forms two functions one is to provide nose to the defendant the other one quote here from a case limits the defendant's jeopardy to off answers charges by a group of his fellow citizens acting independently of either covered bank victim theory not that i'm aware and then there was no objection to the jury charge as given that's correct and no rule thirty three motion so this is review plot so you're saying that it was legally defective on the charge given by the district judge not objected to which implied that it this could be a static country or i could be statutorily covered because as a mortgage lender is that's that's your legal arguments are thirty ish ok your second issue is that's i'm sorry that's the second nation the third issue is a matter of law and i don't know i'm not getting to sensing i'm so i'm trying to understand your objection to the jury charge is it because you say countrywide was told the jury was told they could find that their statutory only covered bank because their mortgage lender but that would be ex post facto that's one argument right the jury charge said nothing whatsoever about residential mor lender ok and that couldn't be a theory right given the timing well my first the argument in our initial brief was because there was nothing in the jury charge about residential mortgage lender than they have a statutorily correct that is yes sir so your argument is just there was no proof that b a c o nd in fact the opposite was said is that essentially argument it is as to the amended indictment but i we're still i'm still arguing that the government went to the grand jury and presented this case as a residential mortgage case not as a f t it was your i mean maybe i'm wrong legally but why do we care what they present to the grand jury you had an indictment in front the statute that he was charged under included agent did not include comp for the government filed a motion to have the comptroller language stricken from the indictment was granted as stricken the surplus this is been eight ok are you reading from the the jury instruction that says the that countrywide was owned by bank of america i'm reading from the fifth element juries told you not to find beyond a reasonable doubt that the bank that's allegedly surplusage well that would be your decision but i'm saying that i'm saying that's a problem with the charge i agree that's a problem in terms of variance from proof because they never proved it at the time of the crime that it was it's a very they didn't prove that it was  supreme court said and again i'm back in grand jury here it is not impossible nor very improbable that the grand jury looked mainly to the comptroller as the party whom the prisoner intended to deceive by the report which was made on his requisition and returned directly to him how can the court say that there may not have been more than one of the jurors who found this indictment was satisfied that the false report was made to see the comptroller but was not convinced that it was made to deceive anybody else and how can it be said with these words stricken out it is the indictment which was found by the grand jury now there's a nine hundred eighty case that provides some interpretive commentary to mack the two bang six twenty six if second to sixty four to sixty eight says this is talking about bang here the case been submitted to a pet a jury under the original indictment and a guilty verdict had been returned it could not have been sustained because the court could not have known where the jury believed the comptroller had been deceived not a crime or whether the agent had been misled which was a crime and what that's what we have here i mean obviously if the jury if the grand jury was sold and this could be solved i don't have a is it also subject to premier if you i made three responses to the to the government's argument and first of all i don't believe it is subject player review and in both my principal brief in reply brief i have attempted to show how i believe there was preserved obviously that's not the ultimate call the make but i don't believe it is reviewable for player when you say or you meet factual that there wasn't a factual basis to find this to be relevant conduct or legal that the district court identified the wrong relevant conduct subsection well the p s are there to relevant conduct such relevant conduct subsections the the one that p s r used was the one which appeared to be relied upon them by the co which the government said sentencing we have no problem that we don't have a revision so that's the one that everybody went with and that one required a finding that it reeked that the conduct incurred in preparation for and i came into the other two prongs but none of those were fulfilled as to any of these extra not properties k that's argument number one the second argument was that i see if i can remember a two that it can  time frame of the charge conduct if it's common participants and there's a second ok the government's argument in the brief was ok what was all in a two not a one k and so i'm saying wall you get trial we want on a one you can't change horses to a two and i cited the second circuit case and there's i think a third circuit case that's contrary to this it's in the footnote but second circuit says that that language of in preparation for some yada yada yad goes also with day two and again for the same reasons that i argued the original brief none of that applies to any of these nine properties the last response i made in my reply brief  o the government's argument was ok let's assume that you can go under eighty two there are still and i don't remember how many properties now that still weren't i mean they were just dumped in there there's no there was no current connection made at trial it was no connection made at sentencing by any witness called by the government to connect any of these properties i see not any of the there were there were several properties that  were obviously and i talked about this in reply brief were mentioned at trial and if you went under a two yes those could be considered relevant conduct based on trial evidence to dispute to the district court and any of the nine propert accuracy of those properties what the what the defense attorney said was in the pre sentence report we believe that we believe that the amount of loss is three hundred eighty thousand dollars whatever associated with the indicted in i should i should know this but i can't remember whether the complaint was only about restitution or about the office level because office level obviously is calculated partially based on the amount was two and i can't remember whether the argue whether the argument was on the other properties were never mentioned anywhere i want to say six i can't i should i should have remembered that there were  think i've got lumped them together is five or six i mean the statement i think i made no reply my reply brief was these were basically looked like they were pulled out of thin air and just put in the pre sentence report with  two that talk about ok this is what you need if you're going to connect these these cases on the other hand are not enough to connect them up and i believe that as those six were on the right side of that proposition and there's just nothing there to connect those to the amount of loss which affects her based off its level and her total law finance level and the judge sentenced her at the low end of the advisory these other nine properties were never connected to the charge property by testimony or by a sensing witness if that's if that's what you're saying you're right paragraph in hind gives a little thread country was defrauded it was she just said the other people were the con people she was duped so you go back to judge her for days a trial the judge heard her cross say yeah all these other ones happened is it just a matter of the jolt that the judge never heard all of those other ones which incurred some of them in a few proceed under a two unstated ansted of a one arguably there's enough there that you can add some of those relevant conduct and i've conceded that under would you mind starting where we left off the here on the amount of laws that should or should not be included in address to six properties that were never mentioned certainly  a as a as a just a brief beginning to that we strongly believe that he has waived that argument by failing to specifically object factually to her involvement in those properties and his judgments and pointed out her defense never was that she wasn't involved but it is true that on it is used as you've mentioned i want to get judge wieners question but you just offer that could you read for me he made this p s r objection last has to equal restitution that wouldn't go to this evidentiary issue that's correct and he gets to sentencing in the courts as any objection oh i see there is one he says you know i don't i think a lot amounts to much read for me you probably know if your head what does the district court say because that the district courts ross monts to me now it's not attributable i believe it's a conspiracy so the entire conspiracy was foreseeable to her clearly those other transactions were foreseeable her to her and so i think it was correctly calculated and then it goes on the rest there to say or how is that not objecting to forsee ability and it should be a bit tribute billeted instead of just in there over the last week was restitution well then in the court goes on to talk about restitution that's is not preserving we don't think so and here's why that the the argument was the about restitution and then the p s r of the probation officer makes its response citing relevant conduct of the defense counsel gets up again emphasizes this is about restitution the government responds by saying restitution and amount of loss of separating at what t considered as a matter of relevant conduct and what can be considered for rescuers question i don't want to put words in space go ahead and show us how it is attributable what are the how do you connect the six specifically to the trial and certainly that never should detective it's true there was nothing at the trial about those properties the only evidence that comes up is in paragraph nine of the initial p s r paragraph ten of the revised p s r and that paragraph says the government has supplied to the probation officer records that indicate that the defendant sentencing but that's our point here which is that if the defendant had objections to paragraph ten or paragraph nine in the early p s r or even when she got up or excuse me with the council got up at sentencing and said our objection is to the fact that these transactions took place or that i was involved with them then the government can put those records on or can put a witness on the rule thirty two makes quite clear that a court can adopt undisputed portions of the p s r and if the defendant doesn't get up and say i'm objecting to this information that is clearly identified in the p s r as just commented there's the court's not put on notice that the government's not put on notice that it needs to actually prove these things up if we read that home sherman showing a transcript can we doubt that there was a dispute about at least the six properties that were never mentioned i think that it is impossible to read those that one sentence alone but i still think yes this court can doubt that that was a dispute i mean even up here today counsel has said no there was never any dispute about her involvement in the in those transactions never any evidence that you are other than the  is absolutely correct judge wiener but the point is that is evidence and the point of having to object specifically just to that type of evidence is what requires then the government to shoulder its proponents of the the evidence burden and say in fact what is here in the p s r we can call a case agent we can bring in the records and put those off but by not doing that the defendant says indicates that her objection was to the legal theory that i should only be held responsible for loss commensurate with converter the problem of this record and it's all the sentencing records even if we were to say there's no evidence of jackson and it was only a legal theory objection it seems pretty compelling that probation and then the district court adopting probation went on a wrong legal theory the a one subsection because you're you're not disputing these nine things are out of the timeframe of the indictment right that's correct yet when we have legal error even if we were doing agree with you that we can't reach  evidentiary we would push back a little bit as to that and also in doing that to respond to an argument that the fence makes which is that the government made the argument albeit obliquely that this was an eight to element conduct when the government gets up at sentencing to respond to the defendant's objection first of all says there's a difference between restitution and amount of loss which is really what the the issue was asking if the government waited we know what the probation recommended and we know th district court only assess this under a one i don't think that's right touching it's because what the government says is it's the same course of conduct and then it and then the government and then the district court says you know i have to overrule your objection i think the court can also read that as saying i agree with i don't know the answer about the timeframe i think it's harder to make the argument that it's in preparation for the offense i think it's part of the same course and conduct and scheme i also just to briefly respond i understand defendant's reply brief to suggest that in proving up a two you also have to prove up that sort of course of preparation citing the second circuit fitzgerald case that can't be correct and that's not what this court has followed in a number of cases bens one that cited in the briefing and a host  carlos and a host a case and the second circuit itself hasn't followed that particular language the most courts this court and the second circuit see a one and a two as discrete ways to prove up relevant conduct and for purposes of this appeal yes we're  harmless is that you're well i don't i'm not sure we actually can make the harmless argument it would be harmless because we think ultimately was an eighty it was correct under eighty two if this court goes all the way back and says well the they needed to the government needed to actually prove up the evidentiary record which again we think is incorrect because it wasn't preserved we agree that the only evidence there was to the p s r and that would change the last amount and i don't think we can make a harmless error argument as to that  charge just one sort of fraud moment if it was all common scheme and plan why would you say on or about earliest date then he would have any of this problem there is nothing in the record i also don't know why i can add is that the earlier versions of the indictment this was a didn't charge to a parole transactions not the april we've been talking about six transactions they were ten all together one is the count of conviction ssri were in fact amply established at trial and were part of the earlier indictment these are three transactions in april two thousand and eight one other brooke meadow property and others i can't recall off the top of my head those four together count of conviction plus the three that were proved up at trial established a loss amount of four hundred eighteen thousand dollars that if there no other questions on relevant conduct a happy to that also address some of the first two arguments as to the residential mortgage lender in our view the use of that phrase is neither gives rise to an ex post facto violation or a constructive amendment of the indictment and in fact this essentially tension between the defendants two arguments on the one hand i understand the defendant to be faulting the inclusion of that phrase in the indictment and then it's exclamation from the jury charge and the way to read that i think this judge chicken soup was was indicating is that that wasn't a theory that the government was relying on the theory on which the government relied is that this is a financial institution insured by the f d a i see that's what the proof a trial establishes the proof at trial establishes that at the time of the offense conduct in june of two thousand and eight that countrywide was insured by f b i c and so therefore qualified as a financial institution under the jury charge fact that the conduct at issue in the trial was june of two thousand and eight evidence also a trial showed that in july of two thousand and eight the month after acquired countrywide so there was some some basis for but it still of a mistake in institution it was undisputed at trial that countrywide was a financial institution because of f b i insurance at the time of june two thousand and eight i was testimony from an employee that  countrywide later of bank of america that's what was so much in the indictment and exactly and that matched precisely with what with what with the actual allegation in the indictment so that that is again it with shows that there is this is this is something that trips over no harmless ess problems as to the jury charge itself unless there are specific questions on either of these issues i'm i'm happy to yield the balance of my t you is to the response to sentencing to begin with didn't read my brief which is always a good thing to do before you come here it was relevant conduct was the objection this is from pages fourteen zero eight fourteen zero nine of the record in the courts as an objection was filed you wish to address that yes your honor this is the same we would ask that the base level be reduced to seventeen that's not restitution that's off so that we would base that on the fact that misheard was convicted for the charge on four thousand six brownstone property the loss amount was approximately eight hundred eighty thousand we would ask that that be used to to determine the calculation so the a usa then responds and i will read it all here but he said he says he uses the term relevant conduct about four different times and the judge overrules it so in response to t property but not because no one ever mentioned the other six relevant khan well i'm certainly they never there is no evidence i'm arguing there's no evidence anywhere of the other six i'm arguing that in it if you're if you're to play in error whether it's preserved i there's nothing say other than what i've already said if if if you if you can go back and say well we can proceed under eighty two even though they were argued a one then there you can use the evidence that was a deuce to trial and you can feed some of these other properties in because they were mentioned under four hundred four b and i'll concede that if on the other hand the government's restricted or and the government has the burden here i mean i'm stating the obvious there but it's not it's not miss herms job to come in and demonstrate why all nine of these didn't shouldn't count it's the government's job to to to prove they should be part of that conduct so i'm saying the judge was on definitely on notice that this was about not about restitution or could have been about restitution based on the written objection but it's certainly he was put on notice here it's sentencing that this was a guideline objection as well so i'm making that argument mr pearce it was pretty clear that the government was proceeding at this case under a  of mr pearce made the point that and there are i cited a second circuit case for the proposition that the in preparation for language fit both is attached to a two and a one and there is a seventh circuit cases against that mr pierce said there are lots of cases in the fifth circuit that hold that it that it doesn't go with a two if he's right great i couldn't find any otherwise i'd put him in there i see