before you start and maybe you could give us a little preview of the structure of the structure of this other week and see if that's going to make some sense in terms of our trying to address  here the co defendants have agreed to waive to rely on our briefs who are independently raised assignments of error our intention was to discuss with the court the re reversing all convictions on this case for defendants is that after a twenty five day trial in which numerous issues were raised and ninety eight number of witnesses were called the defendants were precluded the defense counsel has been advised what the instructions will be is whether or not the court can say that if the court cannot conclude the closing was not impaired and that involves a lot of negatives there but i think that's the way the standard is phrased that the court cannot conclude the closing was not impaired then it should reverse the conviction and that is certainly the case here in terms of the statute of limitations issue that was in the issue that the trial court acknowledged was a major issue in the case many defendants moved to dismiss the case based on statute of limitations grounds which on the indictment which were denied it was an issue that they were concerned about certainly was some of the latter counts to count six and seven for mr anderson the actual acts of a vacation alleged were outside the statute of limitations and planted in the indictment the jury question itself at least provides an inference that the jury was seeking to look outside the indictment for overt acts and with that let me just get a factual question know i think that'll probably get your first question as well answering back to what and where those issues addressed the example in fact that the government used in hearing with the names incorrect their testimony was in volume twelve of the transcript and they said dr kirk i'm referred to mitchell's in his closing argument that would be an overt act that the jury could consider in fact the mitchell raised it in closing argument to say that's not a part of this case in fact there had been a limiting instruction to the jury saying you're going to hear testimony on occasion that relates to only one defendant may be bad acts we instruct you that if it relates to only one defendant it goes to his state of mind keep that in mind with these two defendants the judge did say if you think it evidence relating to c specifically can establish that mr dr kurgan's injury into the conspiracy you can consider that one of those after a number of those acts with the only one really relating to c p a took place in his bad ass and now after the jury's been deliberating for twelve hours you even have the prosecution the government saying hey you know just off the top of my head one overt act of bacon used to convict all defendant be that the testimony relating to that dr kirk i'm in the middle so if you under you know understandably over twenty five days well people in the jury and we assume rely on the instructions of the court we have to be realistic in that and that is why i think it goes back to not can you show prejudice as to what specific things you would have argued what is council given the opportunity that is that's my point in terms of making tactical decision and one that perhaps yes maybe dorothy flowers attorney would have focused mostly on her kind act and restructured his closing argument to say look at these acts that they claim  close to tying her to the conspiracy look at how long ago they were and you know perhaps he wouldn't have addressed dr griffin but there certainly was a tremendous amount of coronation you can see throughout the the case they may have made a tactical decision to rely on someone else to that the judge threw the defense attorney off on in closing was really quite brief in the closing and they said you know in that context even though it was nearly overwhelming and it was only a portion of the closing argument that was this precise issue is raised and the court of appeals just not reversed and in that instance the judge the judge actually added an element to the state's burden that to defend it had not facts were that he had been sitting there and then suddenly in the cold and the ninth circuit said there was nothing no evidence but the defense attorney could've come up with and therefore we can find no prejudice  just one i wasn't sure i was catching on and then on the overt acts and we've obviously focused tonight and i think the court's attention is focused on the closing argument aspect of the overt acts but i did note that there was a case that was quite procedur however and therefore they did not argue that issue as they might have otherwise done it's axiomatic that a person may not be convicted on the basis of acts that the parties have been told cannot support a conviction other than that quote it was quite procedurally different but i think that's exactly what happened here they were first argued we were told you can only convict on the basis of the ast listed in the indictment we argued the case we did not problem of course the jury has to follow the instructions but if you don't know what the instructions are how do you make your argument to the jury on such a critical question in this case  to them to hear argument on why if they couldn't agree on anything out of the forty one that was before them have focused argument you probably wanted to deliberate so they would help them understand one tie that into the standard of how one structures one's closing argument the language of the indictment and the evidence at trial clearly put the defense on notice that the government was going to put on evidence and then the thing that would have to defend against evidence of overt acts other than the forty one listed in the indictment for example the indictment alleged that the coconspirators committed overt acts including but not limited to the following and then  indictment says because it's not limited to and the court properly informed the jury yes and in frank's the court recognized that there is of course flexibility in proof because we can never expect a trial to be an exact replica of the information put before the grand jury or the language used in an indictment and so long as the defendants are on notice of the core of criminality the nature of the offense against which they must must defend it's it's ok whatever reason he didn't he didn't give it to them during the liberation of the jury i obviously after reading that focus their attention on the dates of the overt act that they were looking at so i think that it's clear beyond reasonable doubt them to raise the statute of limitations are they did not attempt to during their closing argument to raise that the reason they claim that they were precluded from that is that the court's proposed instructions did not include a statute of limitations instruction but they it's not it is a pretty straightforward question when did something happen and there was so much evidence that this conspiracy was ongoing until virtually the time of the indictment that it defies belief to the local conspiracy issue and versus thing go yes i one thing that i'm choice about with respect to the government's theory is that the mere membership jury that they needed to find among several other things that the defendant willfully agreed to engage in the conspiracy that was alleged in the indictment that in a broad conspiracy to  occasion the court said you must find that the defendants agreed to participate in the plan alleged in the indictment ok so one of my questions is why why isn't each of the defendants in effect find out to that agreement how are they joint he was recruiting people all kinds of people to come in and use e p a look at stories save your money will be safe there you can hide the fact that you're making money from your business mr anderson was using the service a for almost a decade he would change the name of this business so that it would be commercial printing and art so that all checks he received could be payable to c p a so that when they were commingled with the other account holders it would be even guilty of conspiring merely joining c b s i don't believe they would i mean that certainly gives an explanation of what they or their whole thing is about but if you i believe you're going to government exhibit forty five and if you take a look at that it does refer to other kinds of things so i believe that it's possible i don't know what really happened but it's possible that someone could have  n knowing about what they were going to do knowing the whole thing and at the end of the year he filled out his tax returns and mailed it in we certainly couldn't say that person was evading their taxes or were preventing the purpose maybe more purposes maybe they really wanted to have you know purchase gold or whatever but at least one of their purposes was to impairing impede internal revenue service in the carrying on of its proper function and i could ask you  acting mostly on his own in a conspiracy for him self only then as outlined in argument that would be our argument on multiple conspiracies turning to some of the statements that were made regarding the statute of limitations issue i guess the first issue would be preservation of the trial court itself found that the over the statute of limitations request was preserved the court noted and i provide him with all the instructions that were appropriate defendants also sought a special verdict for it with the overt act would have been identified and may have resolve these issues so that was not used the court made it very clear at the hearings that he was getting a conscientious review of everything submitted and he wanted the most precise make your record sort of thing which i know just recorded sometimes do not completely understanding the preservation issue but he did start to quickly say this issue was preserved there's no question so we're of the front of the stand so you go into the argument thank you notes an unlimited november ninety four cut off what would have been better for your argument and yours as it is you got a chance to address them all so what is the cutoff they would have done other than question when the defendants requested a statute of limitations instruction and in fact reviewed an instruction that said you were limited to the acts outlined in the indictment which i will get back to you that is how the defendant they could have pointed out the different acts that were present those but also they could have pointed out whether the overt acts that were in the indictment that were appropriately timed were in furtherance of the indictment and maybe there was a stronger argument that those were not in furtherance of the indictment and maybe the arguments wouldn't have been able to quickly disregard the ones outside the statute of limitations and focus their arguments on the ones that were inside here you go beyond that because you're not just looking at the indictment you're looking at the whole scope of the trial much of that evidence was introduced for different purposes and the government is entitled to introduce evidence of agreement and in fact during the closing arguments the only references that were made to these other acts were relating to agreement not to whether or not it was an overt act in furtherance of the government everyone you know your happen been deliberating for twelve hours or so they had perhaps an overt act specifically in their minds perhaps not it was too late for defendants to get certainly on the fly that structure an argument that would say ok now we know you're going to consider the whole world of overt act and we don't know what you're thinking but we'd like to go think about this issue from day two of the trial don't think about these issues have been nearly impossible to do that the judge gave the parties half an hour to come back with their agreement and then overnight to instruct the jury and he said no they're deliberating i stop them from deliberating i want to continue with this process but judge said you know i've reviewed everyone's instructions please let me know anything you specifically want me to look at and we did draw the court's attention  attention specifically to the open start to the limitations instruction and said to the court you know please take a look at instruction number twenty nine we want you to look at then the judge took the instructions provided by both parties came back and i think i outlined in the reply brief essentially adopted the government's instructions and said you know here's what i'm going to do here's what i decided at the time has  records defendant's preserve the system as to whether you would want to go under kesey and he would have been futile to make a further objection if there wasn't one of the at the appropriate time immediately for argument or if you simply want to say it was preserved either way it's not a plain air standard because the judge made it clear that he was aware and that he had decided not to get close to the you know sort of response talking about for me conceptually your honor to keep them both out i would say if you stay within the indictment then our argument would be that you know those facts the limitations issues are all outlined and the to impose consecutive terms despite the fact that the guidelines would have called for the sentence within the maximum of the primary offense in other words the guidelines for the suggested the concurrent terms were appropriate in the district court wanted to impose a