have not appeared in our court before first you may safely assume that as you make your arguments that we've had a chance to fully review the briefs the record excerpts in many instances we've record itself so feel free to go right heart of the argument second just comment about our timing and lighting system you'll know that we have a green amber and red light green l means of course you may see that amber is a two more two minute warning and red is really means your time is up and we'd be much appreciate you could bring your remarks to a conclusion when you see the red light go on as one of my colleagues some years ago was fond of saying the red lights not aspirational with that let's begin with the first case which is u charged as one conspiracy rather than the judge says ok it's a single overarching conspiracy covering x to y date i'm happy to do that if that's what you want you understand the evidence bearing on it is coming in i don't understand how you could turn around later and say the judge made a mistake in doing precisely what you asked him to do what is it that you wanted him to do that sought where is the mistake what should he have done differently than that which the court ultimately did but so he did it too late is that the problem that is our position consecutive sentences and they sent it back they affirmed the conviction which is all you are talking about and it was a lot more prejudicial because the jury was never told it is only verdict and and then it was cute on appeal that there's a lot more prejudice in those cases than here and i would agree with the court and  we are bound your honor is correct however once again as we look at what impact it may have had on a jury it's hard to know but i do know that we're here quite often in front of the appellate courts with the same exact issue and that is that the government's filing these indictments counts when it should be just one and  it would be invited our since he received the benefit of arguing all the it was one conspiracy that all of it would come in it cannot move on to the prejudice if it is true at some point there could be prejudiced t prejudice part from langford which is why we filed the twenty eight day letter because we looked extensively for any cases where a court has granted a new trial solely on the basis of prejudice we're able to find one the police  and there was a lot of evidence that came in that was very inflammatory that otherwise wouldn't have been so it had specific issues that it looked at that said this could've prejudiced the defendant in this case and even then the second circuit said that's not and we also cited in the twenty eighth a letter your honor the maxwell case out of the sixth circuit because there the court deals with a almost identical argument here where the defendant said i was prejudiced just because by that by the  multiple counts i was prejudiced because the jury probably thought that i was worse than i actually was cracked with more crimes in the court rejected that and said if that were the standard the exception would swallow the rule in every case where there was a multi punishments for one offense there's also the risk of prejudicing the jury and then goes on to say and therefore there is a risk of the defendant being convicted of multiple counts so there it i think it ties the prejudice to the risk of being convicted of multiple counts because it's always goes back to double jeopardy that's what the most earn is double jeopardy so there's really not this free ending theoretical notion of prejudice other than a case perhaps like police see where you might find something at the margins where it's so extreme in there so much evidence that would have come in but if the standard was we're going to presume prejudice whenever counts are found multiplicity just the same thing would be happening in the rule twenty nine contests if the court were to grant counts then the defendant could say well i was prejudiced because the jury heard all of those counts and so now they think that i was the worst person that i was even though you granted my judgment of acquittal just the fact that you said i was accused of very first paragraph mentions all of the chiropractor clinics all four of them and then when it gets to the manner and means of the conspiracy  it focuses just on tamiami and first choice suggesting that the heart of the charge here really concerned two of these clinics rather than four and then count one although admittedly in the very initial introduction you referenced them all would it have been era arguably separate conspiracies because they involve schemes or office to do fraud and mail fraud zeroing in on different clinics that have been conspiracies involving different sets of clinics admittedly the means are the same but the mailings are different and the agreements went to different cli did make that argument here and he rejected it he did reject if he had not rejected it and said no i disagree with the defendant and i think that you can proceed with three because that's where the charge each agreement separately there was overlap and the evidence at trial showed a little bit more overlap perhaps that was apparent from the face of the indictment i really think that you can view it either way that these three different clinics slightly different time periods different paper owners although dr webb was a paper owner of two that there was you know some some discreet actors and time periods of but it seems like the manner and means of the conspiracies at trial the evidence showed that there was all of the clinics operated in a similar fashion so it is one of the reason i raise it is when i was looking at the timeframes a fifteenth that's the that's the fraud going to tamiami and first choice then when you get to count two the timeframe is different ironically the time frame is broader on count two because of the time the clinic operated but there it's october twelfth to february fifteenth parkway and then account three the time frame is still different than it was either in  that timeframe ran from june of fourteen until february fifteenth so the time frame is the shortest for the last one and they were arguably overlapping but different players depending on which you th is that the time frame was different because the time frame on count one was only june of thirteen to february fifteen whereas the the time frame is broader on the second care it's october twelfth to february end i don't think that when you say merge the counts he could not have leaked crafted count one though to say that the time frame ran from from the language in count two we could not have we crafted count one to say iran from our tobar of two thousand and twelve now you are that's true and i think that's probably why he vacated the two of them and just focused on that one but again the jury was instructed you can only consider fifteen you say it's intrinsic as part of the same scheme but if the timeframe is not the same i'm not sure that that's clearly intrinsic conspiracy we're going to let the government argue that this is one conspiracy all of the evidence and that's what the government did there is no objection there are many opportunities for him to have objected to that evidence or the phrasing of count one he never did  act when the court read the jury instructions say that or all of the evidence he stated expressed i don't object let me ask my question slightly different to the extent there was evidence that came in with respect to count two parkway and c an extended period here you have a circumstance where it seems to me the dates are overlapping but not coextensive as i said you get slightly different time frames  this you have loot and so is if we see this much more commonly in drug conspiracies where we talk about spoken we and at the pivot you have let's say the main guy mr big and he's involved in a distribution method in many places over an extended period of time and he's dealing with one group at one time and another group at another time and a third group but there's no question that if you look at him this is a single overarching conspiracy but if you're looking at the other end of the spoke maybe the conspiracy is disparate the trouble that i'm having is to see how you were harmed in any way by any of this it seems to me that you got an advantage that you might not have been otherwise entitle to know that the court would have been perfectly within his power to because it's kind of overlapping but not exactly coextensive where's the harm in him having done what you were if the evidence would have come in any way whether you characterize it as a single or multiple conspiracies  seems to me you've got an advantage here and that's why i started out earlier i'm not sure that i understand what your complaint can fairly be with what did going beyond that it was invite so they could have come away with the inference that he's really a bad guy because he there are three conspiracies here even though only one is going on the juries of all but if they are arguably worth we can see where is the prejudice if indeed the district court could have we will proceed to the next case which is the united states versus ernest