what the scheme of the conspiracy here basically involves was the submission of fraudulent information identities of individuals through the tax return system basically filing false tax returns and retrieving the monies that would come back on their return now what i'm suggesting here for you all to consider your honor is that we're not here to suggest that my client there's no criminal liability in this matter that she's somehow innocent of all of these things i think there's ample evidence to prove that she was involved to a certain extent the graffman of the complaints that i raise in my brief have to do with the proper measure of criminal liability what is the proper sentence whether we have chewed through the guidelines or our culture with the discretion of the court what miss garcia the net the complains of is about the link the sentence that she received after going to see by the district court the concerns that we raise have to do with those issues and surrounding really is the biggest chunk of all of this where where we began is how the loss was calculated at the district court level and what i've suggested here is that in the trial of the case if you review the transcripts and the actual trial the operative exhibit here has to do with this government's exhibit two eight a summary of these seventeen hundred some odd tax returns that the primary witness for the government agent p b testified to have been discovered throughout the link the investigation into these matters now what is troublesome about this your honor is that the the it within that government to a is a summary of many individual tax returns now at trial not all of these individual tax returns were investigated each and every one that would have been a ridiculously contained believe was nineteen individual packets individual items that were presented as evidence to support the summary of the larger seven hundred but again which troubles of about this your honour's that we're talking in the confines of the agent's testimony the way i understood it was it began with an individual known as mr meters who was submitting these checks to various check cashing concerns in the past a texas area and cashing the checks now agent peavy contacted the individual the owner of the of the check cashing concern and discovered this individual had been cashing a large number of checks at a particular check cashing concern and that's how they and the the investigation from that point kicked off in the a passive area but what had transpired what i believe transpired in the trial itself was mr ramirez was running his own scheme along with perhaps another individual a mr lot of us that evidence was a deuce to trial as well so we have several different schemes going on now what was not parsed out at trial was and up and not really parsed out in the sentence scene of my client either in the pre sentence report or just in in general by the by the court were which of these returns which of these islands were actually attributable to my client mr nettle again i think a trial we developed that there were several different conspiracies like what the court needs to understand is that we're not talking about an unusual or actually very complex criminal scheme here it's really rather simple you get someone's in the individual information name social security number address date of birth fill out a ten forty and send it in because of the volume that the iris handles every year the return will likely come back now what do you do with that return while you you fill it out to maximize the return you're going to get so you fill out something like some of that self employed where there's no w tos no real paper trail to follow without some kind of audit you asked for the child tax credit again to maximize the return all of these things operate tandem but they're not unique there are many many many people unfortunately that run the same scheme so what we have here your honor is the de perhaps the mixing and matching of several different conspiracies all within the confines of the one and with the returns across the board were or were quite similar weren't they they showed some of our occupations such as a barber nail salon and they were more or less five thousand dollars or less to dependence or that those sorts of things that's correct or not i i can't tell you that they weren't that dissimilar in that way but again what we're looking at here and i guess what the government these various returns are all similar in the way that they were submitted they are really not uncommon for these types of schemes what we're talking about runner is not a fingerprint this is not d n a nothing like that again these are these are common knowledge type items to people that traffic in this sort of in this sort of criminal activity how do you maximize a return without raising too much of an ira we still talking about your complaint about the last million to about two and a half but no not exceeding three million dollars in total my client was sentenced on an amount that reached just under nine million dollars having to do with perceived loss or expected returns which never got cast and actual monies that came to one of these conspiracies if not many of them but those that's our suggest with honors that the loss was not really hammered down properly at in excess of what actually transpired and what she actually was involved in the restitution was just right after the three million figure that you just mentioned yes your honor because that was the that was the actual monies that were were paid out by the internal revenue service the remainder of that was i guess returns that were still in the process and never actually been paid out to anyone so although those things and some can very much so when i understand how the guidelines wor mean to interrupt you but what difference would that make in terms of the sentence in your view about eighteen levels change the enhancement was in one thousand level enhanced which which is significant how the court would have actually ruled on that given some discretion the district court is a guess still left up to some some some estimate some gas but the levels that we're talking about the level increase the enhancement under the guidelines is significant for purposes of the of the that so the first two issues that we present universe are somewhat related although they approach the problem from different perspectives one has to do with how we calculated the loss the second has to do with the the criminal conspiracies and whether the court captured these things in trial in the proper way sometimes what we'll do is we'll ask for a multiple conspiracies instruction something along those lines however that didn't happen in this case we the case was submitted to the jury strictly under pretty basic jury jury instructions and although my client was found guilty under each of those counts there are certain problems within the way that the gas is calculated now i'll move on to the other two issues just to so that we're we're clear on these things your honor there were three other counts alleging aiding and abetting and what what i believe was going on with these aiding and abetting count the government in the presentation of the case was trying to put a face on the this otherwise kind of amorphous sort of victimless kind of crime all if we could call it that although the government was a victim in this instance and so i think the the government counsel the u s attorney's office wants to put a face on these things and present someone to the jury that has some connection to all of these things but what occurred for your honor is that while the government might point out that there are certain small areas where or certain evidence that was presented that seems to suggest that my client was involved in some criminal lie in some criminal act which again we're not denying that there was some evidence to that i think it also falls far short of being able to to guilty beyond a reasonable doubt for aiding and abetting there is simply not enough evidence presented to find mr nieto guilty beyond a reasonable doubt now i understand that the jury found that however i think mixed into the larger the larger case and the larger aspects of this of this case and the the volume of information and evidence that was presented at trial i think the jury could have been somewhat overwhelmed and maybe not appreciate some of the nuance and some of the some of the elements that were presented to them now perhaps that's a failing of trial counsel perhaps that's a failing of our of our instructions but nevertheless we have we have a issue here judge that that needs to be addressed we have three other counts that my client was found guilty of however again these things all are sort of linked we're talking about several different conspiracies several different people running the same sort of schemes these individuals had no contact with my client and not to suggest that they should have had contact with my client but they themselves had no idea toes existence now of course i'm not going to suggest to you that that's necessary in these types of schemes and oftentimes an identity theft occurs that way where the perpetrator is not identified by that by the by the victim encamped however with mr see it any of those conduct in all of this it's difficult to point directly to what's necessary to find her guilty beyond a reasonable doubt now i'd like to closure with the last issue that we have having to do  before her case was processed by by the district court there was some relationship between the two i'm not going to suggest there wasn't there may have been an apparent perceived an actual conflict of interest in this case that may be all true and all correct but the problem that we have here your honor is that the district court and the government acted in concert in removing a counsel removing my client's choice of counsel without so much  hearing that can't be the way that we operate here you know that kept don't don't we have that we have some case law which there was no hearing and we went ahead and approved disqualification well i think that the difference in some of those areas around here is that the the defendant in some way had an opportunity to be heard or present their their side of the case in this instance on the government's motion to remove counsel came the same day as the court district court's order to remove counsel defense counsel was not given any opportunity to respond in any way shape or form that can't be the way we operate well judge martinez is not the sort of judge who would do something like that for close to twenty years now and as the court suggests typically he's without reproach and i was very surprised when i saw how the district court handled this but what's instructive as well is how this court handled it when mr device again came back again to attempt to represent mr garcia the near the on on appeal and actually submitted the brief what what what what your honor did was united states and i don't think that councils identified any error in the disqualification and it's clear that there was both an actual and serious potential conflict here that's all that's necessary under the supreme court's decision in a week first is the united states is that the district court and we defer to the district courts inform discretion in these instances has determined that proceeding in this instance with a conflict of counsel or potentially conflict counsel is too risky with respect to the issue of a hearing we know from this court's decision in ahmad that the district court has discretion as to whether to hold a hearing and that decision as to whether to hold a hearing is reviewed for an abuse of discretion there's no abuse of discretion here because judge martinez knew already from having presided over the guilty plea of this codefendant exactly what this codefendant was saying namely that the defendant here misty and yet had instructed her to impersonate her at the border to retrieve fraud gently prepared tax returns and she also said during her the factual basis for guilty plea that misty nieto was producing  fake tax returns and was instructing her to send them into the united states and was instructing her to send wire payments into the united states to her contacts there so missed an echo when she was interviewed by law enforcement at the time of her arrest said that she did not send this person in to impersonate her that this person who volunteered to go and that this person volunteered to go so that she could try to have her baby within the united states so these two positions were diametrically opposed there was no way for an attorney to represent both of these defendants at once or even sequentially without having to say that one or the other of them was a liar that was an actual conflict there was also the problem that the original attorney i had confidential communications from this ties and he could not have disclosed those to misty and to and yet to without a waiver from both sides and so because of that judge martinez would have known just from hearing the guilty plea and seeing the fact of the allegations  was an actual and serious potential conflict here and that was enough for a judge martinez to say we don't need to have hearing about this i'm prepared to disqualify this counsel and again and repeat versus the united states that's a decision that this court  limited remain and to see whether miss mr death could serve as counsel on appeal the district court held a hearing all of those conflicts were flushed out and the district court reached precisely the same conclusion the fact that this court re mandated for a limited remained at the government suggestion in this case does it isn't doesn't suggest that there was any problem with the original decision because the whole thrust of mr divided his argument to stay in the case on appeal disqualification and the decision not to hold a hearing i'll turn to the loss estimate because that gives us a nice way to get our arms around the extent of the stolen identity refund fraud or serve in this instance there shows the final calculations that were used both the trial and were found in the p s r to be reliable and then the district court later also found to be reliable i would encourage the court to look at the original government exhibit one because the scan first in the record on appeal didn't yet either by her own admission when she was interviewed or by witness statements when the government rich got these returns the government took those addresses those lists of addresses that were linked  witness statements or missed any of those own statements and they the government polled all of the returns that were associated with those addresses what we would expect is there would be one or two tax returns associated with any given single family home or p o box but there  many many such returns and those returns followed the signature pattern there was always the head of household filing code or a single filing code the business codes for the income was  usually the same a barber a nail salon or salon there was always just about the same amount of refund there were always the same number of exemptions the head of household and two dependants and with all of those similarities  pattern emerge and so between the pattern of those returns in the addresses which were linked to missed in the atto the district court was justified in estimating a loss at eight point two million dollars which was the estimated loss in this case remember that they just this is not us and a matter of sufficiency of evidence for a conviction nor is it a matter of the jury instructions when the district court makes a loss estimate that's a matter at sentencing the district  only make a reasonable estimate that's from this court's decision in jackson in the district court because have to be the most recent last minute it just has to be a reasonable estimate of the losses in addition pre sentencing report to reach that estimate as well based on the trial testimony and the district court can use the p s r as a reliable source of an estimate which the district court did hear taking into account the trial testimony and when the district court does that the defendant has the burden to show that the estimate was wrong or unreliable in some way the district the defendant here is offered only speculation that somebody else might have produced these returns so explain the difference between the three million or so imposed in restitution  and eight point two million that you just mentioned yes the actual loss in this case was around the three million mark so that's the returns that were actually resulted in refund checks that were cash  that's the actual loss under the guidelines the district court has to look to the greater of the actual loss or of the intended loss the intended loss in this case was pegged to the number of fraudulent returns that were filed and linked through addresses  the pattern to mr and yet she tried to get eight point two million dollars and that was the intended loss under to the one point one of the guidelines it's the creator of the intended or actual and so what that's what the district court used in this instance here is that these three particular victims of mr any atos crime were not linked to her in any particular way and i have to take exception to the description of this crime is victimless when somebody uses your name and your social security number to file a return you have to then go back to the i r s and unwind that whole problem and the p s or even identified a disabled person who had who underwent substantial financial difficulty when his identity was these were over if i understand it over seventeen hundred real people with real social security numbers are false returns that's right these were real names real social security numbers and so we know that she was misusing at least that person's means of identification which is the thrust of aggravated identity theft charge we also know that misty mantle is linked because all of these treat victims had project returns filed using addresses that were linked in this day and yet to either that we know from talking to her coconspirators with the united states those were their addresses that they were using or because misty and yet herself used the address and gave that as a fake address when she was arrested by law enforcement and then of course they also fit exactly the pattern using the nail salon barber shop or salon the about a five thousand dollar amount of the return only self employment income so that you can avoid the i r s looking at your w two  centers several of those were taped in her voice was identified in those and in each instance she identified one of these and she identified a victim of activated identity that not necessarily these three there was only one overlap there but she gave somebody whose name market was a real name and so security number and that was associated with project the returns that were linked to her through witness statements the pattern or her own statements when you say she would check to see if there was a balance on the account that was the terminology that was used that that's i'm using those terms because that's the terminology that i remember from but i suspect that in most instances she was expecting a refund because she had put in the fraudulent tax return saying that she was entitled to about a five thousand dollars refund under this person's name and social security number so that was really the nature of the calls i just didn't want to overrepresent what they said and i guess what i'm going even i don't know whether or not the evidence bears this out but where i'm going is is it reasonable to assume that they're i mean almost three million dollars was paid out on these returns is a reasonable to assume that there were returns where money was not paid out by the i r s that's mean the fast returns were found that she was not able to collect all that's correct all right there was a there were a large number of those in fact and it's the record doesn't reveal whether direst simply didn't pay those didn't process those or in some cases her coconspirators within the united states testified that they kind of latched on to the fact that this was actually fraud initially missed and he had to would say i'm preparing tax returns for people who have been deported and they have refunds owing them but they're stuck in mexico i need to help these people and so she told her contacts within the united states that's what you're doing here you're going to help these people and when these people latched onto the fact that this was actually a fraud going on some of them started to throw away correspondence and letters from the i r s so it may be that ultimately those things were you know disappeared into the addresses that were associate with those checks and they went to talk to people the testimony shows that uniformly the people at those addresses said they were getting the tax returns that they were sending in from their stand yet so that's how mr any until originally came to our attention it's certainly possible that mr ramirez mr lara's were running parallel schemes doing a stolen identity refund fraud so imagine the identity refund fraud is very common but in this instance we know that these losses are connected to misty and yet because we didn't just take a whole universe of returns that had this pattern in them we also linked them to mr any a to through the addresses we went to the address first we found that these were linked in this these addresses  sentencing guidelines weren't the cutoff for the eighteen level increase that miss denny atoll received west three point five million dollars so even if you cut away half of the intent they returned the project returns  is calculated you'd still get over that three point five million mark and if you use the calculation that the defendants are talking about you just go down to levels or four levels not a full eighteen levels because she admits that there were some wrote some laws and a in any event it would be the defendant's burden to show that not the government's burden to disprove that because the p s r used made a reasonable estimate of the loss the district court adopted that and under this circuit's precedent then the defendant has to show that it has to show that through more than speculation that's this court's decision and simpson can't be that they just show that there's some plausible argument they have to show that the p s arts estimate was unreasonable the last  issue before the court is a cumulative error and because there was no error at all here there can't possibly be cumulative error and we also point out that at least the sentencing error is not something that this court has ever put into the hopper as a trial error he thrust of to know that although there were several references to the instructions in the instructional error would certainly be waived in this case there was no arguing there was no objection made to the instructions in the district court there's been no for anything whatsoever on instructions in this court and if there are is the primary witness for the government who investigated all of these matters compiled the summary brought forward all of these tax returns he testified that mr media's did not tell him at all that he had any knowledge or even knew ms garcia then you have to now again that's not to suggest that all members of the conspiracy need to know each other but this does bring up certain issues regarding the proof the deuce the trial should these people have known each other i think it's i agent p v that they had any knowledge of this car seat in the us so clearly there must have been several of these schemes running about several of these schemes going on at the same time in egypt peavy testified that many of these were also still under investigation to return again to the to the choice of counsel and what i suggest to the court is that we try not to run afoul of the perception that the courts  heard without written findings without any other rationale issued by the trial court and again would just martinez i'm surprised he handled that this way but there was no rationale given other than to simply dismiss mr divine now again i'm not suggesting that there may have not been an actual conflict of interest i guess once all the matters were were hashed out and everything was washed out in the end perhaps mr device should have would drop in the case or not tak the case to begin with but that's not the situation that that presented itself to the court years ago that was not the situation that the government brought to judge martinez it's the opportunity to be heard that in both the due process that's that's the key there's only two steps is your notice and your opportunity to be heard those things are not real hard and i don't think that we should be crossing over into a situation where the government and a judge can decide who someone's lawyer is going to be without any other inquiry into that matter i know that's not what this court is suggesting i know that's not what this court would do in this matter i think it needs to be