faith claim that they were not violating the law by paying over the payroll taxes on a piecemeal i'll be it slow basis you're you're not limiting yourself ok very briefly basically what the jury was allowed to assume at the end of the testimony was that the demeanor all spent all their money on their luxury spending number one number two they ignored the i r s after a period of time and completely stopped negotiations number three they made no attempt or minimal attempts to refinance number four that they stole from employer their employees a number five that they filed knowingly false  luxury things they had twenty employees that they paid for twenty years that lived on this on this all of this firm and some of those employees one of those employees had child support withheld and not paid over to the state it was a mentally yes not not very long when it when you found out about it he paid it over after after the employee was called on the carpet for not having kept up with the child support that is correct and i would like to know how quickly address the abuse of trust the government concedes that the thing that makes an abuse of trust position is the and the trust in fund that was required to be set up by the i r s that was not voluntary the i r s threatened them essentially well of course i mean if they didn't pay their honor pointed out in us relieve him and strachan is looked at by what extent is the activities scrutinized the whole purpose of the trust and fund is to scrutinize their activities so there's no way that this trust can facilitate the crime or conceal the crime is it surprised me that you didn't cite part of this court's decision and united states versus part of p a r d l where correctly point out by the government is that the special fund and trust is established to facilitate enforcement of the payroll taxes how is that done with this requirement they set up a separate bank account because they can scrutinize their activities therefore they have no discretion you say they can scrutinize their activities was the bank providing statements to the i r s they're on this trust account or how are they being scrutinized bank or having the  authority to review the account at any time at any time and the i r s had the authority to review the account that's part of the application process they're setting up then they set up the set up pursuant to the statute and gives the i r s the forty two what was the i r s notified by the bank whatever financial institution the account was held that when the account was closed i believe solitary found out absolutely so in order to apply this enhanced met you have to it has to the trust relationship passed if you to facilitate the crime or conceal the crime and the whole purpose by statute is to do the opposite but the for the action to come under increased scrutiny did you raise them survive issue in the district court yes it was it was  it can be set up and abused is it is it done to conceal a crime or is it done to facilitate the crime so that this relationship in no way the opposite of a trust relationship it's a missed trust relationship we don't trust you therefore making you set up this bank account so therefore they have to does not apply and in particular it's not in this case harmless error because there's no way for this court to know whether defiance and disregard of law that i have seen and then he says this very strong argument could be made that this is after side the heartland of the fences and i should not consider the guidelines but rather i should go above them you think that's the essence of what the judge thought well it does but at same time the judge departed two levels i don't understand that but that's beside the point but i mean i'd ask them to be any question as to how the judge felt about these and said well bob i mean he said it on the record he did but he also said good things about the defense what did he say that was good that of law is that the criminal defendant is able to present a defense and fully present the defense but let me let me put this in context as quickly as i can it's my understanding here that the government's theory case against your client was that she and her husband didn't pay their taxes because they wanted to live a lavish lifestyle that's correct during which they also avoided paying child's word and also it's my understanding that your principle defense here was good faith and lack of intent t the break the law i believe that mr muir o attempted to put forth as her principal defense the fact that she was not the one who is responsible for the tax liabilities that actually fell on her husband and therefore is more akin to an innocent spouse and i believe that the deprivation of her right to call agent walling who was an individual who investigated the company resources was a deprivation of her right to present that defense in that regard and i believe that would have been her best defense and and but i obviously cannot speculate whether the defense would have been successful or not but i do believe that it was a viable defense this individual did investigate the resources it took a statement from m codefendant which her husband who said greece is not responsible exactly and this was excluded first on the grounds of relevance and secondly on the ground hearsay statement the first address the relevance i would respectfully submit that it's actually extremely relevant media resources was actually part of the indictment in this matter and she was charged and ultimately convicted of using this company to thwart the tax liabilities of the resources and an investigation actually from the government which showed that at least uncovered some evidence that she was not the one responsible and those tax liabilities i believe was very relevant and what is hearsay the specific statement from m hearsay i would submit that it falls under the hearsay exception as a statement against interest and it was excluded in this court as the court found that it did not have it was a statement considers however didn't have the additional in addition of reliability to bank accounts she did she she she exercised control and i do believe that you're saying some control however so why shouldn't she be liable i mean if somebody gets into a position like that and doesn't pay taxes and doesn't know that you're supposed to pay taxes i think my eleven year old granddaughter would know that because i think the essential issue is the intent here and whether her intent wasn't to live a lavish lifestyle i believe  surrender standing was that she did not have the a it wasn't her responsibility for the tax and she's not likely the right if she's in that position i mean if she if you where the money was used for personal expense i believe she did and isn't it true that she was the only authorized signatory on one of the trust accounts or the the successor trust account i believe she was but  as far as the responsible and i understand there's obviously strong evidence contrary to my position but i would submit that that should have been a joint determination that at least she should have been able to present evidence in this regard to show that she was not the one who was responsible at least she had it some type of basis to believe that she was not the right one responsible or the only evidence you're talking about though is the statement that her husband gave that said my wife's not responsible i would also submit that the agent could could have testified as to was not however i would submit that based on the colloquy between counsel and the court it was very clear that this witness was going to be excluded as irrelevant and that the issue was preserved in that sense and it was blankly excluded as irrelevant but can you tell us as you stand here today what he would have said beyond that the negating statement i cannot definitively i could obviously speculate he would have some additional evidence in taking the statement and and being a government agen investigating this company but as far as making a definitive statement i could not i don't but these people in jail now yes they are both in jail yes they are and and just to that point your hon would also submit that it potentially was plainer to not allow mr muir at least present some testimony in this regard and i think it would have had a substantiate it potentially could have had a substantial outcome for an attorney to stand before the jury and argue she wasn't responsible is one thing but for an attorney actually argue that the government's own agent uncovered at least some evidence that she was not the one responsible for the tax liability if you're saying as a matter of fact she responsive i'm not saying that i'm saying i didn't understand what you a deprivation of her right to present that fact to the jury when this trust account was established she became a signatory and she knew that the purpose of the trust account was to pay taxes and she didn't send checks to the i r s she said i'm elsewhere yes i the rights and the checks out of convenience rather than actually understanding the tax liabilities and you know have to have the tax chorus to know that you have to pay taxes on your employer that's correct but i believe it still should intent to thwart the her potential tax law does and i do believe that's a defense that she should have had the opportunity to pursue whether it would have been successful on the record is clear that you knew she was writing checks from a trust account which was established the by virtue of these and is the army very strongly one way or the other i could not speculate but i believe there was an argument to be made based and that she was precluded from making that argument how how would jury would actually make that factual determination is something i could not possibly articulate to the court if anything else i don't know concerned with respect that jurisprudence is united states versus florida and i was wondering whether or not why that wasn't the thing i did in the brief it clearly sets were three factors which must be considered with respect to th those three factors in your brief i would wonder whether or not you can deal with those three factors now that you know the three factors of booking factor number one is whether the position of trust allows that the finding committed difficult to detect wrong now this trust account was put into being was it not for transparency reasons so that the government would only have one account to look at it so that it would make it easier for the government to detect wrong not more  to what was going on with the fine let's take a look at why is a town i'm sorry i'm sorry good prior to the trust account monies were coming to the in the operating the campus government wanted to be able to follow contributions does that make it more difficult to detect the wrong makes it easier to say this is not again you know the evidence here was that you know that the government wasn't receiving notification  not reflect how the government learned that the governor that the that you grasp lag right you had a set of this trust account now you closed it if you know the government did learn of that eventually obviously that's reflected in the record but how the government did who knows how for the government to enforce violations of trust on tax obligations the legislative history which we discussed in our brief shows that the concern that motivated the an accident of those information the purpose of that is evidenced by the legislative history was to give the government another avenue for spent so under seventy two fifteen it's a misdemeanor t misappropriate funds from special fund do you regard the establishment of that trust fund as a compliment to the integrity of the defendants in this case no your honor let's take a look at point number three in part of which reads whether there has been a reliance on the integrity of the person occupying position just well i think you know i was standing that you know that it obviously doesn't it doesn't necessarily know that defendants they were initially advised once the revenue officer was assigned to their case that the government had a range of enforcement options to bring them into compliance one of those was setting up the special trust fund  another wanted was seeking to have the business shut down after a period of time lapsed the government and the mirror still hadn't come into compliance with their trust fund tax obligations the government the government then chose to impose a special special trust on rather than rather than seeking to shut their business down so i think in the in the context of the facts of this case you can satisfied because they did you know you would say in any case where the government requires a section seventy five twelve trust account that there would be an abuse of trust position the abuse of trust enhanced when appropriate i don't know that i would take that position your honor i think what makes this case any different from any other case well i think the fact that they weren't that they weren't closely scrutinize that here given these unique i mean i know the government did not exercise diligence and therefore they abuse their trust the able them unless they assume that the government would not be carefully scrutinizing this account and other counts like it we don't know the consumer  it's the factual context of this case allowed them to allow them to kenya to continue to operate their business the iris didn't seek to shut them to shut their business down therefore they were able to continue  argued in our briefs that even if you find that it doesn't apply that you should not remand for sentencing in this case why why first of all i think we understand your position you didn't do this you're just arguing it sometimes you're stuck with your client and if the client is the government well that can be difficult to so we understand that but we still have to decide the case that's the was furious at them i think there's more in the record here that makes this different from a case where it's just you could read the sentencing transcript and get an impression that the judge didn't view the defendants favorably but he gave  was proved was a close call whether it was no you know he found that it was over one million dollars and that so therefore there should be two points up on the basis as level but then then very downward saying ah well it's so close let's go back down and then nonetheless the district court effectively sentenced within the correct dive line range because it did it on the assumptions that was wrong should've gone up two points but then also should the gone down two points because the tax loss was in fact over a million and that's in fact with the district there are precedents require where there's been an error in calculating the guideline range that we must remain and i don't know that they were i don't know that i did i did not find any cases that that was mandatory you know it i've no i'm not going to run from the fact that you know that there's case law out there that said that's sort of the preferable course in the run of cases but appropriate to consider that conduct in arriving at the ultimate stenches even if that doesn't meet the technical requirements of the of the abuse of trusted hands me it still exhibits a disregard for the law and it was still within the district court's destruction to select a sentence that that promoted respect for law that's one of the factors and you know should we say well it came out o right in the end and said well just affirm well you know i can appreciate those those concerns you know and i think that's the reason that the court's precedents say that you know preferential course  it was that factor which justified the sentence at the low end of the political range you know the court did if we accept the government's position that the that the at the bureau senses or still reasonable even if the abuse of trust and it was applied really no fact with respect to the sense that well and i think that we don't know that that we well i think we can know that from the transcript here and that's that's the point i was making earlier that the district court did also consider the conduct of the demure rose with respect to the special for sundin count in selecting the upper range of the of the guideline range it had decided to sentencing and once it once it very downward that if we take care of the error here suppose we agree that this is not an appropriate case for a two level  precluded from doing that i don't i think so i mean this is not a case where you say we appeal because they gave a reason and you don't want to allow that  confidence that in fact the people who are in the government for supposed to be watching these things really are it came out ok i mean if i were a lawyer i'd think about that very carefully i think the reason for the departure is if remember that the total many years and i'm referring to the one million dollars threshold so it was about half of that so i think you know a lot of things were essentially pabon to get past that million dollars threshold and i just barely have any i have no other question no the ok thank you like the matter under advisement