number one three dash four two zero seven michael brando versus u s department of treasury arguments not to exceed fifteen minutes or so mr hiding or for the  please the court my name is benjamin riding and i represent appellant michael miranda at this point i'd like to reserve three minutes of my time for a bottle mr miranda over speckly request that this court reversed the district court's decision to grant summary judgment in favor of the united states based upon the affirmative defense of judicial stoppel first the district court abused this discretion by failing to grant mr moran those request for leave to follow syrup lie in this case and second the district court erred as a matter of law by granting summary judgment in favor of the united states based upon the affirmative defense of judicial stoppel what's the best case that you're reliable here in support of your position court published in two thousand and eight yes it is your honor not by any of the know but it but upon the united states supreme court's three prong analysis in new hampshire versus maine and united states as to whether it be a poet michael moran to specifically agreed to the tax assessment as being an accurate tax assessment for tax purposes or that it was sort of spelled out  some of these other cases it what do ambiguous when it was in that in the body of the plea agreement and the attachment to the plea agreement and the amount actually paid by mr miranda oh were different figures ambiguity his position would be inconsistent utterly inconsistent with any possible position that might be supported that plea agreement it's attachment or what he and that correct correct but there's still a difference it must be applied with caution to avoid impinging on the truth seeking function of a court because it precludes a court from assessing either of the statements and their truth you know it's a little a little odd in this case the you complaining a good bit in your brief about lack of evidence and  and not oddly enough but it says that the court accepted the plea agreement and i'm assuming since that's not  either the facts of the plea agreement or for that matter on the judgment which one of the parties didn't supply which is readily available to the court it's  can't tell from this case whether he was one whether the plea agreement was accepted as a matter of anything other than the docket she or to whether he was since the accord with the plea agreement but the both of those things are readily available to both parties so it seems a little distant genuineness for use there's no evidence if the evidence were readily available it seems similarly i'm not sure why the government wouldn't delve a little deeper too i think with some of my arguments regarding evidence it was that the specific amount was not in the criminal  entry deficiency about which you could call i know there's also there's no evidence to support a finding that the district court specifically found that that was the tax assessment or that the tax l figure with regard to his sentencing you don't contest the fact that the district court did indeed accept the plea agreement i did not ok so your contention is that there has to be evidence of a different thing not the district court to acceptance of the plea agreement but an ev but evidence of the district court specific indorsement of a specific figure which is the same is the specific figure in the plea agreement correct in that with regard to the two criminal charges he was charged with the tax loss figure is not an element of that crime so agreeing to plead guilty to those crimes is not well i think what we're focused on is the inconsistency between his admission as to the tax liability in the criminal case and his later taking a exact usually in cases because of the sentencing guidelines given ranges so it's not necessary to one have a specific tax loss figure for criminal purposes and usually on the back end either the taxes go in the amount of approximately two point three nine million whereas here i think the police the parties agree that the government could prove beyond a reasonable doubt that your client owed four hundred  records they had at this point my client was still incarcerated in didn't have an opportunity to defend himself at this examination and i did mean it that this is something else this says this doesn't say this is what the iris computes it to be it is the parties meaning your client and the government agree that the government could prove beyond a reasonable i mean that's that's something entirely different from what you the ninety five and ninety six tax years as well as the unpaid tax liabilities for two thousand and two thousand i would judge and re add is from paragraph one under factual basis for  and it applies to the subsequent numbers which you agree i would agree in going on to whether there was  an acceptance by the court i'm sorry whether there was actually an unfair advantage for taking this position before the civil court there's no evidence in the record that he terms of the government's agreements to refrain from prosecuting certain other kinds of dances with regard i assume you're alluding to his ex wife and children yes and i think it's their paragraph that you know that in any of the enemy whether we got a shorter sentence or not the government assumes them obligations on the face of the that figure his sense would have remained the same leslie the i arrest or i'm sorry but he united states states in their brief that they would have a  detriment if this case went forward because the i r s destroyed many of the records in this case with regard to his examination and it is on the plaintiff in this case mr moran to go before the court and he has the burden to prove that there is a difference between what the civil tax assessment was from the service and what he believes the actual tax assessment should be and that's in really know as much as when you entered the guilty correct your honor and there was a different counsel on the case for his criminal criminal matter in which it's our belief that he didn't take the best course of action in constructing this plea agreement and he didn't have the specialization in criminal tax that would be necessary to adequately represent him before this  morning your honor scratch an wolfinger for the department of the treasury it's their position that the district court correctly determined that mr miranda was stopped by his plea agreement from filing his refund claims  the district judge correctly analyzed the factors of judicial of stoppel and correctly determined that a stop will did apply the first factor is that the parties later position was inconsistent with his earlier position and i think as judge gibbons noted the plea agreement specified as judge gilman also stated to the penny the amount of tax liability and his subsequent refund claims for one hundred twenty five thousand dollars as we honor and i don't believe that makes a plea agreement inconsistent at all if we're going to give the benefit of the doubt to mr miranda the four hundred forty eight thousand dollars would set the ceiling he could not  receive refunds for anything less than that however when he paid the additional approximately eight hundred thousand dollars it's unclear to me pursuant to the plea agreement in which he stated that he had reviewed the plea agreement and he and his attorney have both discussed it why he paid the additional money but he had a remedy certainly during his incarceration and when he was on release to come back in and ask for the refund of that additional money which he refund action bears no relationship or these refund actions bear no relationship to that eighteen thousand dollars if you were coming into court and asking for the refund of the additional money that would be one thing but his refund where the additional money went well where it came from that they originally estimated that about that was owed then we could pick up another thousand later in the process i don't know where those those numbers came from your  and being sentenced so what what with the plea excepted clearly i mean you know how do we know from this record i think presumably you can rely not only on t case that there was some sort of clerical error in that docket interim eleven but it's just a little i mean probably in this court says the judge says in his order he accepted the plea agreement but we don't have a transcript that has his head saying that i can't send it reflected in the judgment i mean we're relying on a documentary and then the district court sign yet i mean nobody we don't have the underlying record is what map away i understand and that may be in fact because this case was brought between five and six years after the plea agreement was signed and i don't know what kind of record keeping the courts do but i would information i mean unfortunately we've started shedding arc but so you can't go back necessarily twenty or thirty years but you should surely go back five or six i would think that there were two points to be made certainly the presumption of regularity as as your honor has indicated the judge said he accepted the plea and also the judge but because the docket fifth i would not necessarily say that your honor the judge that handled the original criminal case is also the judge because he fit though in his or her yes so presumably if he had any question about what occurred it's the same judge that handled the criminal case as well as the refund suit so he should have known what he did secondly i would imagine it's also if you're in your honor indicates it's possible that this wiranto spent significant time in jail had the plea agreement not been accepted it's difficult to you've got a burden initially is on him to come in and say what he believes his tax liability is the i r s might disagree with that and the i r s would go then go to its records to see whether his presentation or his belief in his tax liability is correct they can no longer do that and i believe also as judge gibbons pointed out the united states has now lost the ability to prosecute other members of mr mirand lee certainly his wife for any tax offenses the statute of limitations has long expired and as his wife signing the tax return she would have been jointly and severally liable for the tax liability as well she would have provided another source conceivably of collectibility and the government has foregone prosecuting her i guess you know what i guess a lot of the cases the fundamental bedrock of judicial stuff was this what new hampshire versus maine from the u s supreme court in two thousand and one about the boundaries between new hampshire and maine over what the waterways or whatever or something lobsters i don't know what they were bluffing about but it clearly that happens to arise out of a tax offense but all the government is seeking to do is give effect to the police agreement that was entered into with this i mean i'm not sure i bad that it just happens that the inconsistent position  litigation was taken in a criminal case not a civil case i mean why should why it should why should the criminal nature of the perceiving give it it make an inherent difference and my point was it's not the criminal civil nature it's it's a plea agreement that's been entered into it doesn't matter what it's interacts case well it's i mean one might argue for example that it's a very formal with that at the it's an admission to which he should be so because the nature of a plea agreement is that it is a very formal but it's not the criminal nature in and of it no and if you want to look at it in a perhaps more broad context it's essentially a contract between the united states and mr miranda and the united states has performed its obligations under the contract including regardless of whether the district court accepted it the government stood up and asked that mr miranda receive a three level reduction for acceptance of responsibility which was contingent on his payment of the tax liability as well as his acceptance of responsibility for that amount of tax liability so regardless of what the district court did with the three level reduction which i do believe he accepted the government made that recommendation it didn't stand silent so it has performed under the contract with other here where one way or the i think all the plea agreement required was that right but as i explained the eighteen thousand is unrelated to the refund claims he's bringing me again the point at which the money was my understanding was that it was a condition  precedent to the plea agreement that it had been paid certainly by the time of sentencing but had been paid pursuant to the plea agreement roughly contemporaneous in time that was my understanding so that would clearly have been something that would have been taken into account in the senate thing in deciding whether to grant acceptance of responsibility so they began your honor i'm sorry that that's clearly something that would have been taken into account yes siding whether to give except it's a response course we know all that have been by given to the grand script or a transcript of where the the court said i was a district judge for a long time i like to look at it know the only other thing i can suggest and the court may have already looked at it and it is also not in the record is the pre sentence report and that would include a sentencing calculation well the the pre sentence report would be available but it's not docketed so we wouldn't have a way to get that without the parties providing it to us with the big difference here is you have the same judge who presided at the criminal matter that was in the civil matter so they probably did they didn't record because he remembered it and nobody  contested the fact of whether he gave three points or two points or whatever it was for acceptance of responsibility yes we don't know it but he'd pay obviously and what he said he should have yes your honor well  it's kind of it can be an analogy as to the situation where you're the district judge considering a twenty to fifty five motion in a criminal case and the defendant makes an argument which you know is not in accord with the facts as they occurred at trial and if you're the district judge you'd probably attempt to set the record straight you probably wouldn't get a transcript there or there might be things like the demeanor of an individual that a transcript wouldn't show up and one would hope the district if you're the district judge that the appellate court would give some credence to what you had to say about it and that's the kind of situation we've got i have a few minutes left with the court like me to address the sir reply issue gauri whatever you want to do we maintain that it was not an abuse of discretion for the district court not to entertain the sir reply i think it was clear that the judge correctly analyzed the factors under judicial of stoppel the sir reply was essentially only one paragraph that spoke to one of those factors and it was clear from the status conference that the government's argument was that the honor yes we did your honor last minute right and that in some way speaks to posing counsel's discussion about the fact that the amount of the tax liability for collateral estoppel purposes is not an element of the crime so i believe that he discussed that a little bit in his opening presentation about the fact that we had specifically agreed on the amount of the tax liability that that's not an element of evasion but that is a collateral estoppel argument not a judicial your honour's i'd first like to address the so reply issue the government didn't like it was at the last minute switching from stoppel not only in their motion for summary judgment and their amended answer did they say that their affirmative defense was collateral stoppel it was only three days after that amended return or amended answer was filed in which they switched from the affirmative defense of collateral stoppel to just will stop or in which mr miranda had no opportunity so what's what's the procedures for have the server and as i previously spoke to a position that is not clearly inconsistent our position now with the plea agreement because of those ambiguities in the plea agreement it does allow us now that because there is a difference between what was paid and what was in the plea agreement instead of just allowing us to claim that difference we should be able  to because the difference is there it is our position that the judicial stoppel does not apply and therefore we should be able to bring evidence before the court to show what the accurate record explain why your client  is not and what evidence would you have presented we during discovery we provided the government receipts bank statements upon it and we don't know whether it was considered or not do it would be my position that it was not considered because not only was the only other outstanding motion specifically mentioned and granted in the opinion in order also in the opinion in order under the caption it states which three docket number docket number of motions were being resolved at that point doesn't refer to a reply as is being docketed i mean if your time and motion your time and the motion the docket correct and it referenced the motion for summary judgment it referenced the motion to