was there's two separate conspiracies but the but the instruction that the judge gave a decided by the government pays one thousand like you could if the jury finds that mr landry's conspiracy or his defense was seen or small a part of  larger one then they can still find him guilty and i understand that was the instruction that i fought against to try to get separate but understand that that's what the jury found but if they found that it was a smaller conspiracy within the larger one then what was in essence that they find he was guilty of in terms of when he became involved what was the last amount that he was a count for when did he learn about the other aspects and that was where the issue came and the eleventh circuit they stay tell you is that you have to be careful when the person testifying and when there's multiple conspiracies that they're just going to transfer the proof of one person's involvement in the larger one into the other person it's a fight and clearly that's not the standard here but in this particular case with these specs that's exactly what happened and that's exactly how the court in eventually instructed to jury did listen mr pope has admitted that he's in ball the whole of these conspiracies he admitted that it was his plan he admitted that he supervised mr injuring everyone else and in fact he put it all together with the idea that they were going to have a legitimate business the only question was that the evidence what mr pope never intended to have illegitimate business and the question that the jury had to decide is whether or not mr injury and those who all were involved that the same knowledge about what was intended when it started were how many cubic you how many transactions with the convicted judge there was essentially the evidence was that there was this the charge was that this was this overriding conspiracy that started in two thousand and nine but there was like five or six different entities mr injury clearly when the government clipped the indictment they named them all as if everyone was involved in but actually there's just three phases of the case judge the individuals actually worked at a legitimate mortgage company back in two thousand and they put all the mortgage in the free money and everything else to refinancing and they all worked in a legitimate company together with the very same roles in two thousand and eight mr polk at the idea because it was starting to collapse that those three individuals and others that he knew in the business could start their own company to continue doing it and so the first issue was was the agreement to start this new mortgage company this mortgage modification company was this eight the idea from the beginning i get up to have a conspiracy for far mr injuries defense was no i just simply continued to do what i was doing before it was a problem i was working for greenleaf in the prior more histories i'm doing the exact same thing over here i did not understand that this was far what we know from the evidence is that he that the people whom mr were the same workers they were the same people they were the same folks who were working they were doing the exact same thing and essentially none of them were charged with be part of a conspiracy at the beginning at the inn or anything else and in fact the question becomes how much was the control agent was mr injury and there was no evidence that he was a control of anything that he was involved in any organizational control or anything at all would be his brother had some through his mother he brought in to simply be an agent for him to go out because he didn't go and talk to the individual clients and in fact the important part of this the evidence came out that the initial comments that were brought in when the e c was first finest were family members friends from the church and the people brought their sisters and their brothers and and the people there working were conferring referring people to this to this company and it wasn't until after mr pope a year later decided to take his entire operation and move it and leave mr andrew standing there to try to recover something that he didn't realize mr pope that something totally different going on and that's where the majority of the loss went so the argument that i'm making here a judge is that if we start off in the seven a says it's ok to convict him of the larger conspiracy if he's if you find that the smaller one isn't part of it the question is it is it then fair to sentence him as if all of the larger conspiracy is valid in conduct which is exactly what the in this particular case what they're doing but the way they charge is bringing all the pope's conduct and transfer to mr entry from from the leadership role and everything else notwithstanding all the evidence that he had actually had no control no supervision or anything council will meet and i guess i'm a little confused by this because obviously these the variance issue and its relationship to the sentencing law somehow it or that relationship is pretty obvious but given our decision why us against twenty eight which essentially approved the instruction as i understand to be as the judge gave here that would seem to take care of the variance problem as least as far as conviction goes it is judge and that's and that's why i say it's sort of circular because when you start thinking about the prejudice to mr injury the prejudice comes  exactly judge ok well ok but i thought you were asking us also to vacate the convictions because it's not clear because of the way he was sentenced judging what the jury found was that in fact that it was there that in fact it was part of the same one that's what they found clearly and if you use your standard the conviction has to stay but out any question but if you indicate here that the eleventh circuit indicates this transference issue is an important part and in fact it results in a substantial prejudice you can apply it standard to reverse a conviction that that's the circular part of the argument that if in fact you look at the issue of the stench of prejudice to mr injured because of the way the the multiple variances used here was because the eleventh circuit city would prejudice in terms of calculations of relevant conduct is sufficient to require a new trial on the convictions no the language that i was citing judge and that i refer from my  is primarily the transfer of proof from one defendant to the other that's he that's the that's the issue that i have to go to the conviction and i understand that clearly as the government points out i don't explain why it is but again as i started it's circular  what it is of happening is that if you essentially argue in the seventh circuit that the proof provides me my involvement for only a small portion and then emitting that the prejudice you suffer this all of the punishment in the light then the real concern is that you should make a determination factually the judge sentencing or some point whether or not this issue over are we talking about the relevant conduct as transference from simply someone else or we find that independent of the person has been sentenced in this case judge there says there's no there's no evidence and there was nothing presented to indicate that mr injury sentence was unique to what was found or what he was involved in fact the jury was not allowed or even instructed to to even measure it out they simply said that if you find that it's part of the overall conspiracy then you can pick them and then we get what we want argue just that the better solution here would be to reverse the conviction and apply the sept eleventh circuit but notwithstanding that i would asked with lisa for it back for since he purposes because again this finding of evidence that somehow he was a fraud at the beginning and therefore he was part of the leadership rule that he was supervised folks was not the evidence that was presented and just whining webber in a district court had an obligation to make a factual specific pani concerning his leadership control and seventy eight months that's correct and the end and he received forty eight but mine would have cut that in half i smiled my dollars would have reduced it by eight levels and the leadership would have been gone i also argue that at  since hearing that he in fact had accepted responsibility because from the very beginning he had it made it the portion of his smaller role in the conspiracy we went to trial primarily because the government wanted that mission that he was part of the larger one from the very beginning and so my calculations indicated that it was arrogant to apply that standard thank you thank you good afternoon they please the court there was nothing improper this trial or sentencing of mystery entry he was here on earth he was charged with six counts of mail fraud that dated from the later period of the scheme two thousand and eleven to thousand and twelve there's no can charge you conspiracy and there was a charge risking there was no conspiracy charge but the allegation was that the scheme had started years earlier in the beginning of two thousand and nine the if the government had introduced evidence to prove the scheme began in two thousand and nine continued up through two thousand and eleven two thousand and twelve that with the charge counts of mail fraud and the evidence was modification services the same false representations were used in the early years and in the later years the same people of those false representations were stopped paying their mortgage you will qualify for a lower mortgage payment don't worry we have attorneys to help help work it out if there's any problems and we guarantee results so stop paying your mortgage pay us and you'll have no problem of course those same for service and haitians were true in the early years and in the later years and the same coast dreamers were involved in the early years and in the later years everett polk the defendant and the defendant's brother there was testimony as i said that the defendant was one of the founders of e ac there was testimony from a defense witness  trial that the defendant had made those false representations while working at the s c and of course that the victims too who were who testified about the defendants conduct in the later years until two thousand and twelve but even if there weren't even if the evidence was only confined to the jury had found only credible the guardian the later years that was sufficient to convict him u nder the instructions of the jury received and those instructions were proper under this course law and i don't read in the defense brief to argue that the instructions were improper it was or any indication from the jury that they struggled with this problem about school i'm not aware that the jury did convict him of all six counts in the superseding indictment so but i'm not aware of the length of time of the deliberation i mean i was referring to questions of some o you know that the argument is somewhat different it's not a proof beyond a reasonable doubt participation in a subset of this charge scheme is sufficient to convict the dischord head to find that the entire conservatively and reasonably so confined to the fraud amount that the defendant himself had participated now the district court found that you know whatever the jury mine found about the conviction whether it's based on the there's no contention that that fraud scheme was not otherwise extensive or having fun for the participants there was testimony that he ac had at least fifteen employees so with  issues for the beginning of the two thousand and nine the a c stand for everett pole andrew ramsey and kopi injury andrew programs and ramsey was never charged identified his role exactly like mr injury and he basically told the f b i at the time that he had nothing to do with it neither he nor injury had anything to do with the creation or anything else this was mr polk's company that's clear and so what you have here is that if this was brought from the beginning then those individuals who were part of the scheme at the beginning expressly alleged to be cooperate hers had to know but there is no evidence that this person was charge a new of anything and mr gantry indicated that he didn't know either but we have is that when the administrate if you're a family kane he showed up piece he was he actually was named because he was on the manager of the corporation didn't even know it that's the testimony as well that the last thing is the leadership the only issue with the fifty at that if they could if the scheme and all fifteen or more the only way it applies if in fact mr injury was a leader not fifteen employees for mr andrews company it was not fifteen employees for any of the skip the smaller schemes that he was cited for every pope had his own scheme and in fact when mr entry agreed to go with his own skin with his brother the ac stopped exists he changed his name he moved it and he it was his company from that point and so the idea that as the seventh circuit says is that you have to not simply say that you have control you have to actually