good morning your honor is tim warner for mr knock i'm i'll reserve two minutes for rebuttal ok ok this case presents an interesting question of what happens when the same claim is presented twice in a false claim question and how does that affect two things how does that affect the issue of multiplicity can someone be convicted more than once if the same climb in this case the same request for a tax refund is filed twice and how does that affect the calculation of the amount of loss and in  no the answer is not necessarily the same and i think the two are somewhat independent maybe somewhat related but they both turned on his intent i think that the first issue the multiplicity issue i do not think it turns on intent because the court has to look at the statute in this case it is the filing of a claim so i think that the claim is the so called unit of prosecution in terms of multiplicity well the statute says whoever makes or presents to any person any clay or any department or agency there  i guess the question is whether a claim is the piece of paper and whether making it a sending that piece of paper or whether the claim is the content of the piece of paper the pick the pieces of paper were the same right right but they were sent to different people at different times so they were presented separately yes separate presentations basically a couple miles why isn't that two things santa twice if it was one claim our position would be that the focus is on the claim and then there can only be one claim for a refund in relation to the two thousand and seven tax year and it's the same but why is that that's true i mean couldn't it isn't it possible that the three different i r s offices would have both issued a refund we don't know that the facts did not confirm that that could actually happen the judge questioned that suggested that that wouldn't happen i think that the facts do not show whether that could actually happen i think the one issue is legally there could only be one refund there was only one legally you couldn't get the refund at all that's how or whether you believe it was not good but  there was one he's applying for one refund it was the same refund twice so i think but i guess it doesn't make sense to me to say it's the same refund twice when it's really no refund at all i mean he's not entitled to the refund so we have to put aside whether it's a legitimate refund or once we do that i don't understand why it's not two requests for refunds that he may have actually managed to get if the i r s wasn't paying attention well i think that and you mention this at first too is intent does intent come into play in deciding the issue of can there be two claims one that's the same and i think i believe that the government's theory is that it does not come into play and that they're saying it's a presentation of this claim look at is presenting a claim it's the same claim was presented twice so again you have the issue of the same claim the same thing being given twice why are you calling the document a claim isn't it a request for a refund and once he does it he's made a claim and when he does it again he's made another claim ok i mean i don't think there's anything is there anything on the document that says this is a claim or something i mean i think it helps you to characterize it that way but i'm not sure it's fair that the cases say that a tax return requestion a refund constitutes a climate of a false claims act so i'm stuck with that yes and it's twice that's the you know and going back to your original question about the intent and this is something as i'm coach of taking about this that i thought it would what if instead of the claims being submitted two months apart what if it was one refund request filed and then a week later another refund request filed with a letter saying hey i'm i'm giving you this as an out of an abundance of caution i've already filed that happen do you know of any evidence of that it did not happen but my point is this is that under the government's theory it's not intent it's this claim under the government's theory that scenario that hypothetical could result into i believe could result in two convictions and that scenario is if there's a cover letter that says this is just a copy of what i did last week then then you're alerting the government to the fact that you're trying to make one request but you're giving them two copies but without that it's a very different thing you're actually asking for money twice  that is one way to distinguish it essentially would be saying that the second one was not another claim to take out the cover letter one week apart the same thing sent to the same i r s office under the government's theory intent doesn't matter and boom you of loss the basic amount of loss guideline so it's the intended you know what i'm sorry it's the court is to look at the intended loss or the anticipated loss ok and so the you know what the court did is it  added both both submissions so it added that one plus million dollars twice and it increased the often slava by two if they didn't  wasn't done twice and didn't make a finding about the intent the court did not make a finding now in the courts and then did the judge say something at some point about how he was simply trying to make sure that that claim was right being dealt with or something that's true and that was during i believe it was during the closing argument phase of the trial there was a discussion where the judge said look at you expect me is what the judge said you expect me to find liability for the second claim this was done out of an abundance of caution and there was some discussion that i may be a liability but i have a harder time with the  seems to me your argument about the loss is a better point because it does directly turn it into a right and that would require a finding in the government's position is that he submitted these thinking that both of them are going to pay off and i will submit to ok and there is not a finding from the court that that was the intent and in fact i would suggest that the courts comments during that closing argument would suggest the opposite and would make it improper i think for there to be an implied finding no of course the problem is that the there was no challenge to the pre sentence report so it's no wonder the judge didn't make a finding yet pro se you know and you know it's a  represented there was no challenge to the report so we have the judge's statements in a somewhat related context of the multiplicity issue but we don't have any statements about the amount of  intent only or like say he thought he was just submitting a copy but actually the government often screws these things up and gives you two refunds is it the last calculation based on either of those the like it's either intent or the actual facts are lost so if the government might screw this up he's out of luck even if it wasn't his intent it would be the greater of either the intended loss or the actual loss in this case neither one of them paid off well as no actual loss so there's no actual loss of the and they're sa intended loss was both of them because heck if the government paid both of them he would have pocketed both of them well thought there was a problem here and given that there was no challenge hey we have a plane there a problem whether it's a pla we were a man for a finding because it's no wonder that there wasn't one that's correct i think that it would be one where there it should go back for a finding because there is an ambiguity here ok based on the court's earlier statements you expect me to find liability this was done out of an abundance of caution and that was consistent with mr not comes testimony about what happened he gave it first to austin and then to fresno based upon some you please court my name is roger yang and i represent you talking to the michael better thank you thank you may please the court my name is roger yang and i represent the united states this question affirmed the conviction sentence of mr knock em because first just to court can colloquy and exercise its discretion not to appoint advisory council second the unit of prosecution for a client false claim is each making or presenting of the false claim third the district court correctly calculated intended loss under the guidelines and fourth the imposition of a consecutive sentence was a proper exercise of the course discretion to arrive at a  substantively reasonable total sentence no where are you putting your hat on the ten were so where are we going to put our hap on intent the district court recognize that in order to have a false claim the defendant has to act with intent to defraud in each unit of prosecution so when the defendant submitted the claim into the two thousand and seven tax return first to austin he formed the intent to defraud the united states and sent that claim when he didn't receive a payment immediately he decided informed the intent again and necessarily the district court found that he felt he had the intent to defraud the united states well in what about your opponent's hypothetical suppose he had said to him in a week later saying i haven't heard from you and this is the same claim again and i'm not trying to get it twice but i'm just trying to make sure you got it are two separate issues first is whether it's proper to charge and convict the define i'm just talking about that for now ok technically under the law he would have presented the claim to the pension office and present the claim over and over and over technically the same piece of paper but then what do you say i'm just giving you the same copy again because i didn't hear from you know so i guess i'm not sure why your answer isn't just no that's different and it seems like that has to be different if you're just making very clear this is another copy the case law and the statute specifically stay the making or presenting of the claim and yes it is a second presenting whether or not the government would go ahead and charge that second that's not how much of an answer because we really can't take that into account interpreting statute and be my experience is the government often does make charges that one wonders about that's occurring perhaps here yes your honor but the answer is if the defendant had the intent to defraud the united states both times when he but when a cover letter saying this is just a copy of what i did before i'm just asking again for the same thing when that show there wasn't intent it would show that he intended on presenting or making that false claim presuming he knew that it was a false claim that he was presenting again ok so if we moved to boston for sentencing would you treat that differently than it with the cover letter no your honor again with regard to the  submitted the first claim with a bunch of information regarding sovereign citizens things from the forms when he didn't hear he submitted the second claim without those documents signed on a different date with no over here has not paid me and now i'm recurring to you only because i haven't been paid the well that's that season ample we're talking about something to show that there was no party the for the purpose of calculating intended loss don't have to intend to get both don't have to tend to get paid twice how it's going to add them up you have to intend to and get paid twice or want to get paid twice whether i thought it was to get page wise and there's no finding here about whether he did and there are some fighting that he did and some suggestion that he didn't or don't you have that he waited five years and that also he filed in another office not not near that one yes you are ok and well and again this there's a case from the eighth circuit also involves the use of original is issued just came out claims and in that case as well the defendant five cents one tax return to one office and then a second tax return for the same tax year to another office and the this circuit affirmed stating that yes the defendant formed the intent to obtain both of those claims and that's possible but we don't have a fi and i understand we don't have a finding because he didn't ask for one and so what do we do with that i mean is this not this is not subject to play in error or do we send it back for a finding because you i mean as you explained it could be that intended to get paid twice but it could also be that he didn't the government's position is that the defendant formed the intent to obtain both of those claims and the district court necessarily found that when he when it convicted him of both counts two and three now just so i thought that's what you're saying before so you're saying in order to convict of both counts there really was an intent element yes your honor and the statute says knowing so are you getting where you're getting that idea that and yes it needs to be a knowingly false claim but in addition there is the underlying it needs to be a false claim to obtain money from the united states well right but as i understood your position on the conviction which seems to make sense it's that each presentation is a separate whatever whether he intended to get paid once or twice each present taishan is a separate crime yes you're right that doesn't depend on any intent to get paid twice it just says he made the claim twice yes or already attended to get paid twice or not but as to the last it seems to matter whether he attended to get paid twice the district court in fashioning this entire sentence took all this where bad by the role that he has to the guidelines right first under the guidelines it is proper for a district court to take into account all the farms of the district court finds the defendant intended in this particular case  just a court necessarily must have found the defendant intended to cause both of the losses and therefore convict do we know that the district court specifically in fashion the the entire sentence not only mentioned  the defendant tried and tried again to cause these losses but then discussed well i'm going to find you know because this is attempted last that i'm going to vary downward and so he took when the p s i didn't look at the pre sentence report which is