nashville tennessee bar here on behalf of defendant appellant angela sutter of i think the lesson of this case is that you need to be aware if you get involved in a business transaction with echo global logistics from looking at the record in this case i think the panel can see that misato felt the full force of echo global logistics both in the northern district of illinois civil action and then the remarkable indictment in the middle district of tennessee which was really a complete adoption of the civil action in the northern district of illinois district judge trotter was moved to make the observation at sentencing in this case that based on her experience as a former assistant united states attorney as i am she felt like the case had been grossly overcharged and she was taken by the fact that the government accepted the investigation of the civil lawyers in the northern district of illinois case i think she is the phrase adopted it hook line and sinker and turned it into a criminal indictment against without really any independent investigation done by any of the agents that were present at the trial ms sun with was charged in a twenty two dollars count indictment there were many mortal sins that were alleged in the indictment wire fraud mail fraud aggravated identity theft money laundering ironically she was acquitted of all of the very serious charges and she was convicted under some unusual circumstances of making a false declaration in an affidavit that was submitted by her lawyer who remarkably testified against her twice at the civil trial in the middle district of tennessee  once in the government's case in chief and later when he appeared in rebuttal it was in my experience a very strange trial the government rested really after only calling a few witnesses i put on my proof and then we were treated to some some days of rebuttal testimony after the eight day trial was sort of who was acquitted of twenty one of the counts and convicted to think we've all read yes or why don't you cut to the chase by her nashville lawyer that basically said hey we run a little business in middle tennessee we are a trucking and logistics brokerage company and we do our accounting on an old school cash basis method now in the course of this asset transaction the big boys from chicago echo global logistics wanted those numbers expressed in an accrual basis and that's what they did she submit affidavit that was prepared by her nashville lawyer it was sent through the e c f system to the northern district of illinois in connection with that civil action where she very plainly stated that we've historically done our accounting a were those presented in accordance with the asset purchase agreement they were and significantly the controller for echo global it just takes took the information that miss out of the transmitted via email and turned it into the profit and loss statement in the convention that they wanted which was the accrual basis accounting method presented to them in an accrual basis that's the way they requested it and that's what she did but she made it clear to them that we basis that's how they ran their business is any of that in the record is there well her testimony is in the record and the person that did the due diligence for echo global logistics and spent weeks at their office in a little town outside of nashville testified that all of the documents that he needed to see on the due diligence list were provided and that no one at miss company is name is mike boss for the record you're saying i'm sorry to interrupt but you're saying that every exhibit that's in the record that says it's a cool basis those were all provided in accordance with or consistent with her declaration that she makes it clear and they have today that they were on a cash basis company but that echo requested it in the convention of a cruel and that's what they did but i think one of the things you all will be deciding is whether st of all is it a false statement and i can ask you question did she prepare exhibits one into you know someone in her company you know those exhibits were prepared by echo globally just takes the can then control or he got a raise after this case and those were sort of the cornerstone exhibits for the united states you prepare them during using the information that he got from or from a number of different sources they had a man on the ground content and then they put together the profit and loss statements that were used for the close but these counts quite frankly i think was one thousand seven hundred and eighteen and nineteen were really an afterthought at the trial the government gave a very short shrift in their opening statement that you may hear told the jury you may hear about an affidavit that was presented by ms sutter in the civil case up in chicago and may have  she might have mentioned by my recollection she had tax returns that had been prepared in a pro forma way that were based on a cash method accounting question from the jury in the jury  there there may have and forgive me there may have been in the sense that she identified tax returns that were prepared but not filed in the convention of cash basis accounting but there question could have arisen from a lack of evidence that they didn't hear enough evidence on accrual vs cash basis and you talked about the rd issue in the brief that was on the st day of deliberation about two hundred and forty five in the afternoon and without objection judge answer their question that what we really can't give you information and then the next day in the afternoon that's when the nd question came where they were obviously struggling to make a decision in the case and that they were unable to reach a verdict that's the one that the judge i think should have stopped her sentencing hearing or whatever else she was doing that was ancillary to the trial and consistent with the rule and consistent with the law brought us back into court and let us know that the jury had that other question every answer right it was never answered it was we just came in i think it was at three hundred and thirty five in the afternoon on the nd day of deliberations you're saying a of a jury trial that if if there is a question that a judge is not supposed to basically keep the question to herself it's supposed to be a question that's supposed to be shared with the parties particularly a permitted event and share with the parties and you didn't even object below right when john made it now need in jack governments right this is plain air and there is no rule that makes it clear to a district judge or a case that they have to stop what they're doing and deal with  question immediately because i've i've sat on trials where you get fifty questions and you're in a middle of a sentencing saying that judge has to stop the nd because they don't sometimes you don't get notified in fact often when you're on the bench sentencing until you walk off the bench if she was notified and i think the better practice to know why she this is playing error well when we came in to get to what we thought was going to be the verdict she was very interested in shuffling that syrian and getting the verdict there was in my own defense not really much of a chance to even reflect on you've got it on after the case i did not file a post judgment i did not but but about them in their closing not much if they did at all i thought it was interesting that she was acquitted of seventeen and the false declaration there was that she did not misrepresent anything to echo with respect to the of ship or direct or any other business not guilty and then she was found guilty after they struggle on a metaphysical issue about cash versus accrual accounting and it's in my brief but it's a really turned out to be a distinction without a difference there controller who testified said it made no difference whatsoever the to this transaction so i don't see how it could have been in any way had any influence on the district judge in the northern district of illinois i think it was an afterthought up there as well thank you very much for county teen and about whether the district court properly handled a jury note i'm going to address all three issues but i want to begin by talking about the evidence that supports the for that one thousand six hundred and twenty three conviction and before i touch on the merits of that claim  me start by noting one defect that we failed to identify in our brief the defendant argues on appeal that the evidence was insufficient because of inadequate proof of falsity and materiality but at trial the defendant made a rule twenty nine motion to dismiss count eighteen and made a venue based argument and did not raise any sufficiency based claims which means that she's waive those challenges under united states versus osborne and united states versus wesley now that it says that they made the argument based on venue so why shouldn't i mean you're asking us to hold the defendant for future and at the same time asking us to waive your four which are sort certainly your honor and i think i just wanted to raise it for the court we have certain we've certainly did not identify and it was plain from the record we should have done that turning to the proof of falsity there is sufficient evidence in the record for any rational jury to find that the defendant here made a false statement about the accounting method that her company used theirs and go global just stick c f o cal sowers testimony where he says the defendant gave him reports that were created on an accrual basis there's the i believe she she as i understood the trial testimony she gave them the the accounting statements financial statements on an accrual basis and in her declaration she states and i'm quoting from  h six we did our accounting on a cash basis but echo wanted the numbers to reflect a cruel so to echo employees actually created the a crew members and the testimony at trial is that echo didn't create anything the a queen numbers were actually given to them the exhibits one and two were created by her or created by them as as i understand it created by her word what's the evidence at trial that exhibits  two were created by her i'd i believe i would want to go back and look at the record that cal sours testify that he didn't create anything it didn't recreate any ship or direct statements using a different ok she says hours and blas right yes your honor ok so was can i ask you separate question was the lie the perjury that she did all her counting on a cash basis or that sours and bloss created the accrual numbers that she did all are counting on a cash basis and that's what's reflected in the indictment your hon if she prepared them because they requested it in accrual basis and otherwise they only did accounting on a cash basis i don't think that is the facts that are in the ok and she was acquitted of that is acquitted that yes your honor she's acquitted that and moving on to materiality the statements also material and it's because it either influence or escape will influence in the district court in the northern district of illinois and here the context matters and that is you have a declaration that was filed as part of a memorandum in support of a motion to vacate a default judgment and at trial the defendant civil attorney testified that this declaration went to the merits of is it the declaration itself that has to go to the merits or the fal didn't matter whether you did it ultimately in cash or cruel he did it and that actually supports our theory of materiality because i think anyone with a working knowledge of accounting principles until you know that if done properly cash accounting and accrual accounting at the end of the day are going  you the same numbers inputs come in a different time explain to me why that supports your theory of materiality well as to why this statement is right i did it on a cash basis because let's assume she did it properly no then why would that be i'm not sure i because and this gets us back to the context because you have what she this declaration was filed in an attempt to vacate a default judgment and as part of that you have to show anyone with a working knowledge of accounting principles could but it's still a lie that is material under one thousand six hundred and twenty three but that would cover any false the you make accord in that you know document because why would you do it if you didn't think it was good for that doesn't have to involve something more than that i think it just has to be capable of influencing the judge and so if certainly anything that is going to the merits would have that capability and even if that ever anything in the declaration that was false would be material that because it's by definition i'm submitting it with a motion to reconsider i'm trying to change his mind i think everything i put in there i'm assuming is in there for a reason you one more question yes you are what did the government todd i exhibit warning to the asset purchase agreement so they say in the asset purchase agreement they have some statement about preparing it in accordance with their accounting practice and you say she prepared that there's evidence she prepared wanting to was there any testimony in that that was prepared as part of the asset purchase agreement or something to that extent your honor i don't i don't know that i can certainly follow up with the court and provide an answer to our apologize for three and going back to your question judge you know there are a number of cases where you have a statement to a court that is instantly recognizable as false and even though it's instantly recognizable as false courts are still determined that under one thousand six hundred and twenty three dollars it is material which i would argue in this case you have a statement that is very quickly recognizable as false it's still material because it was capable of influencing the court's decision on the merits why is it quickly recognizable as well because if you have a working knowledge of i think it accounting principles you understand that there is no the bottom line numbers between cash and accrual accounting should not should not be different  but i don't follow why that the why that helps you so who cares if he said that they use cash and he's alive and they actually use the cool and oh my god what you are this is the huge lie using  cruel and not cash basis and that's what so what what is it material well why is it a material why why i mean you can think of all kinds of things you can lie about that would be seria explains the plaintiff's claims of breach of contract and fraud so let me so i'm having the same struggle so i get your point is perfectly valid that maybe she did kaka maimie accounting ok but i don't understand why it's material to say i did you have to assume from for this hypo not for the case for nd that cash in a crual produce the same numbers yes your honor would you say is consistent with good accounting yes or no so then if you say i do it in cash basis or a do it in accrual basis who cares the statement standing alone i agree but it is this was made this went to the merits of her defense and her defense was because we did different methods of accounting that explains the discrepancy and that seems to me the lie that because we did different methods of accounting it explains the discrepancy that's right that's a lie because the but not that whether i do it in cash or cruel it may be a lie but it's not material it is why am i struggling with this no i understand it makes sense that you're struggling but with this but i would argue that the why cash versus a cruel it's a it's a part of the kind of the the bigger scheme that we just talked about i mean the context of the context matters here i guess i'm trying to get  the context when this was said piecing together these exhibits that say a cruel and trying to figure out and infer who prepare them and whether they actually were the calumny the accounting method that were directors using yes although there is testimony from individuals who dealt with the defendant and i believe from the defended herself saying you know she either prepared things using the accrual method or i gave a statement to just briefly turning the venue before i reached the merits of the findus argument there has been it's also waived the venue or unit and the defendant's done that because she made a face of the indictment and the defendant did not raise it into the rule twenty nine motion and when asked why by the district court said they did for strategic reasons i can i go back yes or no one has a question about venue  so i have one just question i struggled with county teen charges that all accounting for business was done on a cash basis throughout your brief an argument you point to paragraph ten why isn't this related to paragraph to hand a paragraph six why isn't this related to paragraph town i'm just curious not gotten a decoration yeah it's because the language is identical and so i struggled with that when was preparing i just don't understand everyone's arguing about paragraphs six paragraphs ten use the exact language at the end yes your honor if it looks like from and i could not notice looking at the paragraph six in paragraph ten they appear almost identical and make the most recent same point ok i don't know why the so there's no material reason i should worry about that not to my knowledge not to my knowledge if you want to just a hypothetical question if the government does not present a theory to the jury below him we use that theory to affirm on appeal yes you can your honor and it's because  theory that i've presented to you today the jury could infer from testimony in this case not specifically point the court to mr preston stenson only who was the defendant civil attorney stated that this step aeration and the statements in it went to the merits of the defense in the civil case in the northern discriminately isn't that seem a little unfair to defendants where we hold them to forfeiture all the time but the government can get away with  fitting things you don't present a theory to the jury we have to assume the jury came up with it and convicted on it even though the government argued something else in closing well to my understand what but juries can certainly and infer things from the record and the attorney statements are in the record ok i see my time's up most or any further  you on a couple of points i think mr dean had the good fortune of not trying the case in the district court but the jury never heard a witness from echo global it just ticks say that if you have a working knowledge of accounting that you could somehow piece together that can't county teen was a false statement i did want to direct the court's attention to a statement that is in the record it's  june thirty is provided so that's the that's the balance sheet that came from angelo hours testified that he did not prepare exhibits one and two i thought he did your right as i stand here i don't i just don't remember if he did testify to that do you lose i don't believe so it's still not immaterial false statement on this record there is no explanation of the jury how it was false and her testimony was unimpeached on that in terms of the venue if if you all want to i just want to address the question of waiver the government speaks about rule of criminal procedure twelve b three a  i that it must be and as you all know the rule was amended in two thousand and fourteen and it now says it must be raised by treaty pretrial motion if the basis for the motion is then reasonably available and of the motion can be determined without a trial on the merits so that introductory language the rule still includes those two very important limitations so i don't believe it was waived under twelve b three a