that's correct or not as a matter of course of course right but there was no evidence other than that she invested in this mail fraud situation there's nothing that shows that she was in any part of the fraud or misled in any way the only evidence basically they came in on this count was her check and the evidence of the  basically the argument that the the difficulty with that is you get an innocent count that gets swept into this whole mix of twenty some counts and thirty witnesses and all this and that's why i think it's important that we have to take a look and not just say well it's kind of a pattern and then somewhere in there at least on most of the the counties where there's a conviction there was statements that there were misrepresentations made to the investors and here even the cold your position that there was also a legitimate activity to which this money in part or well there was but your the statement that you made would seem to just shift the burden of proof to the defendant that well the question is what rational jury have believed beyond a reasonable doubt based on the all the evidence that was presented that you know for reasonable juror could have believed beyond a reasonable doubt that the entire scheme w l i hear of the tone of outrage when your voice about that but if the government has demonstrated that there's nothing legitimate in a particular scheme i know you don't necessarily but it's possible for people to have a business  she was one who actually did get a refund so i mean that's not dispositive the count but i think that we still have to scrutinize each individual count and make sure also raises an interesting legal question with respect to the mail fraud conviction on count seven which was based on a letter written by the lawyer for one of the investors the problem with it from your perspective that the letter exchange was with a lawyer and yet well it was just a non victim acting for the victim well yes so it has to be the victim himself that's all that all the cases have dealt with letters written by victims because what if what if family members would have thirty thermally members wrote well you know writing campaign i mean it happens to be a lawyer but that's the law doesn't happen to have a ninety year old victim who can't hear probably right and he lawyer in communication and the representation or the there's nothing that talks about third parties well let me let me put this in the context of a different crime if i know that you're represented by a lawyer and i want to use the mails to threaten to kill you so i can send a lawyer a letter to your lawyer saying please tell as the representative of the client so why wouldn't this be permissible in this sort of representative capacity i see nothing in the case law that permits the only thing that he needs a matter of logic who are who are worried about doing it right and they get a lawyer to help them out are not really victims even though they've now expanded more money than the victims who did it themselves i mean that's really the result of your libel no i'm just saying they're victims but maybe not of mail fraud maybe they're victims of of theft or some other crime so if we're focusing this is a mail fraud count the count is specifically based on the letter and there might be other counts in which the prosecution of the government could have charged my position is it's just it doesn't fit the criterion for for mail fraud four the mail fraud and the monetary transaction counts should have been grouped the fact was that the defendant got an extra point in the in the sentencing calculation there  there was a risk to the guidelines in two thousand and one and to make a long story short it's our position that that applies when it occurred occurred retroactive application to the guidelines now it's true that they parties agree that there would be an agreement that they would be sent out of the one nine hundred ninety five guidelines there was nothing that said he couldn't take the benefit of the subsequent a case if i that came down and i just happened to see it last night which i believe dealt with this issue and i might be mistaken for the river it might have been a case that you out there but i read it late last night and reviewing some of my notes if i could give the court just like  the defendant was given four points for being an organizer or leader of the enterprise that had five or more participants and a participant in somebody under the code loose considered to be criminally responsible not just somebody who's doing it or involved not necessarily criminally responsible although they don't need to be convicted and it's our position that there was an insufficient showing up there and that there were five participants the best i can the government and it's and adding the numbers up other than there are there were other participants but they focused on the people involved that the government focused on six people were i right that i have a dispute with three of them and that's where the content ok and as is reflected in paragraph sixty of the pre sentence report the defendant received one additional offense level when the offenses did not group under the new guidelines even assuming that this is an explicitly retroactive application of the guidelines which i'm not altogether sure that it is but even so it would only be one additional offense level if the offenses did group so there really is no change to the and its status in terms of the sentencing so that issue really  presented that any investor who invested in this particular scheme was defrauded and in fact there was direct evidence obviously that her check was a direct investment into the montgomery as from our system and even at sentencing the defendant emitted that this that's again the standard is that this court reviews it would be for clear air and certainly it would seem that the district court found in the record supports the fact that the defendant was the leader here he trained the telemarketers he hired and fired them he  he controlled the money that came in and out of the organization it was his operation there are two theories under which he can get four levels of enhancement either one is at the enterprise extensive or two that in vive that the enterprise involved five or more criminally responsible participants we believe that both apply in terms of being otherwise extensive the it could have been found because there were at least twenty to twenty five telemarketers who were working at any one time for this enterprise admitted to the government that they knew that they were making this representations as well as the three telemarketers opposing counsel identify who were paid under secret names certainly one of the navy misrepresentations in this case is the fact that only fifteen percent commissions were paid out whereas it was established a trial beyond a reasonable doubt that at the very least commissions received by the telemarketers for upwards of twenty five percent sometimes as much as forty percent these telemarketers at the very least knew that they were receiving of the pre sentence report that is yet another telemarketer who the u s probation office identified as a criminally liable participant in fact the record at trial established that brian clark was on the phone with a number investors including retired schoolteacher marguerite very briefly my in reviewing the sentence i believe that he was criminal history of three and twenty seven points and i believe if we took the one point off he got that one point for the group so i think there would be a difference it would give him a possibility of getting a sentence of less then he got so i'm getting quite wasn't quite sure what council's argument was on the alternative to the otherwise extensive the court never ruled on that the court basically ruled