briefs the appellant is challenging his conviction under eighteen u s c section five thirteen be the key analysis before this court is whether or not the template presented by the government at trial was quote an implement designed for or particularly suited for making a counterfeit or forged security in this case the government in their case in chief presented a variety of checks that were  at some point which they indicate form the basis of the crime previously in the case in a car a photo copy was found in this photo copy involved two checks from the same financial institution it was the government's theory of the case that the negotiated checks were created from the information gleaned on this photocopies of the question becomes was that photocopy a template as intended by government in their position relies on the case holman which found that a negotiated check could in fact form the basis of a template and the government seeks to extend that interpretation to mere photocopies and i think that that's  in home and the court was very specific that they were allowing that extension because the information from the canceled check was essential to the case it translated from the canceled check to the negotiated checks sequential numbers  signatures that type of information in this case is the court can see from the proffered proposed template and the negotiated checks they bear virtually no resemblance in fact the only two things they have in common are publicly available information so to say that the photocopy was necessary or particularly designed for creating these counterfeits i think extends the law too far it is too wide of a reading well you said two things aren't there really the government says they're for you know how they count for they see the account holder the bank the same routing number and the council one digit i think it's a semantical difference between how the government views their evidence and how i do and even with that reading your honor when you these documents side by side it it doesn't it doesn't make sense it would be the equivalent of saying that and an art forger could take a black and white copy out of janson's art history and that would be a template for a forgery of the mona lisa that that photograph doesn't have color it doesn't have texture it doesn't have size it's it's interesting but it's not a template and the same analysis is true here yes he had a photocopy with those two checks what definition do you have of implement id it's not defined you know but what definition would you give us playing headed in the brief of the dictionary definition i think what we have to focus on the statute is particularly suited because if you accept the government's broad version of this then literally anything is a template and that's an absurd result so i think it doesn't have to be anything with this with the creation of the forged i think even that reading is too broad your honor i think it is an implement designed for and we agree that this was not designed for but then particularly suited and the word particularly suited for a way for making a counterfeit forgery ok and i think i why do you say anything could be an important it's got to be something particularly suited for making a forgery correct i would say in this case if you were to take the to cut the photocopies of the two checks they have the same information that a enterprise bank statement would have an account holder statement that would require them saying ok one an enterprise account holder statement can now  be a template for these four checks because they have the same information that was used on the negotiated checks i think it just gets too broad all right well that's different than saying anything i mean and you know you can perhaps i was the government's brief in the next case could be used as an implement for that but under the government's theory my brief in this case could be used well so but i know you have the photocopies of it yes yeah i was too liberal with my words clearly not anything so what's wrong with the information needed to then create the forgery i think that that i could in those things be implements i think that that reading that's how the government would prefer to see things but i think that ignores the very specific language bestowed by the statute which again says it either has to be designed or particularly suited and i think that having one overlap of an informational count is not such and in fact the holman court stated what turned this was the fact of how much of that canceled check was reuse the sequence numbers of the signature the graphics the logos none of that's present in this case if the court has no further questions on that point i would like to turn to appellant second point on appeal which is an issue that is familiar to this court and it is a analysis of eighteen u s c thirty five eighty four isn't that moot in light of what judge ross d consecutive and concurrent that she was not allowed to make and i think that what the problem here really is is that has tainted judge ross's judgment whether he admits it or not and i know the sensing transcript he specifically said as the government will point out that he didn't really care what judge fice sic did or didn't do this is what he wanted to do he thought a big sentence was important but the problem we have is if we vacate the ever seen a case where that's been done i've not your honor so you want us to remove the designation of concurrent consecutive here and leave it all up to the judge in the second case i think it i think the statute dictates that i'm going to marry me his belly that this is a this is a ding dong now i have they're seeing i understand that this issue certainly got less clear and more complicated with judge ross's verdict with his judgement the problem we have though is that the position that judge fleiss they put judge ross in is is that he almost had to say that and he and i don't know that if it goes back in this is corrected he won't say the exact same thing again in fact i anticipate that could happen but it's not a clean record right now and judge indicated what would you like done i would like the consecutive designation removed from judge fleiss eggs judgment i would likely ask for the case to be reassigned for  someone could take a look at it and i which case this judge ross case but but actually your prayer for relief says you want first to reverse and render right yes yeah that's what that's really fast for and that's kind of an afterthought that if you're not willing to do that then we can send it back and you never asked for a different judge should send it back to the court for reasons no i go junior well you don't care you're worried about the judge in the other case because you say in this case that you just want the consecutive concurrent designation removed correct you don't want any i mean if we affirm the conviction you don't want anything more in this case that is correct your honor judge ross's judgment has been separately appealed that item has been preserved and can be addressed at a later point in this case what i am really asked one talk to the merits briefly in case we say it's not moot why why you think that the oh absolutely absolutely discord in the first case can make three consecutive i but i'd be happy to your honor this is a argument that was previously raised before this court also with this appellant i believe that eighteen u s c thirty five eighty four does not give the district court power to impose a sentence consecutive to a not yet imposed sentence in federal court i think the statute is not a conferral of authority it is a limitation of authority and i think in a situation where there are two federal cases and the first sense in court is in a position to have to render a judgment that they have to be silent as to whether it is consecutive or concurrent because that decision is up to the second last federal sentencing judge who will then have before him all of the proper information under eighteen u s c thirty five fifty three to make this determination but i really believe it comes down to the authority granted in eighteen u s c thirty five eighty four which does not give that first judge when there are concurrent federal cases the ability to do this i would indicate that this is an issue of first impression before this court it was raised in a footnote with stats or but i would ask the court to turn their attention to the first circuit case of united states a person monte raise and i believe that there are a logic in their analysis in this matter is sound i would note that it's also been adopted that theory of a monte race in the first fourth and ninth circuit's and should the court in to decide to consider this matter and not find that it's moot i would ask you to follow the logic in those cases if there are no further questions  of my time and the other issues raised in the brief i would submit on the record that is before the court in those briefs very well thank you very we'll hear from you here on a good morning good morning my name is tracy berry i represent the united states and in this appeal your honor i kind of want to work backwards here just get it out of the way the issue with regard to the consecutive versus concurrent under thirty five eighty four the government agrees with judge benton this is duper  actually we might even say it's super duper duper moot because the whole issue that the defendant raised in his brief was that there was going to be some conflict between the first judge's decision and the second judge's decision the second thing that defendant claimed was that the second judge would be banned by anything that the first judge did now that was also a concern that was addressed in monterey however as the court  pointed out judge ross was very clear that he was exercising his independent judgment he was following the law as judges are presumed to do and he stated from the moment that i found mr watson guilty of this  was always the intent of this court given the fact that he committed this offense while he was locked up on that offense to run any sentence that i imposed consecutive with any sentence that she imposed so whether she had ordered it consecutive or not it would have been my judgment that the sentence in this case one consecutive to any sense that she would have a would have imposed so that was just the position of this court it would have always been the position of this court and that position is regardless of the determination that she has made if the purpose of sentencing is to ensure that the judge to impose a sentence has the most information available why on earth would the case be remained in reverse and sent back to a judge who does not have the extensive knowledge of judge ross in this case to make the decision we would submit your honor that the judge followed the law and since the judge followed the law and there is no authority supporting what the defendant has suggested that this honorable court find that any error that would have resulted from judge by six decision be rendered harmless recognize the supreme court's decision and sets or while the truth specifically says that it does not address this decision that was in a footnote but if you go back to the leading to that put no it says that the court's consideration is that they wanted to make sure that the state court that would be the second core has all of the information before it when it acts so at some point the supreme recognize the decision of the other circuits but in it doesn't apply in this case there is no conflict the second court recognize it independent judgment ok you want to address the matter of the implement because of as has been known it was whether the copy of the canceled check was an implement the definition there is no definition of employment but the statute five thirteen b that is a and implement that is designed for and then the second part is and it will bit that's particularly suited for so the issue as to whether or not the copy of the canceled checks was particularly suited to make it count if it security is based on the circumstances of this case the copy of the cancelled checks that is in the defendant's brief could be considered an employment because it has all the information on there that could be used to make a counterfeit security just as the copy of the canceled check in his car along with four other counterfeit checks counterfeit check making stock as well as the tokyo marines specialty insurance ch that was used to make the poor restoration temple counterfeit checks found in that car there's a lot of information in this case and that information was before the judge and the judge was able to take that information and determine that the circumstances were such that in this particular case the copy of the canceled checks could was particularly suited and the things that she noted are the things that we noted in the government's  the name of the draw you bank in a prize bank and trust the name of the law for the routing number and the majority of the account number there was one number that was changed all of that information was used to make the idea for you you want to make some counterfeit checks and here the particulars that you could use you could use this law firm name this company name this routing number and this account number and so forth and then read took a look at the letter and it's a good idea and he made the check yes and now with the letter b and implement your honor the the letter if if in fact mr reid use that information to make his counterfeit checks and those checks were successfully passed then the government would submit that the letter containing that information was valuable and was necessary and lead to the creation of that counterfeit check a mistress see the limits of your argument you think that's particularly suited the letter i think the the letter only name you're on it with the phone book no your honor and the reason being that a phone book does not contain sharon chaps and banks at enterprise bank and trust and share it and enterprise bank and trust routing number is this and sharing shabbes and account number at enterprise making trust is this this there are there are situations where it could continue to believe the sixth circuit in way also looked and said the check or whatever the check that was used whether it was blank or cancelled was an implement because it contained material information that was used so if that check is used to make a counterfeit check then it's particularly suited i don't believe a phone book would ever be particularly suited passed and somebody took it i suppose the prosecutor might say well he got four out of the six pieces of information out of the phone book and that was particularly suited to give him what he needed to write a plausible looking check your honor i would certainly hope that my colleagues would not mean that would be too far i think it would be too far i think it would be a different about this check you think it's important that  routing number that it's in the form of a check or what is it exactly i think the important distinction is all of the information for sharing chats and that was needed to successfully pass those checks enterprise council don't you think you need to give some me the word counterfeit we all kind of know what counterfeit is is some of looks like somebody didn't write yes or so if you give some meaning to counterfeit when that distinguish the phone book i forget as you know running numbers or are there  public the you can click through four places in internet in a second get the routing number of a bank that's correct your honor but that would have to take you to a step beyond that's why i was that's my position that all of that information is included on the question the definition of of a counterfeit security is one that appears to be like the original it's like it it looks like and in this case for someone that isn't the number it has the name of sharing chats and the account number all of that is in there and us bank it appears to be a genuine check they accept it they provide the money they submit the check to enterprise making trust and enterprise they can trust even though it is their account holder they required sharing share a to fill out an affidavit of forgery to say that this isn't counterfeit so even enterprise bank was requiring someone to say yes that enterprise bank was saying this looks like a check  your honor i think one of the other things and this may seem a little bit far afield but it's kind of like the the phone book example a nut cracker is designed to crack not a rock is particularly suited under the right circumstances to cra in this case the counterfeit checks that were created by this defendant were particular i'm sorry the template or the copy of the cancel chat was particularly suited to make it counterfeit chat the kind of the checks were made by the defendant they were passed by the defendant it and his coconspirators and they successfully obtain the money this is an issue with regard to this court of first impression as far as defining a template the government would ask that this court follow the president that by the six circuit the third circuit and fourth circuit in looking at the circumstances to determine whether a document is the implement that's particularly suited but with regard to this case the government knows that the standard of the review states that when we when viewed in the light most favorable to the united states and all reasonable inferences that support the ver suited for making counterfeit securities so we would ask this court to affirm the verdict of the poor and we would also rely upon our brief with regard to the other issues thank you you mr newton you may proceed with rebuttal thank you your honor of focusing in again on the question of employment there is no question of the underlying case that counterfeit checks were passed it is tying the past counterfeit checks to this photocopy that's the key question because the statute also goes on to say we're not just looking at an implement designed for a particularly suited for making counterfeit it's also that the defendant must have the intent that it so be used and when you put can be translated directly all the way to a photocopy is too far i think it a road to the instructions in the guidelines set by eighteen u s c five thirteen b and i would ask that the court not allow an expansion of that definition of a wall in that way if the court has no questions i will cede my remaining time i would request that the court reverse the judgment of the district court thank you very much very well thank you for your argument the case is submitted and the court