good morning honors a man please the court granted a sample on behalf of monica hernandez there are principally two issues for the court's consideration in this case one is this with respect to the three mail fraud convictions that mr hernande was convicted of we argue that the court should reverse those male prokofiev convictions because the district court determined that there had been no lowing in this case but at the same time gave an instruction to the states versus o'connor specifically described the lowing theory as actions that make detection or apprehension less unlikely at issue in o'connor was whether there were telephone calls that have been made by the defendant after fraudulent intended to lall his victims into a false sense of security this making apprehension less likely the government has argued in response in their response brief that that avoiding detection theory is proper and under the macgowan decision and we believe that mcgowan is is st off actually not contrary to our argument that flowing in avoiding detection are one in the same in fact mcgowan when we look at it closely it's also a telephone case similar to a connor where there were eighteen calls   made and it refers to a conner and mcgowan affirmed the convictions there holding that the telephone calls were quote designed by mcgowan's it's too low let me who was the victim in that case into a false sense of security so because lowing and avoiding detection or this court's precedents are one in the same the district court found that there was no lowing in this case and the government the parties actually agree with that we believe that her conviction should be reversed on that basis turning to the restitution issue the district court was requested both in writing and at the sensing hearing to establish the specific payment schedule from his those while she was incarcerated the judgment of the district court the written judgment specifically says that unless the court has expressed sleep ordered otherwise payment of criminal monocle monetary penalties is due during court schedule said that the amount was due upon the commencement of supervised release which is after imprisonment isn't that specifically ordering otherwise  during the colloquy of the oral sentence the court refused to set a schedule for within the bureaucracy it's our position our that is in fact the problem because we don't believe that saying that payment should commence while supervised release addresses the specific direction the judgement says unless it says specifically otherwise here that payment is not to happen while in prison then that means by virtue that that payment is to be gained in prison but when imposing the oral sentence and in that judgment a commitment order the court specifically said that the payments were not due in till the commencement of supervised release which means they were due when she was incarcerated right and so how do you get around that being a order from the court expressly otherwise because the other language we believe in that in the judgment and that that alludes to the fact that the payments would begin and once you're in your presence custody what in the judgment suggest that they would be made once she was incarcerated the court specifically refused to say that they were too jarring incarceration how do you get around that when the even if there were something inconsistent in the j and c the oral pronouncement of sentences what controls it is your honor it is my understanding is that the bureau of prisons when when they receive these judgments and they see that pro forma language is in the judgment that when there's an absent payment schedule that they take it upon court does not have any further questions i reserve the balance of my time they discussed payments and they laid out what this trust promised to do for the victims the package also contained the receipts and of their balance invoices these laid out the total amount owed by the victim the payments that the victims already made and the balance owed by the victim these receive not only memorialized the payments but they also facilitated future payments by the victims this was the very goal of this project and skip the membership package also included refund policies which informed members that in the event that washington national trust would not acquire or reduce the members debt they would get their money back the refund policies also laid out for the members that this process would take between ninety and one hundred and twenty days these fraudulent documents allow the defendant and her counterparts to continue just to deceive members into thinking that this trust was legitimate they also facilitated future payments because they gave members the impression that if the trust didn't work they were going to get their money back now the defendant has suggested that the district court's rejecting a lowing theory certainly lowing instruction shows that the evidence was insufficient and that simply incorrect lowing and avoiding detection are separate theory and under macgowan which does cite to o'connor the theories are treated separately as alternatives lawley victims into a false sense of security is most often applied or utilized in cases where the goal of the scheme has been match where the money has been obtained and defendants have continued to take action to make victims feel that sense detection the jury was properly instructed on the elements of mail fraud and properly instructed that mailings can be in furtherance of a scheme to defraud when they assist in avoiding detect just briefly on the nd issue the district court did properly omit arrest situation payment schedule during the defendant's term of imprisonment and as your honor noted there is express language in the judgment that unless expressly ordered otherwise the payments must be made during a term of imprisonment but the order does expressly state otherwise it is clear that the defendant must make a lump sum payment and the balance is due upon commencement of supervised release in other words at the end of her term of imprisonment and i also think it's worth noting that the district court did not check the boxes that would have allowed for instalment peanuts while the def for a directed verdict at the conclusion where the district court found that that a reasonable jury could find that the success of the scheme depended on being to continue a good relationship with its members and avoiding detection for as long as possible and we believe that the that that really the district court was speaking of the same thing when i was talking about lowering unbelievability in detection as being one the same but at the same time recognizing that the government had not met its burden on the so called