which is issue number one and specifically i'd like to speak briefly i know i will need to get a prejudice and i intend to do that but i would like to speak briefly to that first category of misconduct about the statements that christie would not accept responsibility and i'm i think it's important to talk about this because the government has not conceded that those statements were improper and so i'd like to speak to th times once during opening statements and three times during rebuttal argument the prosecutor told the jurors they needed to help mr hold mr christie accountable because she would not take responsibility herself the government says asked the jurors to convict mr christie and hold her responsible because she won't take responsibility herself and so what concerns me about the government not confessing at least misconduct on this point is if the government is right that it was ok in this case then it's basically ok in every case for a prosecutor to argue that the defendant has refused to take responsibility the government doesn't really point to anything so the jackson case i want to distinguish as well because in the jackson case this court held that a statement that the defendant needed to man up was ok but those were very different circumstances because the jackson different had in fact confound that case was a bank robbery and the defendant fled afterwards in a van i think and there was a wreck and two people were use with the statement we're just focusing on the reversible plane error standing alone or do we need to sack sack the rest of them for purposes of your argument the statement one of the prosecutors closing there were these improper statements and so i've asked the court to aggregate them to see that makes more sense and because they also with the failure to take responsibility remember that was part of the opening it's it's feels clear to me during the closing arguments a trial that it becomes extra clear thing when he asks the judge to hear a high and guideline sentence because she stuck out her jaw and refused to plead guilty counsel could i ask about your argument regarding the money laundering yes found the intent element in the money laundering statute require e loan payments that they were made with contempt to file a false tax return or would you agree with that so far yes well that's what it says so why didn't the government satisfy the intense shelling by showing that she made small loan payments to mask the fact that she'd taken a large amount of cash from the bank so i think the the i r s because it's the i r s offense that has an element of the c in it because you're making a false statements to i r s and if you are putting money in a certain place with the intent to not tell the i r s you how but it would be the way she made the law in pains i don't believe some of their evidence that the way she made these long payments was pretty much the saying that she made the loan payments before her was there something different about them name well no i i'm trying to i'm just trying to pin down your argument a little bit more based on the evidence so if you had to complete this sentence what would you say upstart about the government or a reasonable terry could not convect beyond a reasonable doubt based on the evidence presented because you tell me the rest because these financial transactions open and notorious nothing about them suggested they were intended to hide money so she wouldn't have to report to the i r s or to structure a transaction so nobody would notice she was moving this money around there's no moving money around they're simply taking it to the bank i feel that i have not satisfied your honor i'm not sure this is fairly common criminal behavior among  she at the beginning of the sentencing proceeding personally address she was and the judge said later on i will come back and ask if you would like to say anything but when he did come back and ask he didn't ask her he asked her counsel and by the way there were there like forty some pages of transcripts when that original statement that the judge made to her and at the point at which the judge spoke to counsel and counsel the problem here and i recognize it's a just a subtle one that is that th bustamante culture but a lot about the requirement that the address be personal so the green the u s supreme court case it's a green argued that he was not addressed personally and the reason he loss is because the transcript reflected the judge the morning her resume please the court my name is jared magnus cysteine ited states attorney for the district of kansas and represent the united states in this matter obviously there is a lot to get to today and i want to be responsive to the court's questions so i think we pitfalls of looking at it in a vacuum i think when when looking at the transcript from from beginning to end and read in reading the transcript reading the questions looking at each individual specific point in time where the allegation is made and look at the context of where it was made viz a viz the totality of the circumstances the militant approach i think if it bears out that it is not as as egregious as the defendant would make it out because i think it is easy to look at it in a vacuum when you look at it on the briefs and you look at it simply and in order of all of these statements and it appears that they all occur at virtually the same time of course they don't they occur throughout a long long trial and i think at the same time given jury some credit to filter out the hyperbole i don't think it's lost on the court that juries hear off a lot from these attorneys in a very difficult case and they were very passionate about their opinions at the same time giving the jury some credit to filter that out i think is important under the circumstances and i you you sort of hit on the point of what it was that the defendant was attempting to present to the jury in this case which was this was the bank's problem that was the chaotic nature of the bank that led to  this when in fact you're looking at a very small bank with only a few people whose responsibilities were well defined her responsibility was well defined as an individual who was managing the vault in this case and under those circumstances i think it's it's proper under the circumstances to see what the prosecutors intent was why saying what she's not taking responsibility but at the same time to point out what what they're attempting to say is that look at what the prosecutor said except it's clear that that was his intent but i think the contrary to that is equally or more more true it shows t the difference between a statement that is that point about her not taking responsibility by standing up and pleading guilty vs what he did say during the trial of this matter which is but nine compar it is i think shows the appreciation of the difference and he knew that under the circumstances of the case it wasn't as if he was telling the jury look she is wasting your time by not pleading guilty and not taking responsibility in that cont don't think and i think that's what they want you to believe is that that is that was the import of her sort of his statements in this context was that she is simply she should just stand up and take responsibility by pleading guilty that's not what he said and i think letting the jury filter that out and giving them the credit filter that out is is proper and we're going to talk about the bashing and accepting workers how would you explain the appeared that he was surprised by the fact the information was coming out through the defense attorneys and that she wanted the jury to know look i'm not trying to hide anything from you if it was my responsibility to bring this information to your attention had if i had known that is it and it was simply his ability to was there to facts and evidence on that particular point i think it was only borne out of what the defense attorney and that was his response to that i don't know that that's necessarily a situation that you could fault the prosecutor for saying look it is my responsibility as a representative of the government to prove to you and not hide the ball that and looking at it in total at the same time remember to i think you have to give some credit to the jury looking at this and understanding that they did find her not guilty on some counts so that gets into the issue i think a prejudice is what what is the prejudice here when you weigh it up against some of the the overwhelming evidence in this case  going to if we live we look at the prejudice if it's saturday something that has to be addressed and i think it has to be under the circumstances because clearly we have at have conceded at least on the one point that the comment was  r and so if at some level there has to be a prejudice analysis you know under the circumstances of this case i think it's very clear from the record that that we're talking about a situation that was was quite obvious to someone who was embezzling funds from this institution that really didn't appear to be an issue for the jury i mean issues before this court really are very nuanced legal issues we're not really getting into a sufficiency of the evidence question here that's they have not even read that this is really just a very the evidence is it that you know it was that intent to file a false tax return or then he says no what you have to link it to know as jane he said that the fact that she's not filing it the fact that she has the income and she's holding it out and not reporting it is sufficient or not under the circumstances whether she'd use the money to buy groceries with that made any difference whether she used to pay for a car but if you used it to pay do that why isn't this just pure spend money spending i can i can appreciate the argument that they're trying to make that is money spending but at some point the money moves from one point from the embezzlement side to the actual expenditure side world at large points that's that's that's the only way you're even going to get t charge but but but where is the proof that when she made the loan payments that it was done with the intensifier false tax return i think goes back to what the court said in zanny the fact that she her failure to those circumstances i think there will be a harder case to prove to a jury and question but what question is whether or not it what it's actually i think it was i mean people people have payments they have to make for a whole variety of things and and this money laundering going to turn on whether you go into the bank or going to the grocery store or the intent of course is that she's attempting to conceal where the proceeds are coming from so it's some point she needs to clean that money up how she does that by either paying for groceries or paying off the loan and he's your best to get the the in the appearance of it or the known appearance of it to be from the suspicious activity in cleaning it by just spending it all up i i see that point and i think our position is yes that that money went into their account right i think that's a better example of clean money that actually because we actually see that more often in the in the criminal underworld is where the money is spent in that fashion because then it clearly appears that it's coming back into his pockets in a fashion that you can trace to look this is gambling proceeds that is a more traditional example of money laundering i guess the question here though is whether or not simply spending it is enough and that it to dance or judge matheson's question directly i think our position is yes as long as it's cleaning the money and getting rid of where it is coming from to to somehow take the cent themselves and the act alone is what is going to get them into if you are going to be attempted money laundering or money laundering itself you'd have to open a car wash like alter was freaking  history i can't disagree that that was a debt was a very tough one for the government to there just isn't any case law out there and our position on on that is  and look at it in that context there's clearly not a materiality that the defendant can point to that so there's absolutely need materiality for deceitful activity they can  which charges a seat so if you require materiality instruction for the seat then you i think are going against the intent of what what the statute is there for there really does not require no court has held that there is a require materiality element for something which is the seat so you would be reading into reading a requirement into it that doesn't exist and i see that my time is very clear sort of well i think the i think it did everyone every tough time to prove that but there certainly isn't a material element to show when someone like what she was doing was signing all bank statements that somehow there has to be a material element on the receiving end of that the action alone is the sign is designed to deceive why there has to be a material element the courts have never said one for deceit there has to be congress doesn't appear to require it in in that someone is is filing a false document in this case the bank statement which was designed clearly to deceive her superiors what was going to kill her i don't think that possibly i don't envy the process i'll give you that i have just one it's a question about the allocution you've conceded the first three elements of playing air and under bustamante a crabtree directly addressed her and she responded to and i understand you're going to ask me later whether or not i want to get the state so she acknowledges i have that right and so we're looking at it that in that context to say that somebody is wholly denied when they at when they affirmative acknowledge i know i can say something and then she simply goes to her lawyer to say i don't want to say anything that would be different in the context of when he was addressing this christy erling and the judge and and the attorney stepped up something but in this case i just asked your couple questions yes and returning comments about prosecutor macy has any kind of  i'm sure you are smart enough but i think that i think the practice of the kansas disciplinary commission is to watch cases for misconduct findings at least back when i was practicing in the kansas instead of the defendant was considered plain error that in my opening brief if i may briefly point out on the money laundering that that dangerous case doesn't actually just say