more now on united states of america versus mark whitehead correct and that's eighteen dash five zero one one one and each side has to have good i guess good afternoon and afternoon your honor rejected the idea that the statutory maximum for contempt should be life and instead determined that the most analogous offenses should provide the statutory maximum for contempt although mr whitehead is arguing is that that most analogous offense jury found i mean arguably i don't think the jury found fraud at all beyond a reasonable doubt it wasn't even part of the charges it wasn't part of the instructions and it wasn't part of the verdict form it wasn't even in the receivership order and the final judgment that he was alleged to have violated the word fraud appeared nowhere in these documents whose burden was true to ask for a special verdict oh your honor plea was the the government's burden i mean it's not our job to tell the government what elements they should be seeking to convict the defendant under and in fact i think this court has found well in the judge told the back question is the question is should you have should you have said we we'd like a special verdict your honor again i don't think it's our burden to say you know the government i mean at the point that the judge said that they were seeking a fraud finding the government the government in no way way for us to have somehow asked the government to seek additional elements to prove against our client i mean an analogous context is again in the drug context where they often are required to find the drug quantity and in in this analogous context i think the circu cite summary contempt proceedings are distinct from full contempt jury trials and several the cases stated in that footnote discuss how all the constitutional protections attach to a full contempt jury and so i think it's clear that without any possible finding and by the jury that fraud was committed here in indeed we don't even have a unanimous jury verdict on which of the four acts that mr white had allegedly committed there's really no way to determine what that was necessary for the jury verdict and in fact again i would argue that fraud was definitely not necessary for the street verdict but i think just as it's clear that the jury here didn't have to fight mr wade had acted fraudulently or stole i think it's equally clear and this is relevant to my issue that the court only did so by relying on facts that were in even the front of the school jury and you know the printing issue really highlights really the extraordinary nature of this proceeding i think the government said it's only an recusal was actually a judge acting in traditionally and that still provided the basis for accusing in that case you know furthermore you don't have to prove constitutional it usually isn't about the actual in the phrase we don't have to prove your argument be better if this were a court trial like opposed to a jury trial a court trial oh well because the judge didn't find him guilty a jury found guilty rather i think that that argument really undermines the role of a judge and presiding over a case i mean and your honor with that i'm going to try to reserve the rest of my time for about a listers other the the the prosecutor says i want to treat this as a misdemeanor with a six month crap and we don't even want to jerk the judge says no it's not enough  the lower courts multiple times basically and it was myself show up to court at the initial bands and right before knowing nothing about this case so we kind of tried to before we didn't know the facts and the judge said there's i think where we draw the delineation is the order to show cause which set out charges the government the u s attorney's office has the discretion to go forward on one of those acts all for them to indict on  judge no judge we're taking this case well i can tell you that we could and for example in about the real world now and i actually think that it's a possibility that it could be saying i'm referring this to you and this is what i want you to do and it's a difficult situation for you to say i'm talking about a practical matter of minutes and could you know judge i understand and i and i understand both the practical matter and what i would boil down to it is both will forty two allows it or discretion allows it and when it when we sit here at the refusal stage which is really what we're addressing at that the judge didn't do anything wrong either in the initiation process or any step thereafter and when i say doing anything wrong whether it be under the statutory provision four fifty five the statute in the case is awaiting to happen and what i'd also point out is if you look at will forty two itself it even thousand and forty two a three eighty eight provision when the judge should recuse himself if it's aimed at the judge or in the judge's presence that's not the case here so carney's decision based on all the facts a logical implausible or i'm drawing a blank on the third part of the abuse of discretion standard but it's not it was an abuse of discretion not based on the case law under lip little kia late geek not under the constitutional case law and while it may seem unique and different and especially as a judge provided certain facts in this case it really is not that unique and one of the facts that comes up in a lot of these recusal cases of just what you were just reports that you know you may have made some certain findings that sentence and said certain things about a defendant  first time around and somehow some way that comes back on appeal you are expected and you are presumed to be on biased to give the next opinion and there it's a waste of judicial resources to keep moving cases around just because the defendant thinks he won't get a fair shake that's not what the law is either either under the statute under the constitution under the case law and therefore there's nothing in this case that would require recusal judge harney properly analyzed all the arguments and all the case all and said it's unfair to presume judge stephen did anything improper and actually on the contrary she did everything properly in each of the steps we talked about before that you mentioned about her denying all request sixty one to seventy eight months or something along those lines and sentence them to two years they don't even challenge the appropriateness of the sentence other than a plan and since i have a minute left i'll just direct that real quick curious i would like to start by saying judges do have direct discretion in selecting the appropriate guidelines that apply to a sentence but they are bound by constitutional but by the constitution into when they try to select the statutory maximum there is requires that the statutory maximum be determined by the most analogous offense and prend the dictates that that kind of finding should be kept has to be based on the jury's verdict and if it's not so it has to somehow the jury has to find the what b exists is this carve out that none summary contemporary seedings can proceed in front of the same judge immediately i'm sorry summary contemp receiving can proceed in front of the the same judge immediately and so i think that that's an important distinction the distinction between non summary and summary and that the one that existed here again i think this is an extraordinary referral i tried as hard as i could to find other with forty two referral examples that have come out of the central district and again in most cases i think the government stepped in and proceeded by indictment of some kind  would never even saw that document never forms a part of the record of the separate criminal proceeding but that didn't happen here and the full forty two referral went well beyond what's required by the rule in terms of what it's supposed to do it's a simple notice provision that's meant to state the