there are several issues that were brief and i'd like to reserve if i could myself five minutes rebuttal but hopefully it won't take too long if your owners don't have any specific questions about the brief and i'd just like to highlight some of the based on this in respect to a criminal in respect to a crime is obviously once you get past the the threshold efficacy of the of the perjury conviction itself is how did the acquitted conduct all come back basically through this cross reference and the c g i guess is our argument that both for the efficacy of the perjury conviction and for this cross reference that this this c j forms twenty three that happens basically post arrest isn't a good mechanism for evaluating whether something's in respect to a crime particularly in this case where my client was arrested she's under arrest of it she was conference room somewhere at that seems to be where the action picks up for what we have on our limited record and her husband's there and then he's taken away in handcuffs and it's to say it's a stressful situation is probably an understatement but she immediately request she says she has a lawyer and request house is in her name so it sort of has a flavor center that they have talked to council and then that requested counsel and they interview her right away for this form so she knows that the forms part because she's requested a lawyer right now so she she said she had counsel but the pretrial something that wasn't true she said she didn't have any money and she at least know she's being asked the question in the context of requesting a lawyer that the government's going to pay for or are you contesting that no i believe that the pretrial services officer did tell of this this part where there's two interviews going on almost simultaneous and that's one of the problems that we have with ok the evidence itself but she wasn't right she wasn't basically provided much if any notice other than  these are questions and they were asking you not she wasn't told that she had the right to counsel she was even told what pretrial services supposed to teller's that these questions that you're responding to cannot be used against you if she asked for a lawyer no she just identified a lie she paper or not and i didn't mean to suggest that she was but she's being led through a series of questions and is it your contention that she did not know that that was because she had asked for counsel i say yes she didn't it was not because she had asked for counsel it ambiguous right that's correct so i guess then the question is do we owe any level of deference to the district court's determination that the questions were not ambiguous i don't it seems to arguably it's a factual finding it's what this obviously the standard for this is not going to term and but if when you talk about fundamental ambiguity it's a question of law that's reviewed you know that goes to your argument about setting aside the conviction right when she's applying that cross reference under to do now a half with your argument just getting to my question that's ok my question is i think there are cases of what does in respect to mean it's not in furtherance of it's in respect to and that could be construed to mean about was her perjury was if was her false answer about the investment and i think we have to find that to mean did she have reason to know the testing concerned the criminal offense the district court thought she had reason to know that it concern criminal offense because she was trying to basically high ill gotten gains i think that's the closest the court could come to saying that the false hood was about the criminal offense is that right that's an accurate statement well ok why is that wrong that's that's what i would like you to answer because it presumes i think a lot of i don't think the facts played out that way i don't think the district court had some historical facts that it went through and the application to the guidelines to those facts i think are reviewed for clear air and for abuse of discretion so here although the jury acquitted later on the money laundering charges the government's evidence was more than sufficient to support the argument would be the district court to finance it late it was aware of her husband melvin's fraudulent scheme and that she knowingly benefited from this scheme i mean it went on for a very long time and their bank accounts involved and so i guess i'm  i think the prosecution would argue that you have to show that those findings are clearly erroneous or that they just recorded pieces discretion in applying the cross reference so apparently the district court just didn't think that your client knew nothing about this i think there was discussion other family members being shocked that but this went on for like seven years and that my understanding is the prosecution didn't ask for the cross reference but then the government came back and said well the reason we didn't put that in our seven original sentence the memos because we think there are questions with the standard and there could be questions with the facts in this case and while there aren't a lot of cases on this there are no cases with after her husband had left the investigation the f b i wasn't the with them they hadn't called in front of a grand jury there wasn't an ongoing investigation they knew of when you're sitting in a confined room with officers  she's asking she's talking about her lawyer she knows something is afoot that's not a civil charge they've tossed her house to write she may not marry or not and they ask if you have any cash on hand well that's my summary that's my short end of the question get any cash on and she's requested a lawyer get any cash on hand and she says no again my summary my paraphrase and i think your argument has to be that she didn't know or that that that the judge was wrong in in finding that that answer was in respect to the criminal then conducted another more extensive question questionnaire and then go back and supplement any of the responses so we're not exactly sure what she said but i guess i should in the interview room not to interrupt i mean that she's in the interview room she's under arrest she's asked some questions how she not know that it's concerning a criminal offense when you're asked these questions i mean or put another way why was an abuse of discretion from the district court to conclude that it was concerning a criminal offense well i mean it's one because it had been a year since any of the money laundering activities would have played out that would have that actually were part of the conspiracy and part of the the substantive money laundering which i think her answer was about the faucet you not contesting the falsehood and she said she didn't have money she she if you just if you just assume that we're going to we don't find it persuasive to speak for myself you have cash on hand i don't find her false who would have been about an effort to get a lawyer about ok you just spent five minutes trying to tell me she didn't ask for a lawyer that's part of my confusion she well she she didn't ask for a lawyer but the question itself can be i mean i don't think in the u s because in case of the way they used the context of the question to sort of limit the the question that the defend in that case was already what good would a clue everything in this case she was basically said were i'm going through this forum to see if you qualify for a court appointed counsel even though she wasn't she had said that she had an attorney she said fine and she was asked do you have any cash on hand i would argue as we did that that's ambiguous  but when she responded to that she wasn't and i don't think the evidence is there and sufficiency of the evidence was we don't think that the court went through proper analysis but to say that she was saying no i don't have any cash on hand to try to cover up the her husband's embezzlement or the conspiracy to commit money laundering that had occur you know completed a year before that j one point three b two and my understanding there seems to be some indication that that was not imposed so that we have to worry about that if well into yes your honor but right you have a hard time answering directly ok that this one seems pretty easy ok so did the court impose that enhancement no because of the cross reference but if the if something happens with that cross reference either it's not apply or though we argue the loss is too high right so if all right so if we affirmed on everything else we don't have to worry about that because it wasn't imposed structure but if we did agree with you on the cross reference then it would go back and it would still be at play or if you agree that the there was insufficient evidence to find that she should be attributed one point more than one million five hundred thousand dollars something less that it would be remanded for  with the language of today one to j one dollar c which says if the offense involved perjury in respect to a criminal offense so be it in respect to a criminal offense he does not say directly related to it doesn't say arising out of that we've said it means had reason to know the testimony in this case testimony of the case and concerned the criminal offense so it doesn't counsel's argument is that anything they ask after they've arrested you presumably in one sense concerns a criminal offense that's why you're there that's why you're in jail that's why you get in handcuffs so so where's the limiting principle there what there this case is so factual unique is almost limited bites it will be by itself ok this about if i may just continue the discourse already recognize that the guidelines do not require that the defendant have committed perjury with respect to their own conduct or they have committed the perjury respect to adjudicate offense is just a criminal offense you know sometimes the guidelines are used offense of conviction doesn't even say that here so i don't think she has it has to be in respect to what she came in on the indictment on if she's covering for another crime that's a lot you still have to show that is that her lie that's my word about not having cash on hand related then maybe as i think this will limit itself this was the culmination of a one year cover up from july th two thousand and eleven to the date of her arrest her and her husband engagement continued cover up from draining accounts going on food stamps going on medicaid opening up bogus corporate accounts which contain documents to said they were not paid even though they were both the scenarios it's all in the record and i don't i'm not trying to argue with actually understand what matters for purposes of this enhan figure out whether the folks what she told which was in response to this question which i was pretty well signaled i don't find ambiguous do you have cash on hand she said no but my paraphrase in fact to be sure but she said no and we have to decide whether that was in respect to right this criminal offense and so there was a case we saw it was a circuit has that it has the perjury has to be unmatched were with the criminal conduct and if you are going to limit to what she was charged for that it is because we said in this what we argue for this court if you think this is another step of the cover up to pick a true essentially the what was me defense i could never have stolen all this money because i'm poor i'm on food stamps i can for my lawyer if you find that's another step of the coverup which we've we argued then it would be in respect to a criminal so tell me your best argument for this the any findings that the district court made or what deference to district court is because you did not seek the process referent you said you could do it if but we're not seeking it so there's sort of a positive case law on this and  so what is the best support for that in terms of what we have in the record here what where there are any findings or what's the situation here or what differences of the district court i would issue is i would say acquitted on the money laund contemplate the consideration of quitting conduct this the th circuit has contemplates the consideration of acquitted conduct we i would say abuse of discretion is ethical standard here and the judge did make a very detailed and long finding as to why she found for example a cross reference importantly she found that later it was complicit in the health care fraud and the money laundering now there's really two sets of money learning there's the money laundering that occurred during the health care fraud then there's the money laundering when they essentially get exposed and that begins on july th two thousand and eleven when we're in trouble let's drain our bank account let's pretend to be poor so the judgment colonia felt found despite the jury's verdict and she sat through that evidence showing that she give numerous loans to her family members she flew to the island of shoop seven times she had louis baton purses found in her house coach wallets nick cetera we could also show that her debit card was used to make it was the gambler for what standard that would be clear you are because the issue is knowledge of foreseeability well it's so what's the best it i think you acknowledge that that's sort of an estimate right now how to we contact on t v one point one and the judge said again because she was complicit and she said you did benefit from this money you helped open the account that got this all started you helped clear accounts afterwards it's really foreseeable that you knew about and again you  is that review done for abuse of discretion i mean razor challenge that i don't the figure has not been challenging the government would argue it is that he's not challenging the one five restitution restitution no your honor he's charging that to be one point why it's clear error because the court said yes you did know about that money so what you're saying he's not challenging the amount she's just challenging whether she knew train back to the cross reference from a it's a little the situation all that odd because she basically indicates she's got a lawyer and the questioning stops but then the questioning starts again under a different guise and she's charged with perjury and that's a crime for cross reference is applied based on the questioning that occurred after she asserted her right to a lawyer and then the further complication is by asking by saying i harsh to st charge her with perjury on the form and then use that as a cross reference actually and also i guess my overriding concern is because we paint with a broader brush than just looking at this case it really understand there are some issues that are could be very concerning to this court going forward what the proper processes and these are things that could have been litigated at the district court which never were they could have been litigated in this appeal but they never were but in this case again i need to return to the point that the extremely unique factual circumstances of this case why did she den a file lawyer shut down questioning and then go to be interviewed by pretrial services who told her you don't have to answer this unless you want court boarding coun false or intentionally misleading her dependents were correct and i'd say the value of her court but everything else whether she was employed i know she was acquitted of that but she was arrested at work in her office of which she was the c e o but she submitted some documents at some point time so that she wasn't paid her father did to open a bank account so ok so concerts or anything is there any case that we have and i mean how did this circumstance when she's asserted her right to a lawyer and then she's goes forward and i appreciate apply every time you know where you're fashioning this it would apply every single time i get for any question on the on the on that form as long as she signs it if it's because because your your view of the universe is that every question they ask her when she's in custody is about that a criminal offense and i don't know if the court has reach that question in this case but i'm asking you what am i missing something i don't i haven't given much thought because i think that this we have to give it a lot and i think that's what we're paid for them there is no case out there even remotely on point and i submit there will never be a case remotely implies that what you why do you find the food stamps and medicaid trained her bank accounts and she gets to the c j form she so she shows up in court i'm in a judge it's a little bit like the page you took a shot at the queen and messed on the money laundering and then is because it was seamless when it was it was from beginning to end where she told before she here's what i mean visioning in this part of the record matters to me at least and it's it's pretty fuzzy when she sat down i think it's pretty clear she had requested counsel that's my read of the record and that and then another person a probation officer was walking her through this form asking the questions opposing counsel recommend represent and they were opposite each other and so she across the table so she couldn't read the form ten minutes and then she reviewed it with her one more time and had her sign i don't think a perjury charge i mean that's she does sign a penalty of perjury but the cross reference yes and hansing that after she's already invoked right to counsel it's that's really the gist of it is not this is not about the conviction as far as i'm concerned it's the enhancement ok yes your honor and i didn't these are concerns would i guess that have been alluded to in the arguments of counsel that imprecise any cases saying that what the consequences are i mean he and i mean we're broad as i said before you know writing on a broader opinion rather campus here and we are setting rights responsibilities going forward for a number of parties and if you just take the plain facts of interview and invocation of counsel going filling out a c g a form line cross reference it's a little bit tough to say yeah it's different now because there was an overarching conspiracy that we have to  you know we have to comply which is not just your theory i mean it's maybe true but but she didn't say i was continuing the conspiracy when i was there if i may suggest some language to such as whatever whatever the limits maybe we need not decide within this opinion because i mean i think that would limit it sufficiently well we can do that but i but i just saying i'm not sure that there's it's more difficult i understand ok thank you counsel you or your three m so the limit of the cross reference and i think it was stated in the by the government and its its response to the court's request for a briefing on the application the crossroads reference itself was the the substantial effect language of us really on rages and where they found that there that effect of the perjury in respect to a criminal offense was significant and so the significance of the effect here particularly in the context of this form c j twenty three which is routine in all these cases and in the light of the facts of this case i would argue it's that could be a limiting factor itself but i agree with you judge  would apply and you know you basically be able to use this cross reference in any case well and repeat case it almost flies in the face of reason so that your client didn't know anything about any of this i mean for over that period of time that kind of money coming a married couple i can understand people outside the family they don't know but and apparently that's what the judge thought hey this went on for seven years it was one million seven hundred thousand dollars and you guys gambled you you know had  things that clearly were not consistent with your lifestyle and all of that and she was involved in bank accounts and she had i wish i had four thousand dollars in my underwear drawer tend to be perfectly honest you know all of it there were a lot of things there that the court just didn't find fully you know found that she was clearly wrapped up in this and that essentially she got pretty lucky that she didn't get convicted of the money laundering and then she got this catch all i think was the government they got lucky with the cultural i think that well it's hard to know if they had charged it would they have gotten a lot of what they have gotten a higher if or and are now or you know you don't know that but obviously there's a lot of evidence what you know circumstantial evidence in the trial that would seem to indicate that she and apparently that the court felt that she knew what was going on well certainly the way the court and the government wants to look at the facts that's the case but in reality what you're saying is that because she's the wife she must have know and that was our argument and the judge is like well but every day that one person and they call thirty people they don't have to press it with our analysis is much in our scope than whether she and sort of adoption of the court's hyperbole about the facts of the case and his way i think it played out a trial we have to decide of her earlier case law that the defendant had reason to know that the question really went to as opposed to going to her qualification for e she had to know that in the context that she was saying that the to do something context is important to do for this she would have to know that it was other than for purposes of getting court appointed coun l and the warnings she was given warnings for by the pretrial services offer but not not until after she had finished this year twenty three form then she went through and she read or said you were you know i'm not going to go through the bail interview and doctor wasn't spun around so she could sign it because there was a screen in a separate room and there was a you know there's a lock marshall's door that she has to go through security to get back in there so she did that interview and then she changed to the the bail interview and then thirty minutes after thirty minutes of questioning starting out with that one page form and then she went around and she said ok not sign this and sign this and sign this and didn't incorporate anything back in that she may have been told so far as you know objected lee my client that could have thought was that it was all part of one big interview and everything she said was going to be properly incorporated by the probation officer into the forms that she filled out which was about even under the facts as the judge laid out in the sentencing into the government argued for you know open a bank account seven years you know seven years before all this came to light by  anybody and the government like to argue well she had journals and data journals that show that she was going to transfer this much and not much and if you took all of that you added all of that up that showed that she had some knowledge of this and then there was testimony at trial that she had separate funds and she had she gotten some of her father's land compensation money with the rest of the family but if you add all that up we came to about one hundred and thirteen thousand five hundred not one seven some one million the judge just decided to attribute all of the laws equally to her and say that she should have known of the extent of this seven year fraud that her husband perpetrated on the government that nobody knew about and argument is that the only reason that the judge was saying that was because she was the wife there was no other objective fact to show that she should have known that we don't even know that melvin himself knew the extent of his fraud because they were game he would steal it and he would gamble and steal and gamli spend it on strip clubs and fancy cars that he would give to his friends but she was a stay at home mom and there weren't any facts to suggest that anybody knew much less her the extent of the fraud perpetrated and you can thank you both for your argument today he's just are you be submitted for