improperly raised a statute of limitations argument which the government had waived the district court in bend denied to the defendant's post trial motions based upon the same issue in which it improperly reduced the district court had no authority to raise clause three of the wartime suspension of limitations act it was not raised in the government's briefed and it was not raised during oral argument on post trauma motions so that there are no distinction between a waiver and presenting part of an argument and adding to it so judge states you i think what happened is that initially the district court itself  as you said raised clause three the government initially only argued clause one the string of cases that i'm relying upon of the district court's authority they talk about forfeiture and not waiver and clearly the government failing to raise it in their briefs or during oral argument and before the st opinion was released in this case that was a waiver and so the district court court says that the situation here and the government failing to make a number of arguments would not be in exceptional circumstances to the point where the district court could step in and essentially defeat the statute of limitations claims that we were making usually courts have to scratch and to excuse or features why should we think of this as a question whether the district court abused its discretion and in thinking about that question take account of the other point judge rogers made which is they did preserve a cla argument and frankly there's not that much difference between these three clauses as i read the statute so judge st of all i would i would resort back to the fact that i think that was a waiver that occur i think it's pretty clear in this circuit that an argument not raised in a reply brief is waived and you know basically violate the party presentation doctrine you know the government is supposed to submit arguments the defendants admits arguments and the court acts as a neutral arbiter and that didn't happen in this case and it would be the big one thing if it was an issue that was raised and maybe addressed but this was the sole issue that the district court relied on to deny the defendants claims the ineffective assistance claims and so that's why it's so important how do you want to push back to suggest that there's really not much difference between the three causes well  if there if there were so that the district court held the clause one did not apply obviously we're not challenging that i do think there are important differences i think clause to address is surplus property real personal property and of course the long funds at issue here didn't apply don't apply and you know clause three you know should be nearly construed in in favor of repose and you know that there was no rational next nexus there was no direct connection or debt direct relation to the authorized use of military forces research on clause two well i understand your point that the legislative history tines it to the surplus property act have courts limited cost but is there any suggestion it should be so limited that the courts that have addressed clause to they didn't really perform a lengthy analysis but you know i don't think that the statutory history should be you know completely ignored you know the super supreme court's touched on it the number of times and you know it's pretty clear that cause to really only applies to cited in my in my brief i thought was pretty on th there was a th circuit case as well that talks about when a statute references only money i'm sorry when a statu and i think it was  research performed on i declaw one or two the trial counsel took the statute based value and failed to recognize that there had been decades old supreme court precedent that addressed the elements test which the district court agreed so i'm not sure that that is necessarily just cause and ineffective assistance of counsel claim i mean we have taken the position that if there's nothing out that would put them under clause one but i think i think what you may be referring to is his analysis of the money laundering counts which he relied on the specified unlawful activity of being the fraud but of course the elements t focuses on the statute not what the specified unlawful activity would be i do see i'm out of time so if i could either reserve time for rebuttal or i can obviously continue to answer your questions let me be sure morning your honor it may please the court scott and his lawyer from the department of justice on behalf of the united states can all members of the court hear me ok yes thank you so much i'll begin i'll address the statue limitations issue which of which of course we believe has to believe under the supreme court's decision in what vs miliard which is the main authority the appellant has invoked that this amounts to waiver in any way what was a case your honor where the state and the state in the hideous corpus proceeding had acknowledged in the district court the availability of a possible statute of limitations defense against hippias corpus relief and basically elected explicitly elected not to raise that and asked the court to resolve the issue case on the merits in the appellate court for one at a motions hearing the district court expressed the view that this case was perhaps best resolved under clause three and when it issued its memorandum opinion it indicated that it was not inclined to address cost three without giving the defendant mr dos a issue and only deciding the question afterwards and in fact your honor the court ultimately received i believe two rounds of briefing on this because it is st it st issued an order where it held that this tolling issue was probably one for the jury and then only on reconsideration after another round of briefing that it ultimately decided the prejudice question that turns on the construction of cost three dollars of the ws l a so i really don't think it's any kind of prejudice if the court is looking at this is a forfeiture in the course discretion i think the court should find no abuse of discretion the circumstances it may not be prejudice because everyone had a chance to brief clause three after the district court raised it but what's the justification for the district court injecting this new issue into the case nor normally we do enforce or feature and there has to be some good reason to cases that i wish i had handy but don't i think this court and the supreme court of number of times said when a legal issue a legal issue a statute is are raised before a court the court is not usually limited to the exact arguments the party makes under that statute is this is not a situation where a court is injecting something entirely new into a case as your honor mentioned differences make system on the clauses in the statute but there are times subtle and so i don't think it's outside the range of district court discretion to tee up an issue that hasn't been so the defense timely raised limitations a way to take out the i a c overlay and you timely raised clause three as well as cause one close and hard question your honor and in light of this court's decision and it will send the court discussed at length in our in our briefing below in response to the motion for consideration we thought we said that we thought the court's position on this issue was reasonable i think it's difficult because it seems like it's it seems like the a plucky ability of the statute or not is part and parcel of a statute of limitations to france which is normally america's defense that a jury would gone to the jury why isn't there prejudice strickland prejudice in so far as the defendant last chance to half the jury decide that issue not and the district court itself told us that had the issue been properly teed up would have submitted it to the jury so i think your hon that might be enough if the defendant's claim were simply that he wanted a chance to get this sorry i think i think that may be enough your honor if the defendant's claim was these counts never should have gone to the jury right in the st place saying that if the district court were the appropriate factfinder he would resolve the limitations issue in your favor that's different from saying that no reasonable jury if given the chance could have resolved it in the defendant's favor i think that's right but i don't think the no reasonable jury standard is the right one under strickland i think you have to say is there a reasonable probability that reasonable likelihood is racist likelihood that the defense would have prevailed and we don't know all we know all we know on that question is what the district court said in  the st order which is that there's enough evidence there's enough evidence on both sides to send that to the jury right now i think very your honor we made this comparison in  our in our brief footnote thirteen of our brief and on page fifty one i will compare it to the know the case from this court where the question was whether a is ineffective assistance counsel involving addressed offense whether defense counsel should have put on expert testimony regarding battered woman syndrome to get to justify essentially an instruction under arrest and this court made very clear in that scenario it wasn't just enough to say ok the st step is should you put this on to get the instruction you also have to show in the stricken posture reasonable probability that once you got to the jury it would have resolved this your favor i think this that's me is this the right analogy here you can't just say shit should i could i gotten to the jury on this the question is if i got there have i shown a reasonable probability that the jury would have resolved this in my favor i agree with you on that but in order to rule for the government here we would have to find no reasonable probability that the jury would have resolved it or the defendant correct that's correct and i think i think and that's that's i'm trying to write i think we have we have we've made in our vendor pronk one of strickland's house right that council was not and i think you're on the problem on the prejudice question on the question of how the jury would have resolved this i do think the best indication is that the district courts view the district which presided over this trial heard the evidence including defense counsel's reading the statement from colonel britton about the importance of mister dusts mining operations of stability in post war and post combat operation afghanistan the court heard that evidence was the most familiar with it and so while the court was is this your honor correctly pointed out explaining how it would have resolved the case argument about clause two about the real property versus movable property issue that one in your honor so i think i think that on the face of the statute it was reasonable for defense counsel to read real or always had something else in mind and i just try to understand how do you move beyond that when congress had and knew it had all these other provisions to get not just a temporary wartime measure it actually move the clauses around and broaden the language of what is now clause two to its current form and so it does not have just a reference to the surplus property act that's temporary act it instead embraces what we think on its face prison much broader language real or personal property and it has terms like custody or control that we figure often used to refer to money and funds the bank fraud statute for example your honor eighteen u forty four talks about custody or control and no one disagrees that the bank fraud statute applies to money so we've included some cases your honor including the th circuit decision and north carolina district court case and the rd circuit case considering a federal will use language like personal property and read that to include funds so again because the court is looking at this through the lens of ineffective assistance of counsel when asked and asking whether a reasonable lawyer a competent lawyer looking at this case back in two thousand and seventeen with a very limited body of case law could have concluded that clause to reach is this and that he shouldn't raise the objection i think the answer is yes that's the framework we think you should look at it the court doesn't have to decide here doesn't have to authoritatively construe clause to find that counsel is not in effect a for taking a statute on its face looking at dictionary definitions like the one in black and adopting a plain language destruction of cla two that is supported we think by the case law that does exist on it can ask a different question about clause two and how the three clauses relate it at the end of cla the language which is connected with the related to prosecution of the war does that clause modify just clause three or all three clauses and it's being argued in the th circuit in january so i mean that reading seems perhaps grammatically more plausible but it would produce some seemingly astounding results i mean it would have to say that take take laws on any offense involving fraud against the united states would have to say there's there's been no statute of limitations and also claim defendants criminal prosecution of the doctor for fraudulent billing and medicare has no statute of limitations and the clause to issue raises the same same issue we've been talking about in connection with clause three which is is this is this kind of development project related to prosecution of the war which may be a fairly liberal issue yes i think if you rejected our view of the statute then that it would then the language would of the defendant's argument is that this case is not something connected to the prosecution of the war is at least an argument that that concern covers cost to no itself has applied a construction clause one that would reach the major frauds and wire fraud counts here without asking whether those are directly connected or plus one is out of the case on different grounds on on the right  include the following clause or with any disposition of terminations inventory you're saying that whole thing applies only to class three let me just look at the statute going to be one i'm sorry is again i think because part of our argument there depends on the on the natural history of the statute i actually just don't recall your honor whether that piece of the statute was part of the original version or was added some in the order i mentioned and i think for quote the induced illegal transaction not the made false lead and hope what does the phrase such as this one  in other words a basic question is is what is the limitation that seems to be the limitation you're suggesting and i'm not sure i know what that means it's got i think what if i remember correctly when i think i was just and then said it didn't foreclose the possibility that under some circumstances and multiple justice this one all right what i'm getting at is the district court followed the th circuit yet we have a series of cases where we looked at the language of the indictment all right and the district court really didn't discuss that in addressing  you don't pick that up in your brief and that's why i'm trying to understand what does the government think is the limitation here sorry under the limiting the limitation on  publicity right so i think your honor our view is that this is a different case than gerry because each of the fraudulent representations even though they were in the same dispersement request  the loan triggered a payment in a different amount to a different payee in a different country i think that i'm just i want to be clear that could mean every dollar you know if every one hundred dollars dispersed to different vendors but i thought your reference on page forty one was trying to draw some way of limiting what was going on here and i thought maybe it was a reference to the terms of the loan itself i don't know that's why i'm trying to understand yes no i take your point i would distinguish the two different multiplicity arguments i do think on the st multiplicity argument regarding the major fraud counts but the terms of the loan itself is very important the district court itself focused specific unanimity instruction to ensure that it is obviously in the hypothetical role where this is and one count to ensure that jurors unanimously agreed on which false statement they found mr dos to have knowingly made what we think underlyin government that whereas alone itself calls for transactions that are discre that is not the multiplicity approach in other words and grew as we cited a case where somebody you know taxes over a twelve year period so every year you know he didn't pay his taxes of conduct so the argument here is that you took out this loan and he didn't pay it back right so i think that that is an area of your honor i think the district court did follow bruce yes it looked to the th circuit as an i think a helpful summary of what kind of factors the courts of looked at in the bank fraud concepts analogizing to major fraud cases but what it said were said look you said you want to look at the indictment and i was trying to p your honor to a couple pages ahead of where you were looking as i think a couple pages ahead of there you look and this is on page for me this is page eight of the appendix under manner and means of the scheme and  the marble mine so i think the way the indictment describes the scheme is not as this single act of you know fraud in the inducement it's continued fraud just got worse the beyond that bruce was concerned about notice to the defendant that's why i on page thirteen as opposed to this general statement which could simply be this was a single transaction a single loan from a co pay right and i think your honor and i think before we get to page thirteen on page ten disbursement request he's only there for and he has therefore as a new a new and different obligation to be truthful and to take one step back your honor i think this is quite different than a case you can imagine a case in which mister dos lied in his loan application and said you know you misrepresented the collateral as ability to raise matching capital contributions which was a condition of the loan but then when it came time to submit the reimbursement requests he was scrupulously honest in april july or scrupulously honest that would be a one count case because he had another occasions to be dishonest the actual financial risk and flow of money out of a pic scoffers occurred in three different stages multiplicity is i think in the scheme cases very weaken the district court correctly applied kind of consensus principles from bruce and other circuits law and again because we're looking at the lens of ineffective assistance of counsel you also have to ask what's council on reasonable objectively on reasonable would no competent lawyer this claim would have failed that's the test of prima vs more charges could it enable trunk counsel does so sufficient doubt to sway one juror so it's not collectively what a jury would have done it it's what does the evidence to sway one juror and i think that's that statute that would fall into the abbey case which of course deficient performance and i think the exact wording in that case was the failure to act on a reasonable probability and probable interpretation of a statute that could benefit client again and mohammed expands on that and says you know only when such a reasonable investigation and in this case  seventy four and that's that's the attorneys ignorance on a point of law which is fundamental to his case combined with failure to perform basic research that that's actually the exact wording that case is the unreasonable obviously correctly stated in that and i believe that's the binding case here there was a single scheme to defraud that was the same victim the same bank and the same methods were used and that's exactly what has happened in this case and you know we talked about the th circuit briefly the right meyer case i think is also controlling even though they have a different standard that what happened in that case is there was a claim for false payment initially made and then there was a subsequent meeting where they made the same misrepresentations to garner the same amount of funds so their financial risk was not new when there wasn't a separate set of funds and that's exactly what happened here the loans that was approved and there were shell you know the alleged shell companies in this case had been created prior to the provable of the loan in our case was when the loan funds were for that is when the bonds can no longer be used for any other loan applicant and this circuit holds that that is when it is executed and the