justice exception so it was the could have defended counsel and the government so that asked for an end of justice continuance mr bethune right and you're fighting that right all right i just want to make sure so you based your you base your argument really on u s b lloyd don't you what is certainly one of the cases lewis is another case i mean there are let's go to lloyd for instance short the district court we said the district court erred in granting the end of just end of justice continuance because it based its decision soley on an affidavit that contain verified claims and was woefully inadequate in providing competent and specific factual circumstances up on which the end of justice can be justified but don't those facts distinguish floyd from this case well your honor certainly the ultimates stipulation that had been entered into did include much of the for the plain language that we expect to appear in these type of continuance stipulations but that still did not excuse the court from having to inquire either before the stipulation was filed or after the stipulation filed to determine whether all of the things that were raised were actually correct and in fact that the length of the continuation was actually needed now much of the discussion here took place at status conferences prior to the stipulation the stipulation was simply drafted after the core i don't rant to the continuing well that i think maybe you misunderstood my question my question really looking at lloyd it seemed to me that in lloyd they had an a davit and it contained verified claims and they would swallow fully inadequate in providing competent of specific factual circumstances here we don't have that well you go through in much the again much of the what took place here took place at the hearing i understand ok so at the end of justice for the head of justice continuance of course it has to be reviewed for a reason was as well  they have to determine whether the various parties actually want and need the continuance how long a delay is actually required here and when you look at the entire discussion and  said june works yet discussions then continued the court on its own said well he wasn't available in august because his daughter was having twins the government said well september i'm not available did a labyrinth as to why and then the court said what about october so all of a sudden we jump from counselor available to proceed in june and yet the objected to any continuance and no one paid any attention no one's giving any consideration to mr that you know when the fact that he didn't want a continuance what so ever so if you want to do you want to add more to this or do you want to go to so just to finish i mean i think i have your argument but i think it was in the briefs as well so i'm trying to there is another issue which i worry about and test as a relates to the abuse as a relates to the instruction concerning the destruction of evidence we did discuss that your honor i wasn't planning to address that you don't want to dress that i mean i can't i thought that that that that was laid out perfectly fine and in the briefs well all i was go do you think the judge would have given the same or medial instruction that he applied loud hawk i think the problem with this room is i mean the problem with those that i have here is that even if they didn't apply loud a hawk the next thing is harmless error of you so what i'm trying to get cute of concentrate on seems to me the judge would have given the same remedial instruction based discretion that he didn't do loud hog but then the next is harmless isn't harmless and i'm trying to say you know the judge would have given the same instruction a fee to plow blood how arc why is there air it not harmless there well i guess it comes down to because the instruction because it's so it wouldn't be enough essential just a minute if he did given the same instruction even if he to gone through the loud hawk test why is there more than a harmless  while you are our position simply is that it's the instruction not adequately convey that the government has destroyed this evidence and that the jury had the right to essentially you know what you're not focusing on my question my question is not what the instructions said my question is he didn't go through the loud hawk analysis but he did go through an analysis to come up with the instruction they did and looking at the analyse went through to come up with that instruction it doesn't seem to me to come up with any different instruction so it seems to me a harmless error and i suppose your honor if that's the premise then it might be we we disagree with the premise obviously what is the poll what well how do i look at it then therefore i say you're right on the abuse of discretion how do i look at it as to figure out whether it's harmless error or not it seems to me what i do is i say ok didn't do that he didn't go through the analysis he should of but the analysis he went through given what he did it doesn't seem to me to come out any different way how is my thought process wrong well because again we believe it should have come out a different way i guess is what it comes down to that all i see just of that he should have come out but that's   and if i could turn to dr structure with respect to the elements of the tax evasion counts here the government crafted a its own instruction  well what is my standard or a view on that so here you know the government agrees with our with our position that you know that there has to be a test efficiency tax due and owing both parties agreed that's what it was but that's not the instruction that was given i mean the government says it's a tough decision  on an unpaid tax and any of those things would be fine but that's not what the instruction here said it simply said that's defended over federal income tax it didn't state that there was any tax that was due everybody  instructions the felony instruction is on seventy nine of the record and the misdemeanor is once one of the record it's identical the i the st element is the defendant or federal income tax for county one thousand and nine dollars it was identical for both yes your honor thank you very much to me and the court behind you on the united states and to begin with the speedy trial issue and i think i agree with my friend to this extent the issue now we do see is to whether the district court's findings of the end of justice and also that the continuance was reasonable amounts to clear error and the answer to that question is clearly no the record here is replete with on as counsel as counselors are before us just a minute ago and he came forward to say about how that how the district court came to that it seemed then based on his argument that the trial date was extended until the end of october because of massive council government counsel of this court judge all had conflicts in april and october now was that this court required to make an addict appropriate inquiry into whether these conflicts could be resolved to accommodate the earlier date for the defendant codefendant in the government in the government and that's what happened here why do you go to new with counsel what are you going to do with counsel's argument that everybody could have done something in the genome and nobody ever body skip discretion and certainly the court's formulation of the instruction cannot be called a logical implausible or without support from the determining whether to give a remedial instruction concerning the destruction of evidence does the record before us support a finding that it is more probable than not that this air does not materially then that there would be no real difference between and then structure in which said nothing about giving the defendant the benefit of the doubt as to that evidence but just sa minute you just a minute if in fact we we take the f b i disposed of potentially relevant evidence whether this is important to you in reaching a verdict is for you to decide and asked to the government has failed to prevent the evidence to prevent the destruction of the evidence for the defendant's use in this case after that a duty to do  so and this is the important phrase you may assume that the destroyed evidence was favorable to the defendant and you're saying there's no difference republic of instructions no your honor i can see the difference but my point once up a bit different which is any difference between those two is going to doesn't amount to the kind of prejudice needed to show it in this case and if you want to hear me d ok for that what's your best case for that because in general the abstraction so the judge gives makes a tremendous difference to what the jury does in cases that have considered those particular issues you so sure you're suggest signatures on a harmless error because the court would have come out the same way based on what it did even though it didn't apply allowed off is that what you're suggesting precisely  fail want to change i want to change to a different subject that because i think i got your idea the defendant argues that during sentencing the district court should take into account that alleged carry back deduction and calculating the tax loss under section two t one dollar now application no three list certain criteria that must be met before district court can take into so your honor the i think the point in the record where the court considered that is when it said to a consultant it's recollection and notes a trial and decided not to go with the standings number or m think that this record adds to make a calculation the deduction must have been able to be claimed at the time the tax offense was committed and as i understand it the government has always argued in its briefing that accrued fance commanded between two thousand and six of two thousand and eleven the carry back deduction was in the form tam forty five in december of two thousand and seven therefore i'm trying to figure out why the district court didn't consider it and make a calculation well your honor i think there's an antecedent issue which is it's defend its burden to show that the apply to t v one dollar and not about what the burden is it's the application thereof and you can't tally apple applied it because we don't know what he's calculation was and there's no work through that so what is this net operating loss curious about what it is is he's claiming that it is a loss because he paid out money to investors victims following a has the deduction and after having such a plan after the as the deduction seems to me if you're the if the district court is going to fall of two t want point one he should have said i calculate this and this is the reason i am not going to do it and he might say exactly what you're going to say but the fact that he didn't even think about it or talk about it seems to be procedural error with them your finding of  about whether or not the top loss of sixty two thousand dollars should be a mom of loss as opposed to an argument a bile how the court calculated it prudent thing here would have been of course to grant the minimum the minimum continuance necessary this court is made very clear and the justice continuances artspeak granted sparingly and we when necessary and not as a matter of course we submit that's essentially what happens here and and as far as the courts congestion while the stipulation that was prepared after the hearing  it's not because congestion of the courts calendar on page three hundred and sixteen dollars of the record the court does discuss how it's calendar is very busy just before the court on its own said what about october so while to calculate that the court had not made a calculation did you roll clock point yours at the actual sentencing hearing after the court failed to address the defendant's objections did you raise the though did you make that specific objection to the core no i mean if you ask me just as a procedural objection if the court complied with the procedure requirements and the and the defendant make an objection know that it's not occur if that and so and so at that point we have clear and then we have what kind of review what you are that i think there seems to be some tension in the case law but there's certainly some suggestion that it might be played there but we believe that there would be to that here that the fact is the court in fact it explain had all air if the court fails to adequately articulate its calculation you have a case that that that cost a plane air i mean not one that i can point to off the top of my head at this point there's an application of three dollars to one dollar saying that the court should account for any claim credit duction or exemption that is and needed to ensure a reasonable estimate of the pax for some this well i guess if you don't do it then it's fair if you do it if you don't do it then and if nobody objects to it then is a plane there and then is a plane air if it is a plane air review those are the three questions that's right and if it's plain air which is the worst answer for us we believe that that's met because it is an error it's an