reasonable doubt that khatab she knew the existence of the scheme to defraud and knowingly joined and participated in it and i want to make clear at the outset then when i refer to khatab she i'm talking about my client should his brother rush  b she was involved for three months of the conspiracy his involvement was limited to helping his brother defend a total of seven charge backs the evidence a trial show that multiple individuals including an attorney and a merchant card processing company i did defended charge backs for a rush to top she's business or offered to defend charge backs todd she made no sales calls no one ever saw him on the sales floor because he was three thousand miles away in california the government's main witness sinclair testified that he did not believe that could todd she knew the extent of his brother's pitches witness after witness who testified at trial barely mentioned him at all and when they did it was only in connection with the charge backs he was paid a total of seventeen thousand dollars for his participation in this in this in this role and for his role against a total loss amount between one million five hundred thousand and three million five  dollars and certainly no witness testified the khatab she was aware that his brother's business was defrauding people at the same time there was considerable evidence that could top she believed that his brother's business was legitimate sinclair the government's main cooperating witness told law enforcement that more than half of the customers were happy joanne le morte called american express after originally finally filing a complaint and said put the down so it isn't up to us to say whether the there was guilt beyond a reasonable doubt the question of whether there is enough evidence to get you were dur bracy let me take those in order with respect to the comment show legitimacy that was a comment that that could top she made to his brother that he would have made if the business was actually legitimate in the same way that they're having a conversation about setting up email accounts an eight hundred dollars numbers and could top she says to his brother how many hours a month do you think people are going to be using the eight hundred number up to a one thousand you don't say things like that if you competing you're not classically a jury question respectfully judge walker i'm not drawing an inference i'm pointing to the trial testimony and to the trial exhibits where they're having an exchange about eight hundred numbers and he's not going to ask his brother are people going to be using the eight hundred numbers up to a one thousand dollars an excuse me up to a one thousand hours a month if you know is that it's just a big fraud now is it also so that the not transfer the proceeds between their bank of america account because bank of america with also shut them down you also suggested guilty knowledge that the jury might have been a title to rely on your honor this is a telemarketing business is the court was aware and telemarketing businesses had many complaints the fact that there were complaints would have alerted him to the fact that this was a fraud and again what was missing was a witness to say that he knew this was a fraud remember he came in at the tail end of this business he had there was no witness whether it was his brother worked for or sinclair who said he knew we told him that this was  suspicious statement but it is the law of this circuit that suspicious circumstances are not enough to sustain a conspiracy conviction and when he sitting on a couch in handcuffs and federal agents are going through his apartment asking questions about let me add some of some of the facts here and again i'm not drawing inferences when when i rely on facts and we put this in our our appendix with respect to charlene foster yes yes you're on  well there was ample evidence that could top she would have believed that the business was legitimate there were laptop computers that were provided to customers that were business plans that were provided to customers there were contracts that were discussed there were sales call monitors and rd party services that provided services to those to those customers and so against that backdrop it would have been reasonable for khatab she to believe that this was a legitimate business and in the absence of a representation by some witness that he knew that this was a fraud the evidence was insufficient to support the conviction just one follow up question in addition to the various customer complaints there were two letters that were received by your client from the county of to say new jersey department of public safety that was investigating allegations of fraud against the company and those and there were details spelled out honor if you look at those letters it specifically says we recognize that there are differing views of how these things happened there was not an investigation of fraud there was a complaint by a customer and this was a telemarketing business and the reason why credit card companies and twenty five percent was because telemarketing companies had a lot of complaints so it's not a crime for him to believe that there were complaints it's a crime if he knows that the business is defrauding people that the court below made one is to essentially correlate in a sense the defendant playing the central role in the operation as evidence that he far less significant role than my client did but that's not true is a matter of fact there were only two other salesmen mentioned as possibly having a lesser role and the government itself acknowledged that the three cheers or four chairs of appointment setters the lesser will and the application that make clear in order to be counted as a participant in the sense the people involved have to be aware of the counsel below did this but is this a situation where you find the district judge not making prine doing that is important to the simplicity of the decision avoid this kind of a stay yes i agree with that and i do understand the necessity to preserve precisely for the reasons you mentioned to the court as an opportunity to fix arguments in his papers and the the the judge dismissed some of his arguments without any analysis whatsoever like the portion of a restitution and i think that when you have a situation that the defendant is clearly was not a mover or shaker by any means in this role and he started late we don't know when he learned it was fraudulent he made very little money which he mostly lost and then some by the district court sentenced to fifty two so i think the district court was taking into account many of these things which you were saying even though it didn't find that he was fit th matter because you start from what you start i'm suggesting that some of the factors which you are suggesting that mitigated this your client's culpability  about a was only verses how about how anyone fit in with the broader scheme and he participated for a very brief while i was involved in a one but there was a much larger scheme and other entities to if you could  case and if your honour's were to look at the jury instructions they would as lief you as as important trucks in the conspiracy cases generally specifically health insurance that member of the conspiracy in order to be considered a member of the conspiracy with the requisite knowledge doesn't have to know every other participant doesn't have to know the full extent and scope but obviously has to know that i'm ok i'm a little puzzled so i'm a little puzzled by the pla argue then let's argue if the evidence what is evidence of the basis of which drury could find guilt beyond a reasonable doubt because freeland describes false earnings promises that were not kept and those are at the several times supplemental appendix pages five dollars eleven cents and these letters weren't simply sitting in a pile of on open mail and mr resident himself drafted responses to these complaints raising the character rising them as proof one hundred percent paul and listing himself as a point of contact for handling the complaints and  is defended mr pataki warns his brother about bank accounts being closed as a supplement to appendix thirty he suggested tactics to avoid a further detection by other banks that they were using to perpetrate the fraud that's also supplemental appendix hester's the e mails and text messages also show that mr fitz hachi was necessarily aware of several false representation made to banks by their merchant processor in order on their behalf in order to keep their accounts open despite the volume of fraud and refund claims that were coming in and that's a supplement stop the search from proceed as that law enforcement agency wondered taking it and that's a supplement to appendix ninety three dollars on that same page you will find that the defendant falsely cl thank your honor mistral women's mitigating role adjustment was well supported by the record a sorry to quick explanation to impose a mitigating role in justin was well supported by the record and entirely within the challenging the specific findings factual findings made by the district court so not only with those arguments that were just made be reviewed for play never but they actually are waved in so far as that argument may not have been made  role is of course reviewed at the very least for clearer and the sport but only reversed if there was an abuse of discretion several of the factors set forth in the guideline commentary are plainly in support of  the government's position and the district court's decision that all women are in it is not a minor participant st the nature and extent of a women's participation in the commission of the criminal activity his participation was hours a week was not a one off this is not even a week off or a year and this was a two year long participation he also solicited funds under false pretenses on these calls from numerous victims often on multiple occasions each victim whether all women understood the nd factor that i would ask the court to look at is whether women understood the scope and structure of the criminal activity honor i have not performed a survey of the case on this point because frankly we don't think that the the argument rises or falls on the standard of review unlike maybe a case where the issues are comedic to continue discussing one or two more of the additional doctors or if you were talking about his understanding of yes your honor and he also understood just to pick up right left off he also heard others engaging in the same type of activity at their telemarketing for there was evidence that there were many other people some of whom were charged in the case and pled guilty before trial and some of whom were not charged who participated in the same type of activity day in day out making giving very similar lies to different victims as part of this also women understood that there seem involved selling victims who have been victimized by other related scenes earlier  time the rd factor that weighs heavily in favor of a finding no mitigating role adjustment is whether a women stood to benefit from the criminal activity defense counsel tried to downplay the amount of money he made but let's be clear he  hundred thousand dollars from the scene and if you're honest review the trial transcript and read some of the victim testimony it is heartbreaking it's heartbreaking to hear how elderly people were taken advantage of and liquidated in some cases their life savings their retirement accounts took out additional credit cards that were immediately maxed out that they could not afford based on the false promises that a women and others were getting to to to try to downplay the amount of money that he personally made and say well if you spend it on drugs anyway well that's money that's coming out of real individual victims pockets and we would argue that over one hundred thousand dollars in benefit do you know offhand i don't i don't have the number off the top of my head but it did vary depending on the tenure of the sales person with the organization and their volume of sales etc but it could be  my recollection stand somewhere in the ten to fifteen percent range depending on the particular instance i see ok thank you your honor i would like to just make thirty three points briefly the st is with respect to the letter that was sent to the county of passaic i did locate that in the record it indicates to a one the office is in recei complaint filed against you by the above customer please be advised that this office investigates cases and evidence and fraud deceit or misrepresentation and then it says this department recognizes that situations such as this arise from differing viewpoints and interpretations of the facts for this reason we do not prejudge any complaint etc etc and so that was not the same as receiving proof that this that there was a fraud going on one it was a complaint by a customer two very different things with respect to the representation by the government that it's made throughout this case that that could top she somehow tried to interfere with the search that's simply not so and i would direct the court to page essay ninety three dollars the the statement by the investigating researching officer was that khatab she seemed agitated and told us to cease immediately searching his apartment and that he wanted to call an attorney that's not the same as interfering with the search that somebody who's trying to avail himself of his right to counsel and is concerned that his his home is being searched improperly finally with respect to the exchanges about about the differing bank accounts and  transferring money between the accounts the issue was that a raasch like sinclair was on in effect this blacklist and the credit card companies would not permit them to do business and so the work around that they came up with which i'm not suggesting is the greatest thing in the world but it is legal at least is to put put it in somebody else's name put the credit card processing account in somebody else's name and that's what they did and throughout this process again to go back to my original argument there were other people who were defending chargeback that's all that could touch she did it was a lawyer who was defending charge backs and then there was heidi brown i believe her name was who who  said there's lots of red flags going off but if you want to hire my company to help us defend the charge backs please let us know and so against that context it was no way for khatab she to know that these