very modest means who's tried to keep him self employed through temporary agencies and by trying to create his own businesses he put food on his table by fishing he transported himself throughout the city of rochester year round b he's also an avid lottery player living on the dream that one day he could strike it rich and then one day he received a letter from worldwide award group telling him that his ship came in he was told that he won fifteen million dollars in the jamaican lottery rather than enjoying the easy life mr nicholson's problems only just began unable to pay what he was told was the taxes that were necessary for him to collect his winnings he was told that sponsors would be willing to send him money so that he could pay his fees and then he would just have to pay those sponsors back when he received his reward he agreed to do so it turned out that he transferred only forty one thousand and kept one hundred thousand for himself is that is that correct i do not believe that is correct your honor he has just sent money and there was money that was sent to jamaica there's money that was sent to places in the united states and elsewhere what peterson the person who brought him into this scam told him to keep from self when he asked for a little bit of money so that he could pay for meals because he was unable to fully support himself but there is no large amounts of of money that he stored or that he banked and it's never been documented or shown so it's incorrect that he kept one hundred thousand dollars out of not to my knowledge that there is there is no evidence of that whatsoever correct that he knew that mr jesson was an elderly person in his statement to a special agent crimble us and inspector a man he recognized he stated that mr jesson was elderly however he did not know we don't know when he learned that he was elderly it may have learned that when the agents first came to interview him in talk to him when they executed the warrant prior to that he had no direct contact with mr jesson other than mr jess in sending him funds that mr jesson was forwarding to him the only other contact was one letter that he was directed to send mr jesson by mr peterson that was the only time he contacted that he selected the victim or he that he knew the victim was vulnerable you're in there it was he was inadequate foundation there is no foundation that he selected the victim that he knew the victim that created any listening to following any alleged victims and there are in the p r there's other alleged victims who did not come up in the charges but there's nothing sewing that mr nicholson ever identify these people or knew who these people were are other than them sending him material to money to contacted mr jefferson and they've either called him or sent him a letter i don't know exactly which i don't recall that there was evidence of that within the trial and that they do these other individuals told them to home excuse me told mr jesson to send forward the money to mr nichols and i believe the record also shows that mr jesson was told to send other funds elsewhere and that he made an attempt to send funds to canada which canadian i believe is creating customs did not allow it to the customs country and returned to him but it was not mr nicholson who was reaching out to mr jeffs and until the one time that mr peterson told him to send him a letter and you do have a copy of that letter in the record in various places the letter was telling him to send one final payment and that was the only contact him that mr nicholson ever reached out to him singled out the vulnerable victim from larger classic rock central victims that did not occur in this case there must be an individualized finding it cannot be based on any broad generalizations about victims based on their membership in a particular class testimony the order of lottery scams target the elderly even if this court were to find a nexus between the vulnerability in the criminal conduct there is no evidence that mr nicholson targeted anyone from a larger class of potential victims to law enforcement did not materially differ at scheme according to the court materially different from his trial testimony however if we look carefully at this his written statement and his testimony would find that they really do not materially differ of cording to the district court mr nicholson's testimony was false misleading it was contrary to the written statement he made when he was arrested however if we look at his both his statements in the testimony mr nicholson noted that he had a it as to the legitimacy of a lottery but he also believe that mr peterson was still sponsoring him and if we look at inspector man's testimony we find that victims of lottery scams which mr nicholson was even when they're told that they're victims they're still known to send money to the scammers under the belief that they really think they're going to receive their winnings and here we have mr nicholson believing that he's still going to be able to collect so while he may have questions he still believe that he was going to collect his winnings i've noticed my i continue your honor for a moment thank you his statement did acknowledge that mr jefferson was elderly but he does not state when he learned that mr jefferson was elderly he testified however that he did not know that mr jackson was elderly when he was sending him the checks we do know and it analogous situations that in many individuals who have been found to falsely confess to crimes will often give details of crimes that were not known to the public we don't know when they learn this often it's when they're being interviewed by law enforcement and it may have been one long force that was talking to mr nicholson that he learned of this that mr jackson was in fact elderly and that he put that in his statement so the but the record does not show when he learned this he admitted he in his written statement that he had suspicions that this was maybe illegal some kind of illicit activity as early as october twenty seventh there were there was a quote there was a question as to whether or not he had some doubts about it but again he also believed that this was a legitimate process a legitimate lottery and that this is how it worked and was because of the continued contacts that he had from mr peterson why he believed this but he also had suspicions at the same time while they were talking there was some doubts yes but nothing telling him that this that he should stop doing this or that this was altogether wrong and you got your rese to please a court john feal for the for the united states mr nicholson had his opportunity to convince the jury that he had innocent state of mind the jury didn't buy it and from the government's perspective that's pretty i'm talking about two specific adjustments that cost him some years that's correct your honor in terms of the two adjustments the first one the vulnerable victim adjustment we have a variety of different sources of evidence well first the government the judge the sentencing judge found that he knew that that mr jackson was elderly question is if there's order in the record for that yes there is there is his confession your honor which he say you know with at the time he did not say he knew it at the time it's not it's not question it's a it's a handwritten confirm that question whether he knew it at the time of the violation this was his first encounter with law enforcement it is that this is exhibit thirty three your honor which is it looks like page one sixty one of the appendix and page nine of the government's supplemental appendix what he says is that he realized he was in a scam in october two thousand and eleven due to this check and then he goes at this time i realized first that he was being scammed that i was being scammed and that this time i realized i was also a part of the scam and was accepting money from other people until approximately december two thousand and fourteen i realize i was taking money from mr jackson who was elderly referred to me by mr peterson which was approximately one hundred forty eight thousand dollars was elderly and the representation at the proceeding was that that knowledge from the agents when they interviewed him long after the crime they represent patient was they told him he was elder did you extract from the agents any statement that no no no he never told me that and no i did not didn't i did know that record stands on contradicted that he learned that from the agents well i think the jury rejected that testimony and found that your testimony this incredible just meant the jury was has guilty or innocent he's guilty whether he sentence that he did whether or not the has been applied as an essay and it's now when you get to levels yes in in this category three it costs you seventeen months is that right i don't know i haven't looked at it that thinking i think the just meant to be the size of proper or improper irrespective of how much time it adds to the size i mean a suggesting that tells you whether it's improper but it's just a fact one hundred no in any event let's go on the assumption that it has cost him seventeen months you can correct me later if you find i stop that you're all right i'm not i'm not quarreling now we're back to the question and it's only valid if he knew at that time that's correct that's correct so he says there is war here represent who the agents told him that you didn't extract anything to the contrary from the agents right but with the agents testimony was that when when they  went to arrest him and he agreed to be interviewed he gave the statement and they did not put words in his mouth so there's nothing in the record to suggest that they told him that this person was elderly and that therefore he repeated that back to them and said this person is old which tells me your honor that he knew absence of a but there's nothing in the record that he knew it at that time right just a statement that he knew it he doesn't say at the time but  he says he knew it on the date of the of the of the arrest as of that date he knew it which was long before he met mr jackson long before he met mr jeffs and met mr jeffs yes he did actually during that it was seedings later on there was a deposition of his address in the crime not during the crime or mass yes yet never eyeballed him during the crime and said gee there's his old man who i've been fleecing that's that's correct you never have that as far as we know that's correct yes but  may judge the you know just the victim's age in any event is not enough to conclude that the person is elderly so the ages one piece of it the other piece is that that mr jesson repeatedly sent him a large amount of cash and that that over the period of one year in the hands because that shows and the case law i believe supports this that when a victim is repeatedly victimized and his skips on sending additional money he did it right you did it and i didn't own the company did no he didn't but he should have known he reasonably the government's position in any event is that he reasonably should have known based on this year number of mailings that you get seventeen months for what you reasonably should have known and i believe i believe that the court found the district judge found that he knew he was older leave based on the confession he knew of the repeat conduct which was another factor said is i'm able to find by a preponderance based on mr nicholson's own statement at the time of his arrest and the nature of this enterprise and the repeat conduct from mr nicholson that the  repeat if you if you scam a person repeatedly that shows you know he's not you know he's a vulnerable he's vulnerable to the crime so every time the postal inspector comes along and has six mailings as they purposes of the enhanced i don't not sure that i understand the question again it whether doing the crime more than once with it justifies a vulnerability in humans i think that's certainly a factor that the court will consider is whether was this person did they just send in on one occasion five thousand dollars nothing comes their promised whatever they send in the five thousand dollars on day one nothing comes and then they stop right as opposed to the person sends in five thousand dollars on day one they don't get what they bargained for when they thought it was coming to them the b m w or the lottery winnings and then a few days later they sent another five thousand dollars and then a month later twenty thousand dollars commission meant a vulnerable victim of someone who sort of yes so stupid but their statement that just in the application what is that that well if it addresses it says of victim is vulnerable when they are particularly susceptible to the crime and i would respectfully submit that repeatedly sending money to someone cash large amount of cash indicates that you are particularly susceptible to this particular type of crime your submission to the district court you represented the government believes that a december thirty one two thousand and twelve mailing from victim one to the defendant contained a copy of a license that  someone is mr jeffs and that was not something that was introduced at trial but during the investigation we obtained evidence of various mailings we were able to identify for every mailing of cash a corresponding withdrawal from the victim's bank account the re where there was no indication that cash was sent we did receive notes from the victim indicating that he had mailed a copy of his driver's license now the victim couldn't testify at the deposition that he specifically remember doing it but he did provide us with a note saying that he had done that something court i think the court said it was not comfortable relying on that particular piece of information and impose the vulnerable has been notwithstanding you know its decision not to rely on that information  thank you very much if there's no further questions we ask for you struck while the struction has been was again based on his decision to testify to a variety of things that the day the jury rejected including including the fact that he characterized his fourteenth letter as not a request for mr nicholson to send money but he characterized it as a statement by him that that mr that i'm yes the commissions as referring to this it just it would not apply in a case in which the defendants all fraudulent securities by mail to the general public and one of the victims happened know that's correct commission says being senile doesn't get you the enhance but we're not you think that makes you vulnerable what what that point addresses your honor is a situation where they're not targeting they're not specifically going after someone who is vulnerable they send out a mass mailing that targeting it says and one of the victims happened these you know that's correct and it was more in this case it was more than just one of the victims happened to be senile the only victim here was  he was repeatedly victimized over the course of a year so that's the difference between the situation here and the hypothetical posited in the application note which is really designed to address massmart mailings where it gets sent to everybody and then somebody happens to respond to fall for it and and that's sort of the extent of it they say in that situation it's not fair to apply the vulnerable victim announcement this is different the defendants conduct is much more colorful he knew this man was reckless was vulnerable he received one hundred forty eight thousand dollars from this person over the period of a year and a half and according to mr nichols some self he felt he was part of the scam that he'd been scam so he knew full well what was going on he just took jones to participate in a new human self was vulnerable that's what his claim was that's how he tried to pitch it and i don't dispute the fact that at one point he mailed some money and maybe it was taken and spector man testified that during the interview that that that ordeal nicholson told her that  peterson said please don't go to the police i've got a way for you to make your money back all you have to do is accept mailings from from various people and forded along in the ones with my instruction which is force exactly what he did and there is reserved you the government wants you to characterize it the jury completely believed their case and did not believe anything that mr nicholson testified to i think it's worth remembering that the government charged mr nicholson it in seven counts counts one through six were basically identical counts and they acquitted him my counts one through three so the jury in some form some way to believe him or some members of the jury believed him and they split the verdict why they reached this conclusion we do not know the real question is what did mr nicholson know at the time that he was receiving money from mr jeffs and the record does not show that he knows it knew that mr je i just i just did not find it credible in fact i found that was false misleading as contrary to the written same in that he made when he was arrested so judge alarm or did not did not believe it indeed did not buy it he also did did not of the written statement that mr nicholson made to the law enforcement officers and he relied on inspector man's testimony as to how he's audrie scams take place he did not make an individualized finding know that he was receiving the funds that he did not know that mr jackson was elderly and that i said he said he testified and we can assume the judge my armor made a credibility finding on that yes your honor and what was the page  at line thirteen and it continues on to page yes and it continues continues on the next page think there's some actually an eighteen as well he says i find by preponderance based on his own statement