reserve two minutes for rebuttal and if i don't use my eight minutes of course would see that the co counsel your honour's what i would like to address is the sentencing issues now the government has conceded that was not correct number two did not fully comply with rule thirty two and number three imposed restitution an error both because it failed to specify specific victims in specific amounts and because there was no recognition of the ability to apportion the restitution on that last point isn't there in the record or somewhere a list of all of the victims there there is somewhere a list  clearly order said that it should be administered through the bankruptcy court without basis pacifying any specific amounts to specific individuals we can kind of put that together and know that that's what the bankruptcy court w do is to do it according to the number of victims of what they lost well i think that that that's a possibility but it's not what's required by the mandatory restitution act and  well i think that it should be all i want the sex to be vacated and that would be one aspect of the water would be to comply with the restitution act in terms of identifying the victims and making a decision in the first instance of whether the full  the sentencing factor found by the court has an extremely disproportionate impact on the sentence this raised there's no case even close that would suggest a sixteen level increase is not subject to the higher standard of proof of clear and convincing this was objected to in the trial court and the trial court specifically said no it was going to use the preponderance standard certainly more than double the sentence even conceding the other  three increases without the sixteen level increase would have been an offense for will of twelve which carries a tender sixteen month range with sixteen levels or the amount of lost it increases to seventy eight ninety seven months and i think that for that reason alone because it was preserved and the court used the wrong standard approved the stench of the hated for that reason well first of all oppositions there were insufficient findings to show that mr yates was responsible for the amount taken in during his whole employment it doesn't make sense to hold him liable for the full amount that means that for someone who's recruited as a salesman he answered a newspaper ad to come work for this operation that had already been ongoing he comes to work there and under the court's ruling he's liable for every dollar that was raised from the moment he started working there to an operation that looked like you know i had an accounts department i have lawyers and i had people working there it seems on resume on unfair for a sales person who gets recruited through a newspaper ad to be it is a very effective salesman and he was right into the whole thing and doing a lot of the explaining which was created with pri well i think that the nature of the trial because he was always tells the person to go to trial then the government focused on evidence relating to him but in the big picture it was the mr mccray who started the operation who ran the operation who was the only person with access to all material relating to the business i mean the sales people didn't interact with the traders i mean there was trading going on and well he was scheduled to go on a trip and we never went on the trip and so i think that that's a little unfair and it came out that way because he was the only person i went to trial along with with with mccrae's and so the government's evidence focused on witnesses who would have something to say about mr yates but you know there were a lot of sales people working at it at the company over a period of time and i just don't think with relevant conduct under the guidelines in the relevant conduct is narrower because it makes it requires a finding by the court that it's reasonably foreseeable and within the joint conduct and it doesn't seem fair to hold  sentencing objections and court made no specific a finding on that and this is a guideline that requires that the defendant relocated or or participate in relocating our scheme with the intent to hide it from law enforcement somewhere there was an evidence that mr yates did that and so the court did not point to any facts or make any specific finding in that regard i see i've used almost the  for one thing the law is discretionary law the case dr discretionary but more importantly the monsanto or the adversary hearing issue addressed here is not a denecke of the issue addressed by the previous panel this could they could really not have decided what jones did in fact it's important i want to read this quote from judge lorenza sample sizes point quote i believe there's a declaration by mr nielsen in the it relates to the facts of this case he does not evaluate the declaration he says if you are going to be seeking money from that bond which i think was one hundred thousand that came from a bank account that was related to the for that reason alone that this court can can address the issue here and that the additional reason why this court may circumvent the law  case starker in this case is the previous panel's memorandum was erroneous their findings erroneous as it turns out applies to the judge jones case based on the evidence that that was presented to judge that and they also held that he had failed to show the that he didn't have other farms with which to find his criminal defense both of those reasons are refuted in front of joan's number judge judge jones was really was really faced with a different set of circumstances he was faced with a motion that was supported by declaration from mr nielsen who had thirty three years of experience working for the i r s in financial criminal investigations he was very very experienced so not only do we have a declaration in support of the adversary hearing request before  judge jones we also have definitive proof that mccrae didn't have any assets whatsoever to rely on so that the ruling really made those findings but those findings were refuted in the evidence that was a percentage to judge  hearing and he looked at the stuff he decided not to decide he decided not to make a ruling on that and to add to direct the parties to judge jones and judge miller with respect to the four hundred fifty thousand dollars  he did state that on the record judge burton is actually stated that there was a legitimate issue as to whether mcrae could in fact hires on council and the third reason under the prevent  n scourge of justice in the in that context is that the government really act by its representation is to the court and by the the positions that took before the district court acted to block mcrae from getting a hearing which i've discussed more fully in the supplemental brief so i think the kra denied his fifth amendment right to a two and a timely and meaningful adversary hearing you know what are to determine whether the hundred thousand dollars or in fact any of his other assets that were  financial criminal investigations stated that he reviewed the wy accounts and that the one hundred thousand dollars in his opinion was reflected legitimate commission income and therefore it was not tainted now in my mind that certainly establishes a tribal issue of fact so to speak in a situation where the threshold when you add to that the fact that lorenzo admitted that mcrae was entitle to i'm sorry judge lawrence was stated in open court that mcrae was entitled to an adversary hearing that adds here in the supplemental brief which i raised in the supplemental brief has to do with the fact that the government argued in the district court that the court had before i'm sorry the government argument argued before judge jones that the court had no jurisdiction to act on the fans because they were in the civil proceeding  when it and it when it knew that wasn't correct because it cited the case that holds contrary to that you are the unit makes case nevertheless the government representative judge jones that took that from the government also sort of mcrae was not entitle to an adversary hearing this is on may ninth two thousand and two also asserted that mcrae was not entitled to an adversary hearing because his counsel had indicated that he had other funds with which to use to hire counsel when they knew the government knew a week before on may second two thousand and two the government was at the hearing with charge burns and judge burns in response so there indication that they were going to seize all of mccrae's assets froze everything so that the government knew macrae had no assets he was effectively indigent and by representing that judge jones should not afford him hearing because he had other funds with which to hire counsel was burns that it spending civil or criminal forfeiture proceedings might not be successful i think this is a really important admission they make to judge byrnes judge burns put that in the record and then later the government agreed to release eighty thousand dollars of mcrae's funds that was being held up in the oceans trust account to pay his condominiums misses condominium expenses now the government says well that that was to preserve the assets would be requesting that some additional time in order just to present to talk about the substitution of counsel issue as well the core be willing to grant me that prosecutor in this case to confirm that she had previously agreed the government would not seize any money that goes back to you that this not exceed seventy five thousand dollars so even so the government statement that well the money was all going to go to the victims and it's not entirely correct the government was willing to release seventy five thousand dollars of sales of from the proceeds of the condominium to mccrae which could have been used to fund criminal defense now i just want to say i just want to get to  in the excerpts counsel rocking this motion believes that communication with mcrae has broken down to the extent that he can no longer affectively represent macwrite that's canoe johnson stating and i drafted motion that he made that he can't do it he can't represent the craning more so macwrite and then there's two hearings before judge jones mcrae says listen there's you know he's not prepared he says he's not prepared i'm really worried i i can't proceed with him in front of judge jones on june seventeenth which would be the second hearing arms on the substitution of counsel mcrae brings up the issues he has with  case that alone to me establishes a serious conflict which required a serious inquiry by judge jones you know order to make the determination of whether mcrae should be allowed to substitute milchan his previous counsel and the problem is the court's inquiry was inadequate the court merely had two brief hearings and merely state was completely focused on the fact that he felt that mr johnson was competent which is not an adequate reason to deny substitution of counsel and was concerned with the lay in this particular case the substitution of m back in the case would not have delayed the can use from one day he had worked on the case for two years before mr johnson was appointed he was fully ready and prepared to go any been paid so the court's reasons were really not sufficient and for that reason i think the court abuse its discretion and not allowing a substitution in addition to the inquiries were not substantial enough to account for the seriousness of the conflict that had they had begun months and months before in the first issue regarding why the government established a loss of more than twenty five million dollars beyond a reasonable doubt at trial i raised revenue agents lee wright testified to that i now he provided schedule thousand dollars and that created as text level difference and minimal in this case they should have argued what gates had needed during the course when he admitted to ira's agent lying during an interview you do get a doubling but if you use the five million you wouldn't because the courts lost with plastic steen the guideline range from now was seventy eight to ninety seven months if you used a five million dollar loss if the defendant july nine hundred ninety eight top august nine hundred ninety nine and the indictment itself alleged a thirty million dollars fraud and the defendant was employed and i i feel during that time period so based on those factors you should error on this point your honor factually in terms of the restitution forty eight my co counsel address any legal questions you have but there was overwhelming evidence in the record regarding who the victims were is he's manufactured this irreconcilable conflict with commute johnson who is his third lawyer after he fired his first two and if you look at the record in this case especially creech rial all  complaints about in the center around ineffective assistance of counsel his primary complaint was a canoe johnson would not do what he wanted him to do when the crate wanted it done and  there was a breakdown in communication between mcrae and his attorney can you johnson the other thing i'd like to point out to the court that the record is very misleading with respect to the record he presents on this issue an accomplice so he doesn't include that transcript to this court because obviously undermining contradicts the position that he's trying to assert at this point on appeal the other important information you need to know is that he admits or tries to convince this core in at least three different documents that can you johnson and needed to a breakdown primarily prior to the trial and that's simply not true one of his documents is a may fourteenth two thousand and three fat motion communication that i'm ineffective importantly that document was never given to just downs if you look at the excerpts there's there's no record of joe johns ever having seen that document two other documents that he's alluded to one is the was never filed with any court and was never given to judge jones until july two thousand and five and it was prepared at a point prior to the point time that they had macrae's motions before judge lorenz included both the former and fifty thousand dollars and the hundred thousand dollars every time he made a request for a hearing he wanted all of the money back and so it was fully and fairly criminal cases were pending before separate district court judges and both of the civil forfeiture cases were pending before yet two other separate district court judges and there were pending motions in the two civil cases to join them to one judge and there were also claimants victim claimants in both of the civil cases who had already filed claims to the same money that mcrae was trying to get that back for payment of fees from victims of his fraud and i think if you look at the big picture of things the district court was very concerned that victims rights be adequately protected at the same time as the defendants claim any claims to two money by the defendant and i think also at the same time what you had going on was you had repeated representations by mccrae's counsel that he had other money he had other funds if the court looks at the record i can tell you if you look at x or fifty three point one excerpt of record sixty five an excerpt a record fifty three point nine those are all representations by whichever attorney was then representing mcrae that he had access to other funds so i think all the district courts were looking out were he still has access to other funds we're not going to address the issue when we have victims making claims and all of those cases the other thing that comes up is judge lawrence obviously the district court judges are very respectful of each other's cases was aware that judge jones had the separate i have felt fraud case pending before et whereas judge jones was aware that in the that fraud courts were very worried that there was going to be a minimum amount of distribution in the i felt bankruptcy case as opposed to the fat fraud case where mcrae had been caught or he knew he his criminal activity had been detected and he was quickly trying to make payments to those victims so i think that that is what was going on in terms of what the district courts were doing we also had pending the multiple motion with by multiple counsel because the state said mr mcrae had separate counsel in each of the cases and when he would lose the motion he would replace that counsel so there were there was also evidence before the court as to attorney milton that he had received in his attorney trust account seven hundred fifty thousand dollars and the government had only stated four hundred fifty thousand dollars of it and then there's a subsequent letter by mr mccray stating that he had paid mr milton five hundred fifty thousand dollars for a case that hadn't yet gone to trial so again against all of that backdrop i think the courts were very concerned about returning any money to mr mcrae when he had not made a threshold showing council makes a great argument about agent nielsen former agent nielsen excuse me former agent nielsen's declaration that one hundred thousand dollars came from supposedly legitimate funds however if you read that declaration it is only in the last paragraph and he he kaviak that with from the records that i have reviewed it appears to me that the money may be from earth wise investments and it is a legitimate trading company the court heard or saw in the declaration in support of the seizure warrant for that money from special agent temp france that that money represented yet fraud proceeds from a third fraud committed by mr macrae via earth wised international in australia by the japanese investors so this was yet and also contradicted representations that mr mcrae had made in seal proceedings regarding the posting of the bond as security for his appearance where he said it was from a segregated account from legitimate commissions and against that context the court found that he had not made a legitimate showing as to any claims to the money it's also important if the court is going to look at the request for a monsanto hearing relative to judge jones the judge jones never granted nor denied it he took it under reservation and directed the council bring it back to him when it was right for hearing or  did council tries hounshell tries to say that the government froze additional assets but was the only assets the government seized were the two separate pots of money judge burns w to either judge burns or the district court for on the freezing for purposes of paying counsel thank you thank you very much to me except for your other once again the government is number two there wasn't a finding by the jury that that amount was reasonably forseeable to mr yates that was the judge found determination that had an enormous impact on the sentence the government tries to say well there are these different levels so it really wasn't that much of an increase but the fact was the defense objected to the sixteen level increase the court specifically found was only