would i'm not saying it needed to have been done i'm just saying factually there's nothing that's correct the preventer that that's correct and there's nothing factually or legally they would have prevented the defense from putting in the witness of whether you know to what extent we can feel it's very easy afterwards to say you know i would have done this i would have testified as follows you know that it's sort of a fairly easy thing to say but he he didn't did subsequently testify under oath that she was not that would be inconsistent and certainly the government would have a good case for pretty prosecution of w that defendant was not named it was not named kristina cameron and the government as judge kozinski points out would have difficulty in bringing a perjury prosecution in choosing which statement was false in which statement was the in fact the true inconsistent statement it is of course the government's position that any testimony offered at trial that a defendant cameron was not involved would be the progeria statement that we would use his plea agreement plus the evidence presented at the trial of the bank employees who inculpated defendant cameron would indicate that the previous statement is the newly offered testimony that the defendant is asking to receive a new trial in order to offer so it goes back to the in interviews he said sure she had nothing to do with these hundred forty fun calls in the month of january which disposal and or business calls you know she had and i'm going to hang ups and hang ups she had nothing to do with it and well i'd like to testify but i'm a little concerned that now telling the truth quote unquote might have net negative impacts for me that's not a defendant coming forward and saying i really have new evidence this person is innocent and mr justice has been carried out  just after the fact and trying to take the blame from self because after all he's got nothing to lose he's been sentenced he can't be retried for this event he can't be we spent since for the defense and i was exactly why the ninth circuit as long cautioned that  given vague statements and said well gosh maybe i'd like to but i'm not sure that is simply not a sufficient showing required by the ninth circuit in a motion for a new trial and the second part is would this new evidence likely result in an acquittal and the answer is no if we look at the evidence presented at trial we thank employees the coworkers of the defendant who identified her as the primary bank employee who helped with an attempted fraud two weeks before the actual fraud was defeated by a coworker who used good judgment and caution the defendant had every reason to act with caution and protect the bank client she didn't she allowed this nephew to come in ten days later she did not seek out the  employee who had the good sense to use caution and protect the bank employee instead she went directly to the teller line of a brand new employee someone who had been there only three or four months and was not likely to question her judgment she then authorized each and transaction except decker her immediate supervisor who four made it in fact everyone told her not to she lied to cover up her offense she also said she didn't know mr to thank you next steps through the bank through their their customer relationship after she would show the phone records she agreed ok we had a social relationship too she said that the imposter who came in presented five forms of identification in fact only two percent did she said that she checked intent and indicate her intent to cover up her behavior after the fact this is not someone who behaved unwittingly this is someone who knowingly participated in the offense she defied a direct order by her supervisor who for address the set yes of course your honor why and i will just tell you i have no real issue with the new trial motion but i have a major issue with the sentence was whether the judge gave adequate reason other hoses guy on he doesn't the judge doesn't have to go through all the thirty five fifty three factors but i have the impression there the judge didn't really give any reason for this statement for the south your honor it is true that at the time of pronouncement the judge did not list out his reasons for giving a sentence but what is also clear that there was an ongoing dialogue during the sentencing hearing during which there were in fact two hearings and a series of briefings requested by the court that the court listened to the defendant's arguments for leniency listened to her three five five three arguments and told the the defendant specifically of them he did not believe she was a minor player and he did not believe that she was naive trusting and taken advantage of by her codefendant he skipped over and did not address what i consider and what the court apparently consider to be non meritori arguments the fact that she lost her banking career because she was a branch manager who did product her own brain bank and that she chose to abort a pregnancy while this case was pending those are clearly in my mind arguments they didn't require the court to say there's a as i understand that argument but i still have some difficulty with whether the standards that that should be under booker for a reasonable assessment require that we have some sort of statement of reasons from the judge and and the you know questions aren't really  that connected to just girls question are you arguing here the since the court listen to the statements made by counsel on his client's behalf and then of same time basically the part of the bottom of the standard response meltzer i appreciate your concern and i think the guidance we have in a case like this where courts have been struggling as to the proper way to comply with booker and the proper records to be made this case was sentenced last july when guidance was still being determined by the by the higher courts and i think in the record that we have before us the critical question is the seven circuits that forth and cunningham is whether by the record itself this court has enough to see that the district court actually considered and reviewed the factors as required by booker and whether or not there's a sufficient record for this court to review the reasonableness of the sentence and that goes to mark judge martinez's question is is the fact that this is a below guideline sentence the court in fact listened to the defendant's arguments and asked where the co defendants had been sentenced and then departed downward from the guidelines arranged to impose a tension between her two co defendants it's clear that this record before this court is sufficient for this court to decide whether or not that sentence is reasonable and in this case we do know that we have a branch manager who facilitated if five hundred thousand dollar fraud on her own bank she received a thirty six month sentence the defending herself in my mind when you gave your answer so i didn't read it before today i somewhat the same boat then as in response to your description of the case it seems to me that in a and where there was such national attention in the police officers were subject to such deserved scorn and ridicule and loss of career there aren't a number of factors playing in that aren't present in this case and in this case it goes without saying that a branch manager who chooses to commit a fraud on her own bank is going to lose her job it's the natural consequence of the action she chose but that is not always the case with a police officer who bea career that's correct your honor and i respect the point that you make in reference to the clean case but it does seem that it is particularly in a case where the fact that she is a branch manager plays into the calculation guideline sentence because she abused her position of trust it seems that the guidelines do take into account the fact that her position is implicated and it seems that you voted for just another minute on this point i was time i believe that's correct it was listed as one in connection with the list of factors that he believed that the defendant was naive she was trusting she lost her job she terminated a pregnancy her friends and family loved her et the remaining arguments that were listed at the end of that were true so there was at the first one the defendant led her argument primarily with the idea that she was not guilty and if in the alternative court still found that she was guilty that she was a minor player and got into such detail of the facts of the case which had occurred a year prior that the court asked for further briefing to set forth all the facts of conviction and then put over the sentencing hearing two months honor so actually i would like you to address the sentencing questions that have been raised also here booker doesn't that require that the court articulate any specific things on the record book or requires a court consider the thirty five fifty three a factor is correct that's right so it's from the record we can tell that that consideration took place for example given a sentence here that is half a year below the bottom of the advisory range is that that's sufficient  sentencing judge doesn't specifically articulate the thirty five fifty three factors that any sentence is presumptively and reasonable regardless of what that is now i don't think that but where defense presents a compelling or at least arguable factors and the judge says nothing at all about them and doesn't give a blanket statement that is considered these types of factors rejected then there's nothing for this court to review in terms of you don't think that by going to the sentencing good inherently the court has taken into account those factors i mean that there are factors that go into both counts for a lot of very helpful argument