the first is of the victims that were included in the government's spread sheet how many of them were in fact really victims according to the definition of them and b r a the mandatory victims restitution act the second question is how accurate was the calculation of the amount of restitution for each one of those victims and the third point being whether or not there was sufficient evidence before the district court to be able to actually make a calculation i'd like to start out by addressing a point that the government raised in its brief and i understand that in my  first circuit than the one that exists in the second second circuit for determining victimhood if if you will and i would argue that's not true at page seventy eighty six in alpha's this court said that in determining whether a victim is a victim under the act this means that the government must establish a but for connection between the defendant's fraud and the victim's loss of a council whether or not the the legal standard is the scene right that seems to me the government's case for victimhood usual word rests on a simple proposition  your client perpetrated a free one which he described as having at its heart concealing from the people he was dealing with the fact that he was filing phony asylum applications in order to obtain work permits want them there is no evidence in the record nothing in the record that suggests that he ever filed any legitimate asylum applications so why isn't the district court and titled from those facts to growing inference reasonable  mean i really like judge thompson's description because he admitted to the scheme there is no question that he admitted to the scheme there's a great deal of discussion about the word heart granted he had a fraudulent method of getting the work cards in mind but what he promised to do was get them employment authorization documentation and he did in fact do that but you don't think that it's implicit in the scheme that he would get them valid employment authorization documents not documents which were issued based on illegitimate applications and again your honor we're not trying to imply that the defendant did not mean gage in this scheme the question that we're asking them now would be a tough implication the mansons has already been convicted and because he pled guilty guess what we're asking the court to do is to recognise the fact that there were some at least some identifiable ones and i pointed to them in my brief who knew what he was doing was filing for asylum not what  you pointed to when your brief was you pointed to a couple of victims who said that at some time they knew what he was doing but it is unclear from the record when you go back to goes references whether they knew that at the time they paid him the money or they knew that at the time the government investigator approached them and they made the statements that are quoted in the record i agree and that is exactly the point that we are raising there should have been clarity in the record as to when they found that out but if thing we had here we what we have there is evidence in the record that can support one of two equally reasonable but conflicting influences that's the district court's responsibility to choose between those influences and drug smith drew that inference here contrary to your client how can that be how can that be iran but i'm sorry i didn't mean interrupt but here where the defense specifically made proof to the judge and said we would like to cross examine we would like to criticize the evidence that will give you hard evidence in order to be able to make those determinations the district court judge instead did judge there were offers of proof and i know i just think i've cited all of them in the brief but there was an offer of proof in the appendix of page one of four there was also an offer pro proffered at age seventy five in the appendix age of eighty in the appendix where the the trial court the defense attorney sat your honor we would like to present you evidence that because we don't believe that all of these victims were in fact victims under the definition of the act what is the offer proof you offer proof was a judge we'd like to continue to cross examine the judge that i don't see any need to continue and then they would say look there was an exchange i did mention this in my brief where the trial court judge even says are you trying to tell me that you don't think all of these victims are victims and the the defense counsel said yes your any such evidence you number your number tendered it to the judge so he could accepted or rejected you were permitted to cross examine i know that you say that you weren't permitted to cross examine off but the right to cross examination isn't the right to endless cross examination i am right it's concede that point however thinking about the fact that according to the government three hundred and sixty eight victims it's there's no way that you can properly present evidence and the court was required to take the evidence or at least make findings or can i ask you questions about that number so my understanding is that there there might have been some evidence available with respect to three of the alleged victims and that evidence would go to whether or not they thought that an application for asylum was being processed for them but that's the only proffer that i saw with respect to any knowledge that they might have about this is that that there might be an application for asylum and my question is how is evidence that somebody thought an application for asylum was being prepared for them and filed for them an indication that they were part of a fraudulent scheme that they understood that there was a difference between asylum and getting an employee employment authorization document it seemed to me that that evidence that was proffered to the extent that any proffer was made or that the evidence that was available doesn't even go to criminality or knowledge of criminality so what is your response to that i understand i'm out of time so i'll try and be extremely brief two responses the first of which is if they knew that he was applying for asylum that they don't fall under the but for definition of victimhood the second well wait why is that because if they were aware of the means by which he was obtaining them the car then they were implicitly agree to which is a patient in that scheme which means they are no longer and what is the evidence that each of those or any of those three knew that that was fraudulent two of them in their documentation to the for the pre sentence report said they gave the money to him for the processing their asylum claim and one of the road on the memo line of the check that he gave not to belabor the point but how does that proffer show anything about their knowledge of the criminality involved in the scheme or put differently it could have legitimately thought that he was legally applying for asylum for them may not even know the difference between an e t a t and asylum i'm not saying that there isn't a difference or that they didn't know him saying what what was the proffer that would suggest that they knew the difference these three folks out of three hundred seventy roughly about i'm going to answer two questions of once the first question being why does just these three make any difference and and your question judge howard what the defense was saying is we are we have proof of these three that knowingly participated in applying for asylum to get to work hard we have fifty five who submitted their documentation with no explanation of why they gave him the money all they said was we gave him money we had two hundred nineteen victims who never contacted probation or the government's agent they were just part of a blanket search for every application that was bathed that had certain repetitive language in it and it was therefore assume because that repetitive language was the same in all two hundred nineteen of those that they must have been filed by mr no friends i'm not arguing that it's not a reasonable assumption but given the fact that there are three that were identified as participating in the scheme knowingly and there were two hundred nineteen we know nothing about and the rest of them just came from banking records of the defendant that the trial court had some sort of an obligation to at least inquire because now to answer your question  they participated in the scheme they were not harmed by actions that were unknown to them and if they were not harmed by actions that were unknown to them then they don't fit the definition in the act thank you thank you very much for the extra time long running scheme second that at the very heart of this scheme the essence of the scheme was to conceal from the victims the fact that the defendant would be filing asylum applications on their behalf so for a period of sixteen months the defendant said he engaged in a scheme that the heart of which was to do that and number three he typically charged the victims between fifteen hundred and twenty five hundred dollars in each case now the defendant never claimed either in the district court or now on appeal that he himself disclosed to a particular victim the  application would be filed on behalf of that victim and now the defendant optical well i'll point out one practical practicality and answer the one practical question this gentleman has been deported to thailand so the likelihood of the restitution getting clipped it is pretty remote but to the extent you were able to collect fully two hundred nineteen people whose whereabouts unknown  l there are two things your honor first of all is the record and our brief make clear we do have about two hundred eighty five thousand dollars of the defendant's assets frozen so we would be able at a minimum to put our hands on that money whether we will find other assets of the defendant after that is on the clear on the second point locating the victims to get them the is designed so that if we can find a victim the ultimate way some of those monies will go to a separate fund i think it's a victim which is sort of fun so the money will be put to good use even if we can't track down provision allowing for deferred our restitution to stay in there but what about the intervening notice of appeal yes we are trust that in our in a footnote in our brief we feel you do have jurisdiction because  of the notice of appeal that was filed after the district court's order no no no i'm not talking about the second notice with appeal i'm talking about the first notice of appeal for when the for the first notice of notice of appeal a notice of appeal typically ousts the district court of jurisdiction but the district court here despite the fact that that first notice of appeal was still pending went ahead and amended the restitution order and i'm questioning whether it had jurisdiction to do that well yes i mean the line is as i said the n p r i am asked does expressly contemplates this exact situation that only the m b r a doesn't say anything about an intervening appeal there's no question that the district court could have entered a provisional restitution order and then amended at the supreme court like that implication i think of the m p r rank that if a district court judge is to be able to amend the restitution water and if we know as we do that the first notice of appeal must be filed to preserve the finest rights in that context and it necessarily follows that a district court can't be ousted in jurisdiction between those two events otherwise the judge would never be able to do with the end the ira says the judge can do him to enter the supplementary your second order but that procedure wasn't followed here we've got we've got cases in all those situations zocalo could probably case one where we have say that the m v are a context is different i think from any of the other cases that you've addressed on that point and that's because statute itself seems to contemplate exactly what was done here if i could return to the argument our point is that the defendant himself is in the best position to know if he made specific disclosures to particular victims concerning the fact  that he was filing an asylum application on their behalf and here are the defendant never once said either below or on appeal yes i made a disclosure to particular victim and that in itself is significant beyond that has been and admissions beyond the fact is he never once claimed to have made disclosures to particular victims we have the agent's testimony that all twenty of the victims he interviewed pre indictment during the investigatory phase of the case all said to a person we had no idea that asylum application was being filed on our behalf and then later on in connection with sentencing as the agent is trying to build  case for restitution the agent speaks with more ninety further people and asks roughly sixty of them did you know about the asylum application now the direct examination is a little muddy but on cross examination the agent clarifies that all of those people said that they did not know about the asylum applications so we actually have not just the defendant's admissions not  failure to make a claim that he made disclosures but we also have testimony from the agent concerning fairly large group of victims who all sent to a person that they were not told and then finally we have as evidence the defendant's fliers that he put up in the restaurants none of which disclosed that this was an asylum application failure it was just a work permit  thing show that is the main factual point on the second circuits are true case the main case the defendant relies on our point is not really so much that  archer is necessarily in a conflict with the first or its case law our point is that it's factually distinguishable are cases factually distinguishable at least in two significant ways first off archer was a distinct piece of fraud a case where there was actually concrete evidence that individual victims were complicit actively complicit in that scheme whereas here the defendant admits that the very heart of the scheme is to to the three or so individuals at issue were stronger in terms of their awareness that asylum applications were being filed does the government still argue that  just as a math matter because it's it's a de minimus number of the alleged victims that it just doesn't matter well that's a big if if the evidence were stronger right it's not for reasons i can get into one noted by judge sell yet another suggested by judge thomas and first there's the question of timing to the extent some of these statements indicate an awareness of the asylum application when did the victim actually come to learn that it's very natural for victims after the fact to learn from conversations with agents that something is the case if you have a scheme to defraud somebody of you know  saying that aluminum bars a silver bar the victim might later say well i'm one of the victims who bought the boom bars from the defendant is that mean that they knew they were aluminum now of course of course not so there's the timing issue and then there's the point that judge thompson focused in on and i think you did as well judge howard which is awareness of the fraudulent nature of this and even the distinction between asylum and work permits