we represent the appellant in this case adly of do while have all referred to as i have for short mr watt have raised two issues on appeal and i'll begin with the first part of the first issue and that is that his mr y had convictions for money laundering judge greg and me at the very least your need the briefs for this type of case it's not an incredibly complicated case united states v santos if you recall was a case where the defendant was running a legal lottery under the indiana state law and he had employed brunner's that would go and collect the bets from people at bars and restaurants and those runners would take the bets to collectors that were employed by the defendant and then the collectors would give the money to the defendant that event would use that money to pay the salaries of the runners pay the salaries of the collectors and then pay out the winnings of the legal lottery and what's supreme court said was that an individual could not be convicted of money laundering for paying those expenses for the underlying criminal activity and that's similar to what occurred in this case in this case mr watt had worked for a uno and they were selling fractionalized interest in life settlements they call them bonded life settlements you think of the payment of the commission to him  to the fall so absolutely wrong the payment of those the essentially the people that were doing the selling was not mr watt mr watt have recruited wholesalers who then in turn recruited sales agents and so after the sales agents would solicit investments from potential investors that money would be transferred to mr wahhab who would then take a portion of that money to pay commissions for those sales agents which would go to the wholesalers and the sales agent so these were the expenses of that underlying criminal activity this court's address similar issues in two cases united states b hall stead and united states v klout scores i don't have to be pressured to know that the government will stand up here and say that this case is more like whole stead than cloud but cloud has already addressed that very similar issue you'll recall that in united states b cloud the defendant there was running a mortgage fraud scheme and he had hired different mortgage professionals to go out and recruit people with good credit to fill out these applications to buy homes that the defendant had already purchased and was flipping to these potential investors and then mr clyde would take a portion of those proceeds and pay out money to the people that had helped recruit the other mortgage professionals and the court said that that was significantly different than what occurred in hall stead is not just but it's not just the fact of the payment paying somebody could be money laundering correct correct a payment could how do we do it that's part of what justice stevens in santos directed the courts to do you recall the justice scalia who authored the pinion stating that we should look at the rule of leniency and and in time this problem agent so they lured him into the conspiracy with promises of payment and this was evidence that the government put on through mr on count the basis of the mail fraud charges involve the investor contracts that were mailed to mr bronson and then he received those contracts and he then in turn delivered them to the investors the basis of the money laundering convictions were those payments of the commissions to mr braun seth and by and no for those contracts that he had solicited so this was the the entire basis stopped coming in the whole reason mr brown says sold not one or two but several of these investments was he because he continued to get commission payments so the very reason and the very basis for these commission payments was  the sales that mr bronson had conducted in moving this illegal activity forward and that's why this case is so different than united states v hall stead in hall said the the payments were not renumeration for any activity hall stead the payments it was a health care fraud scheme where the payments were coming back to the defendant who would then take that money and use it for purposes that were wholly unrelated to the underlying illegal activity so he wasn't reinvesting that money back into the business this case like in cloud like in santos there reinvesting the money back into the business by paying these commissions so all they're doing is paying renumeration for illegal activity that's already occurred the government also seizes on the issue that in their opinion the fraud was complete at the time of the paying at the time that these investor contracts were mailed and that simply isn't true although it is a mail fraud scheme it's not the issue that the scheme defraud begins and ends with the use of the mail the use of the mail was simply in furtherance of the scheme to defraud but what the court looks at is the scheme to defraud itself and in this case it was soliciting potential investors correct they were they were indicted as commissions in the evidence in trial show that they were payments of commissions that was in a nutshell essentially what their evidence was for money laundering  that's why this case is similar to cloud in dissimilar to united states v hall stat you know i think there's also when i was looking at this issue there was a bit of a misconception i think with some of the court's post  the amendments to this statute and as you recall the statute was amended in two thousand and nine after the united states v santos opinion came down and there were some courts or at least some commentary that alluded to the fact that perhaps santos had been overruled that simply isn't the case of congress never intended for this stuff to be just ok and kosher all along the warning that justice scalia gave that where he said the government to give the government this power essentially is to give them the authority to adam under him with money laundering charge to almost every single case that involves illegal activity and money that morning it still rings true and because it's reflected in the new statute because it requires that the government when it's presented with this merger issue it has to submit the reasons for the money laundering charge not just to the senior department of justice officials or the united states attorney but also has to submit a report to the attorney general to the house and senate judiciary committees which details the prosecution and details why the prosecution went forward with these money laundering charges so the fact that congress is now amended this statute doesn't mean that this wasn't a problem from the get go and if if there are any other questions about the merger issue if the court has any questions about the other issues that i raise i'll be happy to address them if not all yield the rest of my time to the court let me ask this when the net result if you are right on this would be good morning your honors may it please the court my name is jessica and i represent the united states of america the government asks the to affirm mr appiah convictions and sentence for the reasons outlined in our brief but primarily i will address the court's concerns about the money laundering counts in this case simply put the district court did not air and denying the rule twenty nine motion of the defendant as to as to the money laundering counts judge said asked whether the payments of the commissions were integral to the scheme here and that comes to the heart of the government's argument here the met the mail fraud scheme did not merge with the money laundering offenses because the mail fraud scheme was finished by the time the money laundering offenses occurred the mail fraud was pled and argued and the evidence supported in a manner that showed that the mail fraud scheme was complete well before commissions ever came about and that renders this case much more because it certainly was helped and that is what the government argued that the commission's incentivized sales agents like mr brown south to sell the product but the critic was a mail fraud complete matter is that in counts two and three for example the substantive mail fraud counts investors fs and c c heard lies about the product wrote checks and then the mail fraud was complete the fact got a check later to thank him for his service and to pay him for his services rendered does not affect the actual mail fraud counts whether or not mr brown seth got paid does not affect whether investors fs  commissions i don't believe there is any evidence of the record that in the at i don't believe that there's any evidence that folks dead occurred after the investor paid their funds but in that instance i ask you to consider that mr brime seth was not a member of the conspiracy and i think that was mistakenly stated by the  did not like the cloud participants in that way he pled guilty to mail fraud but only for the results of his own criminal actions and did not know what was going to but if you say that the actions of those i think you  think you changed your answer maybe you know the question to be clarified but it's the same point that gregor's been asking if the actions of those who later received commissions were necessary to the mail find out i don't want to focus right now in the pain of the commission i want to put that aside for second ok because i want to focus on that i want to focus on was that you said the mail fraud was complete before any actions or the actions of those who later received commissions i'm trying to get to the point is was the actions of those people or those actions necessary to the mail fraud i understand are on it or they or they not their actions their actions the sales agents actions commenced prior to the completion of mail fraud and thus the government would say they're still not necessary but i understand in that you've had or an image this way you would have had a mail fraud without the actions of the people who save commissions no your honor or the you know i don't think you understand my question because every time i ask you answered a different way my point is it seems to me it's nama trying to tricky if the actions of this group of people or essential to the mail fraud then we decide what do we do with money they received and then i'm on my ass here's a timing thing if they do receive it you know commission i could draw looking forward what would that matter but we can't get to the basic information about these people who are working for commission where they have been a mail fraud i think based on the record before the court it would have been virtually impossible to have and that's a no brainer for now mail fraud then it sounds to me like those people are integral a necessary part of the mail fraud in that what it sounds like yes there are so why then is there was a lot of money for their actions payment for their actions well that seems to me to be part of the mail fraud your honor that i think the the payment to him was not necessary to the mail fraud you think it's just a question of timing if they'd given him a droll that commissions would later go against would that it made potentially more so but in this instance all of the payments happened after the investors paid their funds to and i think it's not the role that actors and actions played in the fraud which you say were essential  when they got their chick that makes a difference this is a very fact specific case michael whatever the facts of this case your theory is the timing of their chicken arriving determines whether or not his monologue or part of the ma that if somebody had gotten their chick hand a liver to him once before the person decided and the person got it one second after one would be money laundering one would not be  money that would be a better argument for the appellant but in this instance the checks did as a matter of fact come after the investments and counts nine eleven i would direct the court's attention to that more distinctive nature of those payments in contrast to twelve thirteen and fourteen counts nine eleven are charged as the payments not from a you know to the marketing company h i c but the second leg from h i c two mr and so those payments are even more distant from the the heart of the mail fraud but they're all for payments for actions which actions you say are absolutely necessary for the movie that is correct your honor but the fact of the matter is the conspiracy wasn't tied to a particular payment so when you're asking what evidence is in the record as to the other types of expenses as the money laundering i would point you to mr brahms that's testimony generally that he received  quite a bit of money two hundred thirty two thousand dollars from investments from that but i will i will admit that all of the evidence in the record pertains to commissions paid to sales agents none and there are no other types of  money laundering counts and securities fraud counts run concurrent to those mail fraud counts and although the court asked whether a sentence a recent saying was that necessary remedy it is possible this court can certainly order but it is not a requirement in this instance judge payne made it crystal clear the district court that it was his intention to impose a sentence of sixty years if you're wrong then there's no harm by removing exactly your honor that  said the you know practical and and financial concerns of reminding to do a full recent thing as opposed to one in which we simply wiped out wipe out the special assessments are served to two different types of  guidelines are not affected by the omission of the money laundering counts in either way mr walker is at a forty three the literal end of the sentencing chart and the court already imposed a downward variance so to some extent it would be  the global sense in that his nothing about the sensing is changed in terms of the guideline factors of the evidence before the court the stated intention of the court the downward variance he already got as a steward of the government here on our side simply looking for have looked i'm not finding anything exactly on point but i but i can see that that the guiding factor in pepper is that you have the authority to order remained but it's not it's not a requirement that it's discretionary and so the government would ask you to exercise that discretion in using judicial resources wisely and simply ask that the special assessments be struck if you find that there is a murder problem in this case unless given the posture of the court unless there are any other questions brief points to make on rebuttal and all will be terse the i sees them one thing that the government said and that was that the payment was not necessary to the mail fraud in order to believe that the government would be required to believe seth solicited these potential investors just because he had nothing better to do and that simply wasn't the case the sole reason why he went out and solicited investors the sole reason why he marketed this product was because he was promised commissions if it wasn't for those promises of commissions he would not have been involved in this conspiracy and make no mistake he was charged as a coconspirator he was charged with conspiracy the fact that he pled guilty to mail fraud does not mean that he was had went out recruited wholesalers and he recruited those wholesalers on the basis of promising to pay these commissions he wasn't asking them to do any type of altruistic jobs around the community to find investors to make money they were selling a product they were selling a bonded life settlement and none of those sales would have taken place if it wasn't for the payment of these commissions and each one of the charges in the indictment for money laundering were all based around the payment of these commissions so it's impossible to believe that this mail fraud scheme would have incurred or the securities fraud scheme would have occurred if it was not for the the activities of these sales people who were lured by the promises of these commissions it and then briefly i would also address point that the government made that this this court should not remain the case out of a concern for judicial resources and of course judicial resources are not only germane to the government everybody that's working in the court cares about them but the government's not in a position to determine what's in the mind of judge pain when sentencing this case was it was it any evidence in the record that there was at least and it was someone conspiring to make payments that were not commission payments put money somewhere else put money in this they was again transfer money other than commission payments no not that i'm aware of the there was money spent  dinger mr on cow mr abdul have that were not commission payments but those were charged in the indictment as money laundering in those lost those those transactions also were not part of this scheme to defraud and were not  transfer of money or wealth or assets they didn't allege that in this case other than these payments where is there evidence that there were payments these folks anybody alleged to be the conspiracy other than for the commissions no not that i'm aware of i don't recall any payments in the record or any mention of any payments other than the payments of these commissions the commission of any plan to make such papers somebody said i was going to use to pay off debts or anything like that or he said that or something like this i just wondered if there's a way if there is you because you could have a conspiracy to make a payment in a conspiracy for money laundering  what judge payne would do with this case on resentencing the fact was that there were several money laundering counts each one carried a twenty year sentence and when judge bang granted a downward departure he would be starting at a much lower ceiling and granting that  departure of if this court order remand so although judge payne could issue the same sentence there's no way to know that he would and he should be given that opportunity to do that because this was a bundled science and if there are no further questions or appreciate the time from the