they please the court i raise a number of issues on my brief i'm going to focus the court first on loss amount the the fact that ms mitchie was convicted of conspiracy should not lead to a loss amount that includes everything that her coconspirators were attributed to so essentially factually here there's two incidents there's a november twelfth twenty four te search of her home that she cohabitate with her boyfriend willie smith and in that event there are thirteen hundred forty eight access devices located in the attic of that house swirled away on january seventh there is another incident and in that event there's one hundred and ninety six access devices located the court found her liable for all of the probably fifteen hundred and forty access devices under one b one point three the court has look at the scope of her conduct to determine whether or not that should be attributed on the november twelfth the jury found her not guilty of any of the actual events of november twelfth she actually not even arrested so the police on that day did not even feel there was enough information attributing to her to arrest her for that mind you the conspiracy count covered the entire time period but the actions attributed to her are really pertinent to january seventh additionally the you know acquitted conduct is a controversial proposition but but it's pretty clear under the case law that a district court can despite an acquittal on own account like that fine by preponderance of the evidence that this is relevant conduct right yes i think the court though has to make specific findings as to her conduct on in order to make it relevant in order to say yes on that date here's what she did but i'm going to find is the relevant conduct which i don't think that there's anything in the record as to that she the court does say that i think she's equally culpable that's essentially a summation statement but there isn't any facts laid out as to what her culpability was on november twelfth on november twelfth the items are found in a duffel bag in the roof a in their squirreled away the testimony at trial from the detective was some items are found in a bedroom he's not sure where in the bedroom and there the jury essentially didn't agree with the officer because they completely acqu of the count count two which is the possession of access devices on november twelfth but the jury finding is really not the issue here it's it's the sentencing judge is finding as to what's in the record in terms of the preponderance of evidence standard so i mean the fact that the jury acquitted her of what their findings are irrelevant aren't going well i don't think it's irrelevant i definitely think it's a factor the the court should look at to determine in addition to what the district court ruled were the actual relevant conduct facts that go towards her actions on november twelfth and there aren't anything in the record here it seems to made that what we have to look at is whether the record so that the evidence setting aside the jury's determination the evidence in the record supports the district court's finding right yes which i don't believe there is and so the jury whatever the jury decided really doesn't have anything to do with that doesn't it it's just we have to look at the record and see if it supports a finding by a preponderance  agreed with the jury also as was essentially part of listening to that record and i think that it supports my position that there isn't anything in the record that's the court identified that goes towards what she did her conduct specifically on november twelfth it is a mere presence situation for november twelfth these items are merely found in her house there's no statements there's nothing that attributes her to actual conduct on november twelfth additionally judges if i can raise the issue of sufficiency on the aggravated identity theft count the court has did over review here and the government had to prove that she knowingly possessed or used those two identities that were found and stolen on january seventh that she knew they were of another person and that she did it during in relation to some other felony the timeline for january very critical here so if i can briefly the incidents take place the or the the theft of these identities that we're talking about the two people mr of row take place between seven thirty and eight thirty am on january seventh the car comes back to the house where miss matri is staying at about eight thirty the detective sees the car come back to drivers of the two people in the car mr smith and mr put go in through the back of the house so that they can't be seen by miss major who then comes out through the front of the house a few moments later and gets in the car with her twelve year old son and takes him to school she's gone from eight thirty to about ten ten in the morning she comes back and goes in the house and is in the house for about twenty minutes and then the detective see them all leave together at ten thirty in the morning the time line is when they go to the dumpster yes this is when they go to the dumpster the items that are shoe it's a great picture but i don't have it here you have to flip the shoe upside down and zip the material the fabric that's covering the shoe and in the heel of the shoe the giant platform heel you'll see a hollow space and in there there's a in the same house as these identities for about maybe fifteen minutes before she leaves and maybe fifteen minutes after she comes back she drives her cohorts to the dumpster to dispose of purse and a stolen license plate right there she does drive them but there's no evidence that was presented here that she knew what was being discarded at the dumpster there's no evidence that she knows of these two particular individuals and who they are and that they were don't think that there is circumstantial evidence that when she takes the two guys to a dumpster where they there are these items in the dumpster that she's you could reasonably  r that she knows why why they're going to a dumpster well if one could infer that is did she know that there's some something connected to a crime that they're trying to get rid of it i think that's a reasonable inference but to specifically and for the identities of these two individuals which is what she's charged with the aggregate any i don't think there's any facts to support that you have to the government have to show that she knew that these two folks who are the facts the timeline is critical here that these were taken in the morning and she's out of the house almost that entire time and where they are placed and mr smith who testified said that she knew nothing of this he hid them from her and in fact he hid them as soon as he came back and she left the police when they came in they came back into the house with her so there's really only about fifteen minutes on each side of that morning where she leaves where she would have at any opportunity even know about this and there's really no evidence in the record that supports it i think that it's important looking at florence figaro that the court look at the fact that she needs to know that these are also real people  there's nothing in the record that supports anything like that in fact there's nothing in the record that even supports she saw held possessed anything these two particular individual identities doesn't this go to the sort of the heart of the deliberate and ignorance charge amine didn't the court i mean i know you're focusing very narrowly on these facts as part of your argument but in reality the court looked beyond that sort of conduct in the days leading up to the way she drove from the house i mean isn't that sort of the basis that the district court relied on in providing that that what i call the ostrich charge well i think the deliberate ignorance charge goes to the fact in the court said it which is that when she is denying knowing that  what's going on in the court felt that it was appropriate to give the deliberate ignorance charge in response to that that's actually in the record i think that the jury had a lot of circumstantial evidence of different things happening and they did it disregarded some of it because they acquitted on one of the counts i think it's important to look specifically for these aggravated identity thout and figure out what are the elements of one of the facts a go to it the timeline as i said is pretty critically important on january seventh so dry in the courts and attention to that timeline  instructed and could have convicted on an alternative sufficient theory of actual knowledge and we have that here well i think that what happened here though is that they i think if the court left it as to actual knowledge we wouldn't really have that issue because essentially that was the government's theory was actual knowledge that look at how much evidence there is look at all these purses look at these credit cards she she had to know because it was all over the place i think when you add in the deliber ignorance it lowers the value of knowledge not as to just the conspiracy but also as to the aggravated identity theft which at two years to her sentence and as i said that timeline is very specific and those elements are very specific other thing before you sit down did you have the court reporter transcribed the jury instructions so they're in the record i would be on the record for a review i'm c j appointed and so i'm very cautious with the court's money and that wasn't the issue where they read right the issue was was it properly given in the first place and those motions and that argument was in the record that we added as our p is answered the question of how you're going to address the deliberate ignorance instruction because my first instinct was i don't see how you could get behind the fact that he didn't order the oral charge to the jury but if the sole issue is whether or not if we all instruction was given and if the sole issue is whether the instruction was properly given i guess you would have to ignore the fact that he didn't order the charge you don't i mean you agree it was given now i think the record is clear that the deliberate ignorance instruction was given you know it's interesting here that the it was the defendant who triggered the giving of the deliberate ignorance instruction the government didn't ask for  it she put on a witness that said co defendant smith her boyfriend he said that she was totally unaware of everything that was in that in the house and i understand that that evidence went to you and he stayed the give it because the court said you know you put on this witness that said that you don't know anything about it and yet because there was the sheer volume of the stolen items in the house and the fact that many of them at least on january seventh two thousand and fifteen were in plain view all throughout the apartment the district judge even said you'd have to have been wearing a blindfold not to know that that stuff was there and i think that the whole idea of the blindfold is what made the judge think that the ostrich instruction the judge hall called it i've never heard that before like it was appropriate and as to let me just give a little bit of more texture to the sufficiency argument on the aggravated identity theft this is a small house that's clear from the record there's no way anybody goes in there without anybody else in the house knowing that you're coming into the house  defendant willie smith and his codefendant friend darryl pugh come back when the chrysler two hundred after engaging in a lease three smash and grab robbers that morning they come back to the house she's darryl pugh walks into the house holding a black satchel with all kinds of stolen stuff in it from that morning and she is there when he gets there and as soon as they show up she goes and gets into the burglary car drives it away goes through pylons on i ninety five to escape what she knows is the surveillance that's been following her for more than a month and the jury convicted her of being a part of the conspiracy so she knows that they're stealing these things from real people these purses that she's getting that her boyfriend claims are gifts she knows that they come from real people now as to the specific people whose identities were charged in count eight and nine the aggravated identity charges lisa sure ron's purse was in plain view on the couch when they when the police came in to do their search on january seventh two thousand and fifteen lisa's sure vons driver's license wasn't in that purse it was in side the zipper cushion of the chair now only persones visa credit card was inside the chair also and her purse was the one that the defendant took to the family dollar store and threw in the dumpster there's no reason that she did that other than to dispose of evidence of a crime because she knew that that was a real person and the circumstantial evidence to shows that she knew that those stolen items were in that chair or the fact that there was a gun in that chair as well three fifty seven ruger the ammunition for that gun was in the defendant's underwear drawer now the her codefendant willie smith said you know the cops must have put it there because it wasn't there you know originally but she pled guilty the government in the rebuttal case put a conviction on that show that she pled guilty to possessing that very ammunition on that very day so it was in her drawer she knew it it fit the gun that was in the chair so she knew the gun was in the chair she knew that the gun was next to these stolen identifications she knew that they were real people ask you a question to refresh my memory i have looked at the indictment in this case and i just can't remember did you all specially charge her with aiding and abetting or i mean was that in the believe that the the two substantive was curious she was a principal in this year are we believe that that's what the evidence has shown with respect to the last amount i think it's important to remind the court here that this argument about the defendant being acquitted of the items that were stolen november twelfth two thousand and fourteen and therefore those items should have been considered sensing for he abandoned that argument he made it in the district court but he didn't argue that in his initial appeal that's why i didn't respond to it in my brief because he didn't raise it in fact he conceded that some of the items that were taken on november twelfth two thousand and fourteen he said not all of those were access devices so he conceded that those devices were being should be considered by the district court but that not all of them he resurrected the acquitted conduct argument in his reply brief and by virtue of his recently filed what i think was supposed to be a notice of supplemental authority which was the one b one point three relevant conda so and i hesitate to cite cases on this but i think it's clear from what judge pryor said it's so old law in this circuit that acquitted in one charge misconduct is properly considered by the district court and sentencing is as relevant conduct in every circuit i don't know but i'll take your word for it  n the thing about the loss amount that i wanted to get to is the driver's licenses and i'm not sure that i should be going there because i don't think that he's raised here in oral argument i will say though that that should be considered under a planner standard because he raised it for the first time on appeal and this court would be an access device i mean that the statute says that it is that if it's a card that can be used in conjunction with another access device so let's say a credit card to obtain money goods services or any other thing of value or that can be used to initiate a transfer of funds and it it's an access device and you know i i don't know about your experience but i think it's common human experience and and the united states that frequently when you use some time like a credit card a merchant will want to see your driver's license to  absolutely on the only thing i want to add is that i think it goes a little bit further than that i under ten twenty nine you want a definition of an access device it says specifically a personal identification number and that is what this court used in right to say that source to curate a numbers unequivocally access devices because under the statute they reflected personal identification numbers it's not just the fact that a driver's license could be used in conjunction with another access device to obtain money or services the fact that at least florida driver's licenses which are really the only ones that i'm familiar with intimately have a personal identification number on and that's what makes them an access device doesn't matter whether it's a standalone access device or not but in that sense driver's licenses are no different and source security numbers so it seems to me that if you wanted to reach the merits of this on driver's licenses just to back up a little bit right before i answer your question the government you know in presenting its case at sentencing considered all of the personal identifying information that was seized in this case more than fifteen hundred items as access devices i have whatever the merits of that position and i'm not saying that i put position wrong i'm just saying that i took a more conservative approach on appeals i only used right to the step because right establishes that credit cards and debit cards are unquestionably access devices it or not and that got you to the fifteen hundred they got that got you to the fifteen hundred without relying on the gift card no ma'am there were only thirty eight gift cards so you can throw those out if you want you don't have to look at the cards reason why i added those is because they have merchant account numbers on them and right says that merchant account numbers are accessed devices i'm looking at the statute if it's a card that can be used to obtain goods it's an access device right yes or and are talking about thirty eight gift cards like you can call them store cards value cards reward cards they're cards from kohl's j c penney autozone dunkin donuts like i say there's only thirty eight of them what gets the government over the limit on the number of cards it is the driver's licenses because there's seven hundred sixty credit and debit cards there's one hundred one thousand so security numbers but without the hundred seventy four driver's licenses we don't meet the number of eleven hundred one access devices like say with or without the gift cards the gift cards there's only thirty eight i don't matter we need eleven hundred one cards because if you multiply that by five hundred you get five hundred fifty thousand  and five hundred dollars and that's the range that the court found so we need the driver's licenses and like to say it seems to me that this is a plain air argument but if you want to go to the merits and we stand on right and if the court has no more further questions i thank you for your time so if if as the government says that you had to wear a blindfold not to see the things in this room in this house then why go with a willful blindness instruction which lowers the standard and creates this whole problem w explained that what provoked was that witness is that right what provoked that is that the courts who is ponting said this is what we should do i think the defendant putting on a witness isn't the issue the issue all along throughout the trial or even prior to that witness was the question of knowledge so that was not a new thing that was raised at that last at the eleventh hour at the defense case it was through the crosses of all of the the police officers the fact that they're saying that these things were all over the house first of all to be clear we're talking about on january seventh not on the twelfth is whether the officers say we find these in various places  but more importantly that lower standard the jury applies it to all the different counts including the aggravated identity theft including the the actual possession of access devices on on the seventh of january as to the surveillance and the fact that government saying well she knows she's under surveillance i don't think that is something that is is proven anywhere but even if one assumes that she that they're correct in that the fact that she might know she's under surveillance doesn't as they say automatically go to the fact that she knows these are real people for the aggravated id theft counts which is the only thing i heard here and the fact that she drove these folks to the  dumpster again as i said earlier i don't think that goes to the issue of does she know that these are real people she was charged with the exact same counts as her codefendant so she was hard for the actual possession of in the indictment she is charged with the actual possession of fifteen or more axis devices in two of the counts one of those counts she was acquitted in the other count she was convicted the issue of driver's license i don't think that the i think that the argument i made judge is that there is a lot there are a lot of items a numerated ten twenty nine and this isn't one of them driver's license are not included in there it is there a lot of other things are numerated in there very specifically but a driver's license so what ends up happening qualify well i think that one would have to make the argument first of all that a driver's license on it's own could get you something so the question if it has the personal identifying information i think  would count would underwrite security number counts right well these these are yes these items in conjunction with if you have my credit card and that but if you just have my driver's license or if you just have my social i don't know that that should count and i definitely think that even if you just have my driver if you have my driver's license and a credit card then the other argument problem there is you're now double counting for that same individual this is really we're going on on the on the formula because none of there's no evidence anything was ever used here but if the congress wanted to specify driver's license they could have easily out a driver's license a very common thing this is not some new invention does have been around for a long time but it's not listed but they do but they have a general definition and even have a list but but the statute says that that if you have a card a driver's license is a card is and then they can be used in conjunction with another access device to obtain money goods services or anything about you i don't know that i would agree with the court that you even ever had a sure that has a really answer the question i had have you never in your experience with merchants had them ask for a driver's license yes several years ago i'm sure i have but the getting out when they are saying card though is that i don't know that driver's license is what we mean by card here card are i believe referring to cards that can get you resources money where the fact that a driver's license driver's license could have been on paper years ago as opposed to something hard and laminated i think that that term is somewhat misleading here the real question is why did congress not specifically say driver's license and i think that if they wanted to they could have and they still could but they don't have that here based upon that argument isn't aren't you saying right was w rongfully decided on the issue so security numbers because i mean so security numbers are not specifically enumerated in that language well i think a social security number is different in that for one to be able to even get a bank account or credit cards or whatever you're often asked for your social because they check your credit i don't think that's the same with a driver's license you're not checking your credit with a driver's license that's not the reasoning of right understood but i believe that the the the the rationale of