceeding and the government cite in a moment the disparity between the other of the evidence between the two defendants is not nearly what opposing counsel suggests there is direct evidence of when the yorks participation in orchestrating the mechanics of th scheme meaning that she was helping and participating and well where of the personal payments for their personal expenses being made by veracity by having their entry partners that's the core of this scheme and she's in the middle of it she played a employee she states in the scene i tried to make that mortgage payments to first horizon i wasn't able to do so here's the password here's the account name please do that for me make sure it gets paid that's her whole wrecked in the mortgage payments on the loft and that's at the record supplemental point five page twelve thirty four so there is not that disparity that opposing counsel claim and there was a curative expression that the court gave which we presume would mitigate any possible prejudice in this case because of the severe holdings with respect to the confrontation clause issue that's the only issue that can support a briton claim here opposing counsel made a reference of confrontation aside she should have had the ability to cross examine him that doesn't exist either you have a confrontation or you don't and here you don't because under the smallest case which the judge baugh that authored and you made a very extensive analysis of crawford and it's progeny you only have a confrontation clause issue and crawford issue if the statement by the declare is testimonial and first this court has found in the patterson case that where it is a coconspirator statement it is not testimonial i note here that when the euro has not challenge the court's finding that this was a coconspirator statement she does not attack that finding instead she still claims there is a confrontation clause a ship under this court's precedent that cannot be the case but even if we were going to just the smalls decision and deciding on its tests whether there's a testimonial statement here there isn't because in small this court put forth two possible definitions of what constitutes a the testimonial statement and under both the primary purpose of the declarer has to be to provide evidence or information to support a criminal prosecution and the district court here correctly found that there are europe's primary purpose in testify during the rule two thousand and four example in the bankruptcy proceeding was not to provide testimony or evidence against wendy or instead his primary purpose was to achieve the bankruptcy discharge which had a testimonial statement so i believe she was mentioned but nothing to the effect of when he did it or sad thing that would essentially be accusing one day of the crimes and the case that we have a fact finding by the district court that that there are several arguments of course this only addresses one but a fact finding that that testimony before the a bankruptcy testimonial did not incriminate would be yes your honor and that's found in volume two page you have to state the objection and your grounds for the objection and that's not a technical requirement it's vital so the district court has the opportunity to understand why your objection and correcting to correct that here are functionally what would have happened had she stated your honor and you are applying the wrong legal analysis is that we all have pulled out our new copies of the sentencing guidelines open the page found the five factors and said we'd better go through these five factors and certainly the obviously and you would concede prompt to caress yes so wrong three what do you do should we consider in determining whether or not the defendant substantial rights were affected what district court specifically referred to in going through the thirty five fifty three a factors i'm sorry i'm not sure it's not the quilt let me put it this way in going through the thirty five fifty three a factors at sentencing for wendy  g the district more specifically referred to a number of things why she has a relatively passive role she was certainly not the one who orchestrated this and so when we go through the multiple factors that you are conceding are a political all of those factors in one way or another go to assessing whether or not the defendant had a relatively minor role and what one of the little things that we have to go on is what the district court specifically said in arriving at the twenty seven month sentence in going through the thirty five fifty three a factors in downplaying the role which also jest that if this report had applied those multiple factors he would have found either a two or three or four point just with your honor i disagree and first i would encourage you to look at the factual record when the court was looking at the beginning of all the chaos and while he applied the wrong legal analysis there is a factual record that was discussed as to that sentencing adjustment with respect to his fifty five fifty three thirty five fifty three factor analysis at the end where he supports his there and statement i don't believe that those are necessarily the facts  will absolutely not your honor in that you bring up a great point here the burden of proof is on wendy europe to prove that she had a substantial right affected by the error in this case it is her burden to convince you that the court cared it was also her burden below to convince the court that it should have given the mitigating role it just meant to begin with or see argues that was done by the whole record the whole evidence so what a minor role she played so she says that evidence is there on the record there was a lot of evidence before the court on the record i heard the court to consider that when that is applied to the actual file didn't they just seizure nonny minor or or minimal it is for the district court to make that decision in the first instance not us well that is correct the district court has got a whole portfolio of experience there with this case and we don't have correct your order but on the plane air standard of review we have to not just reverse it because there was an error we have to look to problems three and four and then your problem three the defendant carries the burden of proving to you that there are substantial rights were impacted so if we if we look at this record and conclude that a district judge could not had to but could have found her minor form then we should remain for recently that this should not be given to the defense this court should affirm because it is a plain error standard of review that the burden is on the defendant to prove to you that a mistake was made not that it might have been made but if that was in fact made and that it imputed her substantial rights and the integrity of the judicial proceeding below and that record is not the for this court the facts before this court support finding that four of those five factors way against her having a mitigating role a just and we can see that she did not plan or organize crime but she was one of the framework central unnecessary should not have been the rubric of legal standard that the court applied it is no it's not your relevant either first she factors one in four which are she understood the scope and structure of the schemes and she extensively participated clearly those are met she engaged in a year or as long at least six years of having personal payments be funneled through all their venture partners and voracity and she's in the think that's correct chip we if we are my and say that if she had made that decision under the proper standard and we wouldn't have reversed it is clearly wrong then we should not grant relief on this one year i'm not sure we're under a clearly  standard because a lot of the wrong legal precedent was used but i don't know i think that in trying to prove that she had her substantial rights impacted the did and it has a heavy burden here and explain this court why this factual record does not factual record before the court supports the judge's filing had it applied the five factor analysis a finding that the mitigating role should not be applied but i don't i don't like us putting our judgment in lieu of the district court who had the trial but i am struck by the force of your argument that she had the burden to prove she would be entitle to it is i don't quite know what that means but in my mind i'm kind of wondering if it doesn't when we can send her back tell the difference do what you think and using the proper standard your honor because we are here on the plane air i know you're here on the plane there but i'm saying you're wanting us to substitute our judgment for what the district court could   mail say it boils down to are reading it one way in the district court reading another when it was the district court's job to do that you're already conceded in the first part so why should we struggle well should we do this or we should do that make the district court good i appreciate that but the reason for the player standard of review is that requiring wigan's to preserve objections in the first instance is vital for her sentence again the disparate evidence is not what the defense claimed she signs patently false documents to support this crime with the district court's explanation were more definitive with regard to how the district judge would have applied the multiple factors if he had been alerted to this application out if the district judges explanation had been more to determine or to would you agree that we should  guidelines were mandatory and if they had not been mandatory he would have applied a lesser sentence and are who are reversed on prong three by saying well we know essentially that this affected the defendant substantial rights not because of the disk that our panel when independently read the trial records we know because we can read the tea leaves behind what the district judge explained elsewhere at the sentencing transcript which seems precisely what would be the most logical starting point for us here i would be to see if you had that in this case it would be helpful i don't believe anywhere in the record you have that in fact there is a two page dialogue between the district court judge and defense counsel where the district court judges almost pleading with him what am i to consider where is the objective standard it's not just to defendants one is higher one is lower the court was looking for the guidance and didn't get any and that is why it is so important to proceed here on