but we've not directly attacked those who are certainly not fact those on cities evidence because that would not attack them but it's another thing altogether to say that he had conspired and that there was an agreement between he and these other people too there was a spiritual agreement there was no direct evidence of the spiritual agreement and all the circumstantial evidence i point to that would have profits that he didn't get any the money he spends to pursue these letters of credit and it's all his money to the collateral after  b c one c because the loss exceeded five million dollars and was less than ten million dollars there was a two level increase because of a finding by the district court that there was more than minimal planning there was a two level increase excuse me a four level increase for the role in the offense and being a leader organizer there was a two level increase for abuse of the position of trust and there was to the increased restructuring of justice that comes up with an adjusted that's level of thirty or so that increased from bas it looks like i'm just going to just open my brief to page eighteen like count two we have mr alvin bushman there's apparently a one million one hundred thousand dollar investment but there's one hundred fifty thousand dollars on one day there's one hundred thousand on another day i mean the jury would have needed to basically file is a tally it up in order to make a finding beyond a reasonable doubt as to the amount of loss i mean maybe he was mistaken maybe the jury thought he was partially correct i mean that's all requiring speculation ahead of me but basically there is no amount of loss in order to find the defendant guilty of that of theft the amount of loss was never determined or found by the jury in order to find him guilty the jury would never have had to make a determination as to the amount of loss suffered by the victim in order to convict and so therefore the amount of law it was not part necessary prerequisite to the jury determination of guilt so it was not a necessary element of the offense it was not necessarily had to have been found by the jury i mean a jury could have found mr bushman and i don't mean to pick on mr was just my brief his openness to this page mr bushman couldn't they find one hundred thousand maybe they thought he was mistaken as one hundred fifty or maybe they didn't think he was certain enough i mean all that has to be found by a jury beyond a reasonable doubt and i think that's where the problem but in order to return a verdict of guilty the finding with was not contained in the furtak this was the finding was not contained in the verdict we don't know if the jury found that amount true and how much do they find that they've lost and a lot of the victims as i indicated the amounts of losses they were not one time investments there were multiple investments over a period of time ten thousand here one hundred thousand there fifty thousand there is essentially the way it went and the jury would have had to make a determination and basically tally up the amounts of each of those losses b i understand under the court in a lot of these cases there furring ruling deferring judgment until the u s supreme court decides booker and fanfan however in this particular case the question is what is mr cross looking at basically on the jury's verdict it's our position he's looking the greater of two and you have the two groups thirty plus two and i think that's essentially how it worked out but if we let's say we put aside the as there were six months of argument with regard to the fraud counts what are we going to do with the money laundering counts then you have twenty nine but the two million the five million dollar loss was not found by the jury is not submitted to the jury so there's no determination as to loss so then you have a base offense levels twenty three for the base offense level twenty three mr cross would be looking at a  know hopefully any day if it isn't if there's a great but i mean if it's going to go on for six to twelve months mr cross to be ready for a halfway house in the very near future so either way i think the errors are significant and i believe that under am only in the immediate  not engaged in factoring was not providing the insurance that it had promised that it was a ponzi scheme and that it was buying these worthless letters of credit in fact mr de lay from says that there was no explicit agreement but in fact  one of the few cases where there actually was a written agreement and that was the agreement selling cross financial services to mr fox because that agreement itself contemplated that the purchase price which came out to about one point six million dollars is not going to be paid by mr it was going to be paid using misappropriated investor funds and that's exactly what happened so right from the start you have mr fox knowingly participating in a fraud and then going forward on a forward basis knowingly participating in every aspect of that fraud which included false representations and promises to the investors the misapplication of investor funds mr fox far exceeded mr krause both in the amount of money that he raised from investors under false names under false representations and the amount of money of investment and amount of investor funds that he misappropriated and spent for his personal use was somewhere around five million dollars he also used investor funds misappropriate investor funds to these are examples they were they were government exhibits these are examples of the lender agreement and promissory note issued under mr fox's tenure and in fact these are signed by mr fox dated march fourteenth of one nine hundred ninety four relate to one of the stuck in a reference to something referred to as faint guaranteed as part of the protection of the lender funds and then the promissary note which is the government's excerpts of record five ninety exact same document that was used by mr cross when he ran the company the other interesting reference i think your honor is the government's excerpt of record at seven fifty six and this is a defense exhibit and it's one of these secret five letters having to do with the worthless letters of credit mr cross signed him and then when mr fox took over he signed them as well and what these letters of credit provided was that  letter of credit the beneficiary in this case process and answer services would have to deposit the face amount two million dollars with the applicant so you couldn't get your money unless you gave the applicant the money so that he could give it back  concerns regarding the for the severance issue and first i think that this is not an issue that's ripe for decision on appeal that there would be matters material matters that could be developed back in the extent there was any and and there really it's really not clear what what that was and what the nature of was what the extent of was that the extent there was any antigun isn't really didn't even develop until the cross examination of mr fox and mr cross and it's only then that they began really pointing the fingers at each other through most of the guards through the government's case in chief even before that starting with the opening statements through the government's case in chief and then beginning into the defense case it was it seemed  like a coordinated defense effort where both mr cross and mr fox were trying to point the finger at their coconspirators back in or siemens coloe and others it was only during the cross examination that mr fox started pointing the finger at mr cross and mr and vice versa as to the sale of the company and then what what mr cross provided to mr fox and in the way of valuable assets and the like and then it it really became if there was a conflict it became it became one during the closing arguments of mr process and mr fox  crossness council called mr fox in effect a liar and begins to think that's crack you're on but again that was only during the that was only during the closing you really start and it's only during that cross examination that you first begin to see the antagonism developing so i think that there is it's very likely and i think that if you examine the record as i'm sure this court already has or will from beginning to end you see that there was a coordinated effort at mr cross mr fox and mr siemens were all set to go to counsel go to trial together when mr siemens pled guilty i believe it was the day before the day actually i think it was the day of jury selection  out because he first he his conduct was related to the letter of credit scheme principally and second there were issues with his counsel he changed counsel about half a dozen times so it wasn't so much that there was a basis for a severance in under the law as it was required as a practical matter that's coming as fox didn't want his counsel either there well nobody wanted their counsel there at all their counsel was appointed and nobody wanted their new counsel when they got it and i think the record shows that both mr callahan and ms berry did an exceptional job on behalf of both their clients i think the  the military and ms berry fought because we followed her every step of the way government's case in chief defense case in chief rebuttal case and she was successful keeping that out so i think they've both got extremely effective assistance of counsel as as are fairly routine basis in cases like this and that was something that mr fox executed along with ms berry and was we were not involved in our process but but even if you put aside that written waiver right before right during the deliberations or what once deliberations began judge marshall took a full and complete waiver from both mr fox mr frost as to their presence as the conference to settle jury instructions trial or the presentation of evidence and oftentimes during conferences to settle exhibits as the court knows parties will ask the court to receive into evidence exhibits and that's essentially what happened here but at the beginning of the conference on the may eighteenth conference ms very invited judge marshall and that mr fox is not present because pursuant to his waiver so the test here being did he voluntarily after himself i think the government's point is simply that everything in the record indicates that mr fox had no interest in being at that may eighteenth conference certainly had every opportunity to and appears from the record that he was even present in the courthouse there was a break of a half hour as the parties and the parties fox is going to remain in the court house and judge marshall saying fine then i'll make you responsible to to make sure that he's present if if necessary or if he wants to be so as far as not to obtain a piece of the action but to have something a piece of paper that he could show either investors or the f t c as backing up these investments and that's why he changed the  agreement in the promissory note to sneak in that that language about of a reference to a bank guarantee and then in the f c c action that's exactly what he told the f t c during his deposition well this was fully supported by these bank guarantees the fact that he helped himself to plenty of the investor money this this this company was a cash cow maybe an illegal cash cow but he helped himself to more almost five million dollars in investor funds to buy a boat are more like more in the range of a yacht i guess a three hundred fifty thousand an airplane fund his son's skateboard shopping cetera et cetera so he was making plenty of money from the underlying scheme i think his concern was to have some basis to  some basis to claim that there was protection to these investors and that it wasn't just a ponzi scheme but if you're honest five million dollars so the defendant certainly knew they're going to be defending against a case where the amount of money laundering was was quite substantial here the particular crime of money laundering that is alleged in this case and was proven to the jury what international money laundering i paragraph forty six talks about the fact that the transfer to switzerland was a wire transfer that's a single unit and it's two hundred sixty six thousand six hundred six dollars so necessary to the jury's finding of when the defendant was amounts up you get two million three hundred eighty six dollars and six two million three hundred eighty six thousand six hundred six dollars in other words it's more than two million dollars that's the six level enhancement that the judge possible under castro to wait for booker fanfan and just wait to see what the rules are what we're going all the viewing with i will advise the court that mr cross went into custody a little bit earlier than mr fox he the trial if the court follows the government's a suggestion here that would mean the offense level at least of twenty nine offense of the twenty nine is eighty seven to one hundred eight months so clearly we would have a good amount of time until the issue would even begin to appear and be necessary like it would be in character with regard to the issue of the other allegations i would point out as we did in our brief that there's a bunch of things we're not objected to nobody thought they were disputing it seems as though the thrust of blakely is really that if things are in dispute they need to go to the jury where you have a whole bunch of things here that were not in dispute they were not objected to before million dollars there's nothing here that really would make a difference it would be fair to he would be it would be unfair i think to the government if the court were to open up the entire sentencing when there were things that were disputed