threaten the first issue i would like to raise relates to whether he should have been appointed a new attorney when there was a hearing on this on november nineteenth and this was the third round of new attorneys was a yes it was the third hearing a separate hearing there was one or two earlier in that same year  and why isn't this just a matter of difference in strategy rather than an absolute to the inability to communicate well i think when you look at the reasons that were given by the fence counsel here it was so it really gets to the accusations that i think it almost mandated some kind of relief he was being threatened he was being mistreated he was being lied to he was being mentally tortured this is what defense counsel said he was being insulted threatened threatened with bar action that he wasn't being productive and there this went on and  on and he characterized it as a complete breakdown of the relationship so with that i mean i think that that was enough otherwise you got a situation here where  you have a total collapse of the relationship the defendant also made this lieu of allegations that he wasn't being listened to that he wasn't they provided information that you were having angry arguments specter that i think that there was no reason just just because there were two prior hearings shouldn't dictate whether there would be a third we're just going to deny this third hearing because he had t prior lawyer changes but i think what's most important here is going to take the lawyer said there that he wanted out i mean he made it pretty clear and i think the judge did make a comment that he thought it was very unusual for a c j attorney to be you know pretty much they going to be bailed out of the file so i think in that regard i think that the court erred on that on that who was unavailable to testify at the trial and who made an admission on i believe the usas voicemail or answering phone machine or what the counsel was there every day in the identification identified himself as a blue which is the same name that york your client used well that's true well they did to have some of the state they apparently used the same name and some well he didn't give a last name do we have a last name for him i don't think he gave  last name and he didn't give a last name to do we have a did your client provide them with the last name at that hearing i don't believe i don't know if he provided it to them i don't know there was no police and nobody's ever even told us what this cousin's name is well no he said my name is a bill right by me last name he didn't give us a last name he didn't tell us anything about him nobody was ever able to verify that there actually existed such a person and that mr robert cato had made the call himself he's in here for fraud he's imitating people all the time well i believe that he test i don't believe he testified that his cousin was not available so i don't believe that i was cousin may not may not been available because he didn't exist well that would be a true statement back to them but that's up i think that that's more a jury call and then to exclude the evidence let it come out of the jury to a court has discretion to determine whether or not evidence even warrants getting to the jury i mean that the district court is sitting there for reasons i have no i that would have corroborated the defendant's alibi basically that he didn't do this that he was in that perpetrated these crimes he testified at the trial that was the other problem with it is this call was traced to a payphone that may be true and so all of the district court could consider all of those and determine whether or not the evidence was a sufficient credibility to to let the jury hear a whether or not it would just inject confusion into the jury proceeding right i think also that right there was also apparently some corroborating evidence to the extent that there were some other phone messages that were left similar with the defense lawyer and he brought that to the court that was brought to the court's attention so the only thing i can say is that let it come in and let the jury decide if it's a total fraud or a total hoax and the arguments could be made then let the chips fall where they may but there's no reason to keep it out well even if we agree with you that perhaps this evidence should have come in how much benefit would it have been then deal all of the other incriminating evidence that was admitted then that the jury heard well i think any corroborating evidence that the defendant didn't do something this with corroborated that i think that's very beneficial otherwise he's standing alone saying i didn't do it my big issue becomes whether or not the evidence is sufficient magnitude that it calls into question the jury heard well absolutely and i think if you're having somebody else say i did it he didn't do it well not somebody else say there's nobody coming into court saying i did it you have a telephone call purporting to be someone who said they did so it's hearsay that's true they there was no way to confirm it and they weren't on the in they were unable to locate him according to the testimony he was unavailable witness the defense lawyer tried to make some calls and the defendant testif that he couldn't find him so i you have to work with what you have and i think that better be safe than sorry in letting the evidence in on something that to me would be pretty crucial now she may want to go on to the last testified at trial that it was a one hundred thirty one thousand dollars so a lot of the difference was on on and on credit cards that were never retreat so that if you other incidents really taken into account well i think the theory that they can but i don't think the the the original amounts were basically done on credit cards and then what happened at the sentencing hearing is they went back to try to reconstruct other account numbers to cars that they didn't find in the defendant's possession and they i don't think it was really there are five that that information was accurate now that wasn't connected to a different well that was it was connected to a certain extent through they tried to connect it through some addresses through some addresses that the defendant was connected with and through some documentation that the defendant's possession but i think when you're comparing it to the one hundred thirty one thousand because there's a perfectly logical explanation for that the government's obligation to convict your client is to is to show beyond a reasonable doubt that there were losses once you get to the question of the sentencing they only have to prove by a preponderance of the evidence that's the lesser standard and the obviously the i mean if you could have been that the government thought ok we've got it we've got to an additional mouse we're not confident we could persuade a jury that if we can prove beyond a reasonable doubt but we can certainly need a lesser standard a preponderance of that which is all they have to do and here the district court said yeah not only satisfy preponderance but i'm going to find that it's it's proven by clear and convincing evidence so the district courts that it did satisfy a higher standard it just didn't you just didn't quite reach proof beyond a reasonable doubt right we just don't agree with that at the court's analysis because at least you had or that maybe it might have to be clear so it was a clear error well i think it's clear error because it was a lot of it a lot of it was kind of hocus pocus with addresses and documentation that was retrieved from the bank by the  agent who testified and the bank didn't really did the bank just gave her the data and then she kind of tried to go back and reconnect so the bank really did do like the forensic accounting from the way i understood this was presented and then they went back and said well we connect this address with with your clients photograph on the stratus lights and so they have the driver's license and the address the photograph of your client all linked to these accounts well that's just it i think without i think the safer way if they had you know if we're going to start saying all of a sudden it's a half a million for restitution and another a few extra points they should have gotten the card some way other than just saying well we've got to address that somehow connected to the defendant i mean that's that's our position and that was kind of just a piling on i've got two minutes can i reserve that you see shiners good morning my name is vicky chow and i represent the united states in this case i'm going to begin with the last calculation issue to clarify the district court paid special attention to the entries on the spreadsheet to data it wasn't just the physical cards that could have typed the defendant there were also the false i d s and in many cases as the spreadsheet shows in the spreadsheet is an excerpt of record three hundred five to three ninety one there were additional cards sometimes so for example taken john price there were numerous accounts types of person for which there were not cards but there was an id found in the person's name with defendants picture on it and  at trial about how each of these addresses were tied to the defendant and you saw the defendant had multiple these other says with his own eyes and other cases had other witnesses tell him that the defendant operated mailboxes or in one case had a  breakdown was based on things that defendant said to his counsel there was no evidence that counsel said anything demonstrating animus towards the defendant and the significance of defending creating these issues is that it provide fabricated and you can see that in the committee notes prior to nine hundred seventy five which point discusses why that statement against interest in penal situations should be examined more carefully and here i also want to point out that the district court assessment of this voicemail was made after the defendant had already testified and had actually named his cousin as abu getto and had also indicated that he was living with two other individuals which in cross time very well the case just argued will be submitted for decision and the court will hear the last case on their docket today burton versus chapel