emanating from his plea of guilty to one count of conspiracy to defraud the united states government eighteen u s c section three seventy one after hearing judge potente issued an order which in part prevent them from cooperating with the authorities in reading this all statement the court cannot find the scope of the offense of conviction in this case includes the abuse alleged by them it's devoid of any over acts involving abuse towards anyone victim or otherwise to further the conspiracy and accordingly the court concluded their restitution pursuant to the mandatory victims rights act was not appropriate the court however then went on and found restitution was appropriate under the victim and witness protection act it is our position that the definitions of victim in both enact once are identical for purposes of this appeal and that the initial determination should control of the latter determination in looking as to the propriety of whether restitution should be a post this court in the alleged victim was caused by that federal offense the type of damages that are alleged by c c and h m are not normally associated with defrauding the government the indictment alleged in the facts at the plea indicated that mr admitted to arranging a false marriage not even the one involving z c l just one clear your argument you're arguing now that your client that they absolutely do and how do with how you respond in a letter dated september nineteenth two thousand and thirteen defense counsel at the time listed a number of objections that were submitted to the probation department those objections were incorporated in a dent into the pre sentence report at the time of sentencing apparently there was an off the record discussion or something transpired off the record because when judge potente took the bench she inquired whether or not the objections had been waived mr fishman indicated that they had been and was only asking for a guideline sons and then a restitution hearing was set it is my position and i believe the position of defense counsel a that that waiver only apply to the guideline calculations and the bases for that are in terms of what transpired subsequent to that colloquy or discussion between the court the government submitted memoranda indicating that they were victims in fact cited the single case to demonstrate that individuals such as the c and h m could be victims mr morgan on behalf of mr dissolve filed a lengthy memorandum indicating that they were not victims and cited a number of instances as to why they should not be including the bases that are presently argued before my appeal and i think the ultimate determination claims restitution discretionary restitution is inappropriate because the conduct for which the victims seek damages does not form the basis of conviction so with due respect no one reasonably  articular concluded that the state i'm not sure that means you're not having in addition he claims rest discretion to discretionary restitution is inappropriate because the conduct for which the victim seek damages i'm sorry you'll be a victim couldn't sue even though the activity was not one of the elements of the crime is i and i so if you rob a bank and then get away which is you know you don't need to have a getaway in order to be convicted for robbing a bank you run over somebody that would be a victim when i believe in order to be a victim under the statute that individual has entity has to be harmed by the offense of conviction and i just i'm saying you could be harmed by the offens conviction without without having that harm be an element of the conviction or not i'm not sure that one flows from the other i found what teddy was very very specific about that in order she said it was in exactly a long last drive your suggest she says that she couldn't order mandatory restitution under the whatever that statutes called mandatory act but she can more award discretionary restitution under the victim witness protection act and she's clear about why she can't do it she can order the mandatory because it's not an element of the offense but she can order the discretionary because they both sustained harm directly and proximately is the result of his opinion that begs the question as to whether or not those damages alleged here today i was asking about the waiver i was interpret in that language to go to how approximate it is as opposed to whether you're categorically a victim i believe that on the theory that it had already been established that there a victim and we're now looking at damages and you say well this isn't the kind of thing you know it's different if you run somebody down while in the getaway car to use this clear but different example then you know if you took the money and bought a car and then hit somebody then you would say no you know maybe it's a cause but it's not a proximate cause and so you would say that is one the kind of thing where you would allow rick of restitution and his the other  but it doesn't have to do with whether you're defining as a victim or even at the time of the restitution hearing judge between any inquired of mr morgan whether or not the defense was contesting the allegations of m and mr morgan responded oh no we've always contested those allegations so i can't speak for what mr fishman said at the time of sentencing it's unfortunate that something transpired off the record and perhaps was a little bit hyperbolic hyperbolic but the consistent conduct of the fence counsel subsequent to that demonstrates that they always contested and always argued that neither of those individuals were victims and neither of them were harmed by the offense of conviction and in fact contested that they had been abused in part of mr morgan submission in a supplemental  had indicated to the agents that he denied that there was any type of sexual abuse and now years later when they realize that there is a monetary component here they changed their stories dramatically so all of that was before the court and all of that was being hotly contested by defense counsel so in terms of waiver i would say would do respect it didn't occur and i would also ask the court respectfully but rhetorical if what mr fishman said at the time of sentencing somehow waived the issue that there were victims then query why no one including the government either when morgan filed his documentation or when morgan made his arguments to the court did anyone say wait a minute you've waived that they did the contrary they dealt with it substantively and head on as though nothing had been said because with all due respect it's my interpretation and again it's unfortunate that we don't have that off the record discussion on the record but that there is no indication of a waiver that argument has some force but i went and looked at that language not today but recently and it struck me that th e argument by the government could as easily have been taken as we all know that they're a victim but we need to argue about even so whether we're going to whether restitution is appropriate and here it's appropriate for this reason and that reason and the other reason given the punitive and you can say well no what they were arguing what they were arguing was that they were a victim but but but it isn't exactly in those terms it's more in the terms of look at look at how closely related this says given the punitive nature of restitution that right or wrong i'm talking about waiver now still i don't what i'm saying is given the punitive nature of restitution it shouldn't be surmised away and i don't believe that there was a waiver i don't think i understand should be surmised away but you're saying part of the reason that  wasn't way is that the government treated it is as not waived and i'm questioning that i put it the other way with due respect i say that it wasn't a wait and that's why the government treated it as a non waiver rather than because they treated is a non waiver it was an waived i think the conduct of defense counsel was consistent throughout the proceedings below thank you thank you on the record at the sentencing hearing one of the quotes that relates to something that saw that the only thing that the that the sentencing transcript really shows is that at some point prior to the hearing the district court was informed of the waiver because she comes out on the bench and says oh so i understood state that i think her language exactly is any objections have been resolved or waived or withdrawn and defense counsel says that's right your honor all a quote from the record is that all of the issues that were pending before this court have been resolved once from four ninety five of the sentencing what do you do about the argument that subsequent to that there was always argument about whether there was a big you know that's a reference to record number seven seventy nine i believe and it's a confusing document i'm not going to back away from that record it's a record number seventy nine it's that restitution memo and there is a line that says oh they were never victims but your honor is probably had on the best response to that because a page later at four eleven he says exactly this all objections were withdrawn in exchange for a stipulated guideline sentence and so when he says they're not victims i think you're exactly right it's about proximate cause are they  they is there victimization is the harm related anough to the crime that we're going that we're prepared legally to recognize that and that's what was argued at the restitution hearing so even this intervening restitution  admits that all objections were strong which includes objections to them being victims and says that it was in exchange for a stipulated guideline range sentence which i think is referring to the fact that the process is what is preferred then just so we can move on what is preserve is how approximate it is yes which isn't really a way in which it's not proximate isn't that i mean this is not this is not threatening or abusing someone to keep them from from going to the authorities but instead is abusing abusing them by telling them that they'll turn them in right  really different is not it's a little bit of both your honor and i want to answer the more that it's the former the more your case is strong i think yeah it's but it's practically the emphasis of what the really ugly thing that's going on here is that the people are being abuse in the course of covering up the conspiracy right and that was very well laid out the p s r throughout the key s r p paragraphs fourteen fifteen seventeen eighteen and then again guideline was molesting the i don't want to concede that this was preserved because even this if it was kind of mentioned in this one filing wasn't brought up at the restitution hearing the p s r detailed the fact that this was part of the cover up and this was not objected to or contested at the restitution hearing in this court room between whether they were a victim just victim with a b or whether it was connected closely enough because there was an argument in this in this in these filings right at the restitution hearing your honor what happened was the district court said that the prosecutor said we're here to determine the amount the defendant didn't dispute that the defendant actually only kind of quibbled with the qualifications of one of the experts that was there to help determine the amount and they didn't go after the facts in this case not even at the hearing and prior to that at the sentencing the district court said i'm going to set restitution we're having a hearing to determine how much and i want the parties to give me calculations and figures and you can find that at five o two and four ninety eight of the record and the district court justified a guideline range sentence for what the district court felt was in her words for ninety nine horrendous conduct and she said the reason i'm justifying it is because we know that you have to agree to restitution and i'm going to get you out so you can start paying that restitution to the victims that's all in the transcript so there's nothing whatever is off the record there's enough on the record to find waiver here as far as whether they're victims if all that happened is district court and the court room and sit well i understand your objections have been resolved i want out of the world that suggests anything happening off the record it seems much more widely that the judges case managers the lawyers to tell the case manager and the case manager tells the judge or sometimes the call comes directly to the judge's office or sometimes the probation officer communicates with the judge but it doesn't sound like there was anything involving i don't know why one would draw the inference that anything that happened off the record in probably any of the i want to be very clear that i'm not aware of a discussion off the record about the proximity of the i'm just saying you couldn't talk about different things ok and that there is the statement in the record that all these things have been resolved but you were further supporting that buys the dates by saying or they say after that there was discussion of this issue suggesting that it wasn't way and you said no that's a discussion of a different issue and a different issue  it was a discussion of was how closely connected it was but now you're backing off of that and saying oh no the only discussion was how much harm they suffered and not anything about how related it was to the crime  some subsequent to the colloquy that judge givens just referred to was there either motion practice or hearing arguments that went to the connectedness to the crime as opposed answer is that when you look at the record it was about how much harm they suffered and at the restitution hearing the only thing defense counsel did was quibble with the adequacy of the  experts qualifications or estimates as to how what dollar figure to put on that harm the only thing i meant to do and maybe i should have even tried is trying to understand what defense counsel was trying to do with that restitution restitution memo which just have this weird kind of one off id four eleven because that's where he says all objections up and what about you that probably didn't probably have you know there's one thing i want to mention about that your honor said when he says even at that stage that all objections have been withdrawn in exchange for the stipulated guideline range sentance that was the guideline range sentence that everyone agreed to by the time we get to sentencing that reflected the fact that h m n c c were victims of the scheme and what i mean is when you look at the objections that were made and then withdrawn he also objected not just to them being called victims but he objected to two paragraphs paragraphs twenty five and twenty seven which started applying and handsomest of that guideline range one was a plus two for using a minor to cover up one was plus two for obstruction through the abuse right to cover it up and so when when he says well i withdrew all the objections and i'm agreeing to the guideline n h m in order to get that guideline range sentence of twenty seven to thirty three months and so his argument now on appeal that well the only thing i was really withdrawing was an objection to the guideline ran calculations even if we accepted that which the record doesn't support well you withdraw your objection to the guideline calculations which reflects you can't get to that guideline range without agreeing that they were abused in the further into the scheme and so i think that's an important point that but it's just an abstract question just past all the waiver issues and everything so under the law is a little bit would it be coherent to include as a victim somebody who is oppressed or molested or hurt because there is a threat that they will be turned in for that very time that some little like what we would call a victim do i understand it me me repeat back what i think the question is that him is hurt by the defendant to prevent him from going to the authorities about that abuse the defendant threatens to  but i'm asking a different kind of question what if it's i'm using the fact that you committed the crime to extort money from i will go to the authorities and turn you in if you don't give me money that doesn't sound like the person is a victim of the crime that is that you're using the fact that he committed the crime to extort money from me from him that would be a victim of a crime with it if you see if you whether you did it cooperated fully or conspiracy or whatever you both are aware of this crime and both have some sort of part in it and you go to that person and say i'm going to turn you in unless you give me money but the other that's not the normal everybody person's use of because he's he can threaten his mother with getting them both reported that's true the mother however her restitution amounts i should say it was a very modest it was for wages that were withheld when she was made a slave you know because he dangled over a life spent one thousand dollars on you to arrange this now you owe me and so he made her work for free for years so so if the restitution amount had been related to maybe the sexual assault maybe you would be a little tougher but i think here you have more of a single line of reasoning right when you were justifying the restitution for the mother and then him was not a coconspirator he was a minor child and one thing that i had factually incorrect and i apologize that him apparently was already in the country when the marriage fraud occurred it was the other children in lebannon that he was trying to get into the country so any where my brief suggests otherwise that's actually of the timeline there and one thing i wanted to mention and this is if if you were to get to the merits on the of the case my colleague says in his reply will no case involving a three seventy one charge has ever found restitution to apply in this kind of circumstance and that's just distinguish that cases he says will the defendant and singa admitted to some things and that distinguishes what happened here but there are two points i wanted to make as to that your honour's one is that the defendant said in singa and this is that thirteen thirty four of that decision is only that he smuggled the victim in to be made not to be a slave so it's not like he even admitted to criminal conduct in furtherance of the scheme that hurt her and the second point i want to make is that this court's already decided in so speedy that a fact underlying a restitution order or justifying a situation order is not an apprentice style fact it is not one that has to be decided by a jury or admitted by the defendant and that's kind of a premise that my colleague has kind of woven throughout his briefing which is that he the defendant had to have admitted to doing these things in order to be on the hook for it for us to to sion that's just something law and to be sent your honour's have any concerns about the connection between the abuse of age and in the cover up of the offense that was laid out throughout the p s r in all those paragraphs of already mentioned and he didn't if i could respond briefly to just your been your concern or interpretation of what transpired between the parties council and the court which gave rise to judge her tenure when she took the bench indicating what her understanding was we have no idea how she acquired that understanding on the record and what we do here is the conduct that transpired subsequent to that and even judge batin me both at the sentencing and at the restitution hearing had issues about what constituted this global agreement that was articulated at the sentencing and it seems that the government retracted a little bit at sentencing and further retracted and said it wasn't a greement maybe was an understanding so what the government is asking the court to do is on the basis of circum on this surmising conjecture make a determination of waiver and our position is because restitution is punitive in nature it shouldn't be that insurance does it's just as likely that didn't happen that it did all we know is that the court acquired some knowledge off the record and i gree with your honor i have no idea how they came or how it  of the gift that was making them by getting out there i'm just saying you know that at least as likely as your thank you if i can respond to your honor's concerns about the threat and how that interweaves with the offense of conviction and how under thirty six six sixty three one gets restitution out of that first of all i have the conceptual problem of if we accept the theory that both and see agreed to have this false marriage then both of them were criminals and both of them engaged in criminal conduct so for one criminal to a let to say another you don't do this and i'm going to turn you when you can to turn yourself as well as sort of like if i sell drugs to your honor and you don't pay me and then i'm going to threaten to turn you into the authorities and say you didn't pay me for the drugs that i sold you it be like leaning into a left hook in terms of saying which council mentioned then ninth circuit case there was a thing it's unlikely someone would do something like that it doesn't it doesn't hold true and it's consistent with the argument m questioning was leading towards the idea that even if he did that it wasn't related but you don't want to say that's not that's not a good argument and i'm not sure where you're you because to be going against your position in terms of trial counsel agreeing that they were victims even in and i prefer that you may not have the sealed documents but in humans is there in the record there in the record record pardon in the record we can give them yes and again everyone keeps field against us you know it in terms of pages four ten and four eleven of that document their defense counsel is still disputing whether or not these individuals are victims and finally as look at it and see what is going on and finally just if i may just for going a moment over the same the case was also had a thirteen twenty four allegation in terms of hard harboring and smuggling aliens and the defendant at the time of the plea colloquy admitted that he forced the victim to have sex before he would bring her in so it was intertwined with the factual determination  additional questions thank you very much and thank you both for your argument will consider the case care