done a spell of counsel for gary weimer sr i can speak on behalf of all console that we each reserve one minute of rebuttal time i assume you've divided this up among yourselves yes equally  to transport stolen motor vehicles actually it's a four part conspiracy and our argument regarding sufficiency is not based on the suggestion that gary weimer sr is innocent of criminal conduct our position is that his conduct amounted to eighteen and abetting the principle offender and not conspiracy and while there's not a lot of law on this subject the case law does draw a distinction conspiracy as the court knows it is an agreement to commit a crime and aiding in the bedding is given substantial assistance to another individual to commit a at are in a better get the same sentence as the person who's aiding and abetting yes but our position our position would be mr or sr was not charged with aiding and abetting which is a separate crime and therefore if the agrees with our theory the conspiracy conviction gets thrown out and there is no sentence because he's only charged and convicted of one count if we look at this on a case by case basis as you're suggesting it seems beyond dispute that  he did a lot of things he did an action with this enterprise conspiracy and that's why i advocate it that's you know i mean he's guilty of something so to suggest that that that he wasn't basically part of this agreement that what was his brother his brother michael michael weimer yes it is brother head just seems seems sort of hard to believe so what is missing here in terms of all this involvement that you think is essential to show that he was a member of the conspiracy or the conspiracy has four objectives transport stolen vehicles transport stolen property steal property interstate commerce and possess stolen property taken in interstate commerce and the weimer senior did not share in any of those objectives the fact show that at a certain point in time i think was in two thousand and twelve michael weimer who operated a chop shop i believe it was on sterling street was his chop shop couldn't handle all the vehicles that his operation was stealing so for a five week period i think it's november december two thousand and twelve he sent some of the vehicles to my client's salvage yard and there's testimony from a prosecution witness that weimer sr operated a legitimate salvage yard at this console streets location so these vehicles of about seven out of twenty four that were stolen by michael warmer or were brought to my client's salvage yard and dismantled and ultimately the it was the property was stolen for ever sold for scrap and that certainly constitute substantial assistance but it doesn't constitute joining in the operation the agreement of michael weimer and well beyond this his courts this is son to take some of this material to the scrap yards he helps diebold transport stolen aluminum to pennsylvania and he actually goes to his brother's facility to perform actions there to well i'm  i'm not sure that he wasn't as brothers facility but i'm not aware of any evidence showing that he did anything there he was observed michael i'm or son testified that he came to the sterling facility and obtained stolen items and cargo loads from stolen trailers well i that's what i believe the testimony is and i think that's consistent with the argument that there was this was confined to this five week period when michael weimer was experiencing handful of relatives of his age cohort who had been in this business back in the eighty's and ninety's in the eighty's and ninety's my client who's the son of one of the people who had been convicted back in the eighty's and ninety's was six years old you fast forward to two thousand and eleven and no surprise my clients got no high school diploma he's functionally illiterate addicted to opiates and almost living on the street the remarkably at this point he has no criminal record despite all this despite the lack of criminal record in these other situations the trial court sentenced him to sixty months the maximum in prison in the third part of my brief i argue with the sentences substantively and reasonable that should have been given them if not the opportunity to rehabilitate himself the sentences within the guidelines are just going to say because it's within guidelines it's a presumptively reasonable sentence so what i'm asking the court to do today is to look closely at how those guidelines were arrived at the guideline range was actually sixty seventy eight eighty seven right would have been but it's trumped by the statutory max so he gets the statutory maximum but it's the guideline range correct so you're saying that the judge had an obligation to depart or very hear well actually you substantial you have reasonable and i think that the district court should have in terms of just reasonable list but the argument that i want to concentrate on with the court this morning is that there were two aspects of those guidelines that were in correctly decided and have been up an incredibly decidedly guideline ridge would have been much lower would've been lower than sixteen months would have been i think in the forty's somewhere they bring to the court's attention two points with respect to the guidelines the first being the question of the number of victims there were victims counted who definitely should not be counted since their losses were not included in the the number of victims argument that you're that you're making yes do you still have a remaining argument that the sixty months is not substantive substantially reasonable well in terms of the other argument i've made which with respect standard to hit out at the sentence was too high for this particular individual in any event what's your best case i mean it is possible that the best case would be if the court agrees that insurance companies are not victims ok don't let district judge abused discretion by sentencing guidelines what you are would be a matter for this court to look at this man situation this young man said you know can you cite other cases were somewhat similar to this that we found abuse of discretion within the guy i guideline calculation i don't think that let's go there thank you i don't think insurance companies are victims for purpose of the victim comp they voluntarily contract we stand in the exact shoes of the victims themselves and it's  back out and so they're but they're most of them are stock companies if shareholders they try to maximize profits system might be good system might be bad but why aren't they victims well because they don't s they don't sustain a loss what about part of the premiums they're not going to pay out every dollar in premiums that they take in or they are going to be out of business so they retain some of the premiums that they take it pays their expenses and presumably if their stock company pays the shareholders if they don't get reimbursed for something like this then at least the portion that they were going to keep for themselves they loose right right why isn't that a loss i think honestly i think that's looking guideline scoring issue which is the acceptance of responsibility my client pled guilty on the eve of trial and this case was handled in the trial court in kind of a group fashion much as our appeal was being able to fish in this morning there were proceedings and the judge begin sentencing the various defendants and at one point there was a recess my client  and he was about five minutes later i could understand why your client could be suspicious that judges i or when he was late might have carried over but we have a situation where the court specifically disavowed the earlier statement when he was apparently irritated with your client and and he said that wouldn't play any role in his son's so we're is there any sort of objective evidence that undercuts what he said if the court will go bare well he did say that  denying your acceptance responsibility that's two points on the guidelines and sure he can say later on well it doesn't affect my sentence but it certainly does because you gave him the two points you know took away the two points no maybe it's a loser argument setting that aside but how do we know let's let's move back to at the time that acceptance was denied as opposed to the imposition the sentence at the end just reading this it is the biggest factor least seem to be from the cold record that we looked at is your client asked to fully accept responsibility for everything he did there's a disparity in what people are saying so the probation officer asked him to come back in and explain and you refuse kind of a kind of a risky move there when he when you say you don't think it worked well for mr bolton or you're already known so why is that not enough upon which to for the government to hang its hat that he wasn't entitled to saying where the judge explains then more explicitly presumably why if true he denies acceptance of responsibility do we have any reason to believe objective or otherwise that the result would be any different here based on based upon the record i don't know we can tell from record what the result would be so let me do you think you might have an epiphany and he wouldn't get acceptance or something or he would get  does not include acceptance and then there's a variance above that would that not be a pretty clear indication that the judge would not give him except and or would give him a lower sentence because of the in determining my client's involvement in the conspiracy for the purpose of the sentencing i think the court erred in applying a reasonable person  standard several times in the transcripts you see that the court talked about what a reasonable person would see even no matter how small a part of in this conspiracy the climate played it was a it was reasonably forseeable for a reasonable person to know what was going on and i think what the court was expressing was its indignation at the l the one point three looking specifically at my client's viewpoint obreht was going on and i think the court failed in doing that and in doing so the guidelines went from could have been as low somewhere in the forty forty months to the five year statutory maximum of if i understand what you're saying is you want foreseeability to be determined from the defendant's point of view but our case law seems to say that it's an objective test in the six cases answer that proposition is cattle on c a t a l a n do you have any and cochran's you have any response  the cornerstone of federal sentencing guidelines we indicated that for see ability is the ability to see or know in advance maybe an objective determination but it's considered from a defendant's viewpoint not what the reasonable person in general is is looking at jack tive means you don't look at the defendant that's subjective it's in some ways that's what's confusing about the case drill down to be clear about this were panel can't overturn other panel decisions under our rules so do you have a way to distinguish cattle on cochran either telling us they don't apply for some yes what year is that two thousand and it's going to be significantly nearer than the conduct of the press after cochran but it's before catalyze getline came along afterwards individual and dealing with the individual all has gone even objective lee looking at it and saying let's assume that you're right your guys what's referred to as the torture in this operation right wreck and the evidence seems to suggest that he was involved in the dismantling or obscuring the identification of virtually all of these thefts no i disagree with that and i think there were three for instance  greg rose testified as i understand it that he and your client were inseparable and every time michael weimer stole trucks and trailers that he and your client came to the shop and they cut him up and process occasional however infrequent i don't think the court agreed with mr rose or or found what mr rose as convincing the court in some sense in my client admitted  client's profit from this was minimal that his role in this was minimal but still said that he didn't say the role was minimal he said that he was directly and significantly involved and he said quote without anyone to dismantle the trucks the operation could have gone forward it's as simple as that end quote pretty strong statement right in that i'm looking at transcript  five thirty one page id's six five five two three fifty four however caijing or however and frequent george contradict himself in saying that because i mean he acknowledges at this point that my client's role is infrequent and occasional and other testimony indicated that my client wasn't there all the time and certainly didn't profit from this in those are factors that showed that he can start of the conspiracy  any question about he's part of the conspiracy i think from a criminal pinkerton evaluation no but when you come out of the conspiracy then the question becomes is he reasonably responsible for other actions of other he knew what the operation was he elects assume he wasn't there and he didn't he didn't wasn't the torture on every one of the trucks you got that there's no suggestion that he didn't know what was what the other conspirators were doing on the cajuns when however occasional judge does that doesn't mean that he understands first of all let me be clear he didn't the judge didn't find it was infrequent he understands your argument he says even if it was infrequent it doesn't matter that's what he said indictment without the benefit of a plea agreement that indictment named him solely in the conspiracy count to which he pled and named him only in one overt act they scrapping of a two thousand and two peterbilt semi stolen from ville indiana a mere few days before the conspiracy was essentially shut down by the government after from the objections to the written p s r as to the loss amount in number of victims that were calculated in his guideline range the court had multiple hearings on the issues and eventually overruled said objection in calculated my client's guideline range to be at twenty five with a criminal history history category of two for a range of sixty three to seventy eight months eventually sentencing him with a downward variance of forty eight months if my right to cut to the chase here that your argument really is solely charged with being involved in this one truck and you can't look at the evidence and connect with the other defendants to determine whether he played a more expansive role in this conspiracy that basically it to a certain extent judge i believe that argument isn't whether he was a part of the conspiracy or not he pled guilty he perform an act that was definitely in further it's of one of the portions of the conspiracy the argument is that the district court failed to make those specific findings to actually give your honour's the ability to review the record to know exactly why he applied the  full upwards of three million dollars worth of loss to this particular defendant mr cited the sweeny case and also reflect to the guideline comments to the relevant section of the guidelines that indicate the scope of sentencing conduct is much different and much more narrow than the scope of one accord determines guilt or culpability as to the whole of the conspiracy and essentially that is our argument that the district court failed to make those specifics findings in order to hold him responsible for the entirety of the conspiracy and then the second argument is there any question if we do look at the record from the other defendants that the record does in those cases support a much more extensive role for your client in this conspiracy assuming that the evidence in those trials are to be believed to be honest you're not i don't know my client did not participate in the trial we didn't have the opportunity to cross examine or challenge those witnesses i believe it would show that he had some additional involvement yes the government has in at least of which is what is on father testified right up i don't know if mr weber jeter testified but yes in this three zero twos that were mentioned by special agent cruz during one of our sentencing hearings he did indicate that he was brought into the conspiracy earlier however he is the guy that once they cut this stuff up he took the stolen things to the local could not calculate what my client's role was when he joined the conspiracy and furthermore he could not provide the court work counsel with a percentage of value that he contributed to the conspiracy and we would argue that it is that the which is contained within that sole overt act of fifteen thousand dollars that is significant departure then rather than two point five million dollar loss amount that was attributed to him with the though he indicates he was not applying the pinkerton rule essentially did just that and it logically follows that because his scrapping of the two thousand and two peterbilt was done a mere few days before the conspiracy was shut down if that is indeed his specific jointly undertaken criminal activity mind you the only one that the government was able to put a loss amount to in the only specific truck that they were able to attribute to my defendant's conduct and there was no further action by any member of the conspiracy after it was scrapped that fifteen thousand eight hundred dollar mark should be the last amount in which my client should be held to triple and that and e s and the testimony of the officers that your client confronted when they were attempting physical surveillance which is before this incident you're talking about and the testimony that when they stole the trailer diamond plated steel that your client kept some of it for his personal use what do we do with all of which ignore that judge if i may respond to i would ask this court to review the record in to see for those specific instances that your points up what was the value what was the loss i don't believe this court can find what the value in loss for those specific actions actually were was of all of the items that loss amount attributed for sentencing purposes not for guilt your honor is absolutely correct that would imply that he is guilty of the conspiracy but in a more narrow front when determining sentencing those actions were not given lost amounts only o you want only specific loss amounts and then you want to add them up where the judge said he these are the record shows where the judge said or not these are all the things that the record shows he did so the guy got the entire amount as what was foreseeable right argues that it wasn't forced i understand that but that's what you got there and it was forseeable so you don't assuming the judge is right about that you don't go back and then  values of just certain transactions if in fact the conclusion is right that everything was foreseeable you know i would i would say that both sweeney and united states versus jenkins united states versus orlando and united states versus meachem require that finding of what is the jointly agreed upon criminal activity and then a further analysis of this for sentencing purposes only would require that court to find what are the acts of this specific individual which it would already done and what are the actions of the other coconspirators that contributed to that specific jointly undertaken criminal activity and i don't believe the government one other question nobody's gotten to yet apparently this judge used the last table that he had prepared and that last table the gathering was available for everybody at the time of this so i think it's probably a good characterization of the record that in some instances the judge didn't say and i'm finding a b c d for each defendant so that he didn't but he's relying upon the last table doesn't that replace the words that you are suggesting is missing here in the judge's findings respectfully and i don't believe so i think under tell me why not real thirty to thirty two requires that and united states versus go that those cases and that authority requires the judge to make those specific findings in order to then make the determination of relevant conduct and reason for still foreseeability what i'm asking you is why is not that the last table that the judge prepared a find it i would argue that it is a finding your honor but it should be specifically attributed the last amounts in that table should be specifically attribute to each individual defendant there's a requirement by i believe it is from the sixth circuit from this court that requires a extent understand his argument he's obviously suggesting that aiding and abetting and a conspiracy conviction are mutually exclusive and that's simply not correct mr special agent steve jackson testified that gary weimer sr admit storing stuff on crushing stuff that's been part of the conspiracy he knew that his brother was stealing these items he helped his brother with him store things there he took the trucks apart they moved items back and forth he let his brother use rather back it's essentially a large open container that's a trailer but all of those are actions that show she is signing on to this common venture whether or not he said out loud i firmly hereby agreed to join you conspiracy the jury was entitled to infer that he had in fact signed on by virtue of his actions there's nothing more that's required under the law and so his conviction should be sustained but his argument that theoretically  betting but it also shows conspiracy that's right runner and i think jerry can infer that that he has reached his mental agreement by virtue of the fact that only over again he's taking steps to help them succeed in their venture as to the insufficiency of the evidence we have to find that a reasonable juror could not so far based upon respect for its right that's right and i don't i don't think any juror could make that finding because over and over again not only to take the steps he he admitted i do i knew what was going on and i was trying to help him that's enough for a conspiracy and i say one of the questions i move on to terence w substantively unreasonable and one of his grounds was that he had no criminal history and that's actually not correct he had full criminal history points but the judge thought the crew history was overstated so he reduced in the kernel history category one but terence weimer did in fact have some criminal history more importantly his primary argument seems to be the comparison with his father i did misstate the father sense it was forty months not forty eight months but the  equalize or harmonize of senses and when one looks at the record terence weimer was family involved in the conspiracy played much more of an instrumental role in fact he were a number of different hats he was cutting things with a torch she was transporting items he was cleaning up he was doing all sorts of things to help the conspiracy succeed under those circumstances it forty eight months of a sense of sixty months identical to what several other people who played similar roles such as earl beebe got is absolutely appropriate and certainly not an abuse of discretion with respect to the can the insurance companies be victims i think the case  clear if i understand his argument mr rymer suggesting that the somebody ate the locks the truck was destroyed and somebody paid money and to the extent he's suggesting that it can't be the insurance company because they're just a pass through for the premiums paid by the powers holders within the people who ate the last of the policyholders each of whom were paying premiums they didn't file claims but their premiums subsidize the payout for the drivers who did suffer losses now we have way more victims that's not the way the guidelines work the insurance companies that wrote the checks to the owners of the stolen vehicles are clearly victims of the law  and their questions on that issue rather than the policy holder and the insurance company will be victims for the same laws i don't think so i think that yeah i think economic reality is the insurance company is a standalone entity and their balance sheet at the end of the is going to show they either paid out on this claim or they didn't and so they suffer the loss and i don't think there's any reason start looking behind in the seeding transactions to see who ultimately lost the policy or was paid in money for coverage they got the coverage the insurance company wrote a check on the claim they suffered the loss of their the victim and there's no reason that they can't be the victim along with the drivers to the extent that drivers also had to pay deductibles had to rules had clothing had person articles on that's where i thought you were going to go i thought the law was that the insurance company can be a victim if they had a payout and even if somebody got reimbursed by the insurance company they can still be a victim if they can show additional loss which could even include the delay in getting reimbursed from the insurance company if they can show they were injured because of that that's right and all of the drivers that testified they all had personal articles in the vehicles or in the in the cabs the trailers all had straps they have giant chains and binding systems to hold down loads of cargo in the case that they had those things they have to produce them or provide them those were stolen when the trailer stolen their jackets their duffel bags they had cd players they had radios by their insurance apparently most of them claimed they were not and we the trucker usually it's not which is why many of the drivers in that table indicated that they had lost wages because they were unable to work for some period of time and that's why one of the a dollar value on some of those losses this that particular claim is exactly why we have the bostic rule if mr kirk had stood up and said judge you can't count on his victims if you don't give them a specific dollar amount and increased the last total line by line they just a corporate have said ok i'll give each a dollar and then that issue wouldn't wouldn't be here but the reality is the court found that each of these victims identified in that chart suffered peculiar harm lost wages lost personal property lost economic opportunity whether or not the court says it's one dollars one thousand dollars whatever to the extent that's an loss chart isn't an effective substitute for an individual finding a loss as to their client because the last charge doesn't say which defendants were involved in which  so how do you respond to that under the relevant conduct guideline they're responsible for if they are part of the conspiracy the problem here is a disk or didn't say out loud at the front and i find that except for anthony weiner who was in jail for part of this and robert bork who for other reasons the government chose not to ascribe the earlier losses to him before the charge conduct that the court loud everybody else was in there from the start but that's clearly what was going on that was the clear approach taken by the probation department and that's the approach taken by the court and that's what the evidence showed so that was he required to say that in which case we need to re mandate or wasn't he required and if not why not i don't think so your honor because it's clear from what the dischord said and did that that was his finding that the defendants were involved from start to finish there's nothing in this record as to any of these five defendants that they were involved in the testimony from start to finish was you know have to prove anything they don't know but when when greg rose when shawn weimer when  the statements the post arrest statements the proffers the trial testimony says this is been going on for years and these guys have all been in on it and everyone was in it everyone did this they showed up at various points they're in it and there's nothing to suggest they weren't in it and i understand they don't have to prove it but when craig gross for example says we've been doing this for years starting at two previous locations then those defendants are in the conspiracy unless for some reason i think they're not in the conspiracy so you're basically saying it was implicit in what the judge found in connection with some of the sentencing yes yes that the judge which what would be your best argument there may be the amount of restitution  out of a loss what what your loss amount that the court found that the court specifically says at the end of that shark anthony weiner is not responsible for ross is that pre dated for the losses occurred when he was in jail robert bork is not responsible for the period before the charge period and by implication everybody else is responsible for those and the quote at the time of sentencing for each defendant specifically addressed the guidelines he said each defense attorney argument that he didn't have to make the finding or is your argument that he did impliedly or as you did you meant harmless error what you're doing is that he implicitly made that finding when he said the defense attorney each defense attorney your client guidelines are seventy eight to ninety seven your crimes guidelines are sixty three to seventy eight i find an offense level twenty five from history get every one i find offense level twenty seven km history category two that that is a finding that's a finding that that's what the guideline is and he's reaching matt by adopting the chart that holds each defender responsible for the amount in the conspiracy perhaps it would have been clear if the court added a column to the chart that said which defendants are covered for this period but i think that is court's understanding was consistent with what the asian testified to which is they're all in it from start to finish and if they're all in it except for the to identify that identified then it's a pointless exercise to list each name over and over again in this extra column the court clearly took that position when it adopted the guidelines when it made the findings as to what the guy when i'm out was if a defense attorney couldn't have made the guideline finding without having previously concluded reset it or not right they were in it from the beginning and they're responsible for the whole thing that's exactly right and couldn't have said it more clearly perhaps but i don't think that there's any case that says you have to say it with the utmost of precision it's clear what he did by making these guidelines findings and again as you alluded judge mckeague what is the point of this the evidence is overwhelming that all of them were involved the direction it could because the evidence is so strong so there's no point in remaining for this empty gesture in the questions and on that issue i'd move to robert but the present report recommended that mr de but not get acceptance responsibility the court discussed it at length both attorney the court said that it was going to be about the fact that he was late because he was on a smoke break it was because as the panel recognized he would meet with a probation officer he also was honest with appreciation officer he was honest with the f b i and each of those factors weighs heavily in the fine of acceptance responsibility mr table means argument is this statement about i'm not going to take that into account came at the end in the actual imposition of the sentence when he when he denied acceptance according to mr table that's what he was the basis of the dial of acceptance because he had disavowed using his unhappiness with the defendant at that point so that the district court did not say you were late and that goes to acceptance he did talk about all of these factors he talked about you would meet with probation and there was actually discussion on two days about that issue it came up earlier and then it came up again on the monday when all the defendants were sentence the court did not and when he was discussing acceptance at no point did the district court say and i'm so offended you relate coming back to court what he said was you would meet with a probation officer that really is those three steps here the guy's late the judge chastises he then makes the finding on acceptance you say he didn't refer to being late at that time the court was deciding the question of acceptance but it was a passing reference in conjunction with the bigger issue which was mr burris aware said look he pleaded guilty and the district court said well clearly the morning of trial the jury was here and that's untimely and that is a factor that the court can consider my recollection is that there was a reference at that point to the fact that mr boat was also late in returning to court but the discord went on to talk about the more important factor which was burke didn't meet with the probation officer and that's a significant issue for the district court to describe make clear at no point to the district court say you're being late returning to court is why i'm not giving you acceptance what that is quote said was probation officer you're not candid about what you did you're still not being candid about the extent of your involvement in this conspiracy yes you pleaded guilty but you plead to go to the morning of trial and that may not standing alone be enough for me to conclude that you had acceptance that you accepted responsibility for what you've done in conjunction with each of those other two factors that's more than enough this court has to give special deference to the district court because of the importance of that face to face contact and there's nothing in the record that would suggest this court was acting irrationally punitively or in any way unfairly it was about the failure to meet with a probation officer it was about the failure to be honest about what he did and both of those factors were discussed the previous week so mr jones first raised this issue the previous week when the agent was testifying and the district court was dealing with factual issues and at that point the failure to come back in a timely basis from smokefree hadn't happened yet the district court the previous week had already set up for what you did meet with a probation officer if you're not being honest about what you did you pled guilty morning of trial all of those reasons  in the record and talked about as reasons why mr deployment would not get acceptance of responsibility at that point we said why don't we wait let him alec you and the court can make a final decision at that point but it's not true that he was late from the miller suggests that chandra but was only involved in a couple of occasions and that's just not true again greg rose said it couldn't be more clear they were doing this all along they were doing it at bill city oddo they were doing it and sterling this was a pattern for years shawn weimer testified that john was the first person they went to to help he was a twitcher he had skills that they didn't necessarily have and they knew they could trust him to keep his mouth shut because they've done this on previous iterations before mr weiner went to jail on his most recent tour john was involve some start to finish mr me just while he was on camera a couple of times but that's not the standard the testimony may clear john the book was in it from start to finish and because he was in it from start to finish it's fair to attribute to him all of those losses mr mean house keeps talking about what was forseeable if you are personally involved than in the guidelines you never get to reasonable for see ability that's a red herring here because john to blow is being held accountable for his own role in cutting up the stone trucks and trailers he was there he was cutting wire he was taking off the sheathing he was cleaning the pits of the vin numbers and things of that sort he was involved in a substantial extensive way he's not being held accountable for things that other people did that may or may not have been forseeable to him he's being held accountable for what he did i mean if he only worked on five vehicles and they have no thirty five vehicles i mean he's held accountable because it's reasonable foreseeable that the conspiracy is more than he's actually worked on himself right that's true you know but there's nothing so foreseeability is as relevant as and i don't think it's necessary here and the reason is that  conspiracy to work it only be held accountable for his actual you know conduct that he has actual participation even though he knows it's it's going to be more than that that's all i agree on i was just suggesting that issue mr me this is raising you don't need to go to lie to him ok you don't need to get to that because of the guidelines subsection a is personal acts and conduct of the defendant and then b is acts of others in the joint undertaking we don't have to get to be we don't have to get to be heard but the problem of skipping he is that the judge didn't make a specific finding here with this defendant with somebody and with some of the others that he was in fact involved in every truck from the very beginning it's not explicitly make it funnier and i think he implicit made that finding and the judge did say however frequent he was there but that was not a finding by the district court that was a response to mr me saying but he's only on camera five times and at that point that his court said well even if that's true he's still responsible under the first reasonable for c ability standard but that was not a finding by the district court that was simply a response to mr me ha suggesting he can only be responsible when he's personally observed cutting of a particular truck but here under either a or b frankly john the boats involved from start to finish he's a cutter he's torching vents he can't possibly suggest he didn't know what was going on or what the scheme was about and in light of sean weiner's testimony there's nothing unfair or incorrect about holding john boehner responsible for all of  mr brutally is focused on the fact that i'm a junior was in fact only caught on film in possession of stolen property on that one day when they took the identifiable pieces in early february the problem for mr burley's argument is that his client was a part of the conspiracy long before that his client admitted that he helped shovel for example shovel there was a trailer full of aluminum shavings just cut up very small pieces of aluminum and it went on for days shuffling they tried to get to the front loader and they couldn't there was so much material they didn't know what to do with it and gary why would generator admitted he was there helping to put the aloon shavings into individual sized boxes that they would then take ok well i'm a junior truck loads to the scrap yards according to his own father repeated his father said but he did what i told him to do that was right i would have him take it so the father says i would have him take these stolen items to the scrap here so it's simply not true that gary why i'm a junior was only involved in february  involved again start to finish he may have been the first one in but he was in the wrong there was specific evidence that talked about he was at the diamond plating he was working at the sterling street location because he was primarily at the consolidation but he was at the stern street location and nuff that it's a reasonable inference that even when he's not personally handling it he knows what they're doing it's within the scope of their joint enterprise and carry one w involved in all of the items at the concert the consolidation where there crushing things they're storing things there cutting up pieces and taking axles and parts of the semi trucks and using them in the items a location each of those acts puts him in the middle there's conspiracy and so even if there's a particular theft it has many identified where he didn't come to start a location it's part of that the joint venture and opinion that is cited in our brief even though it's a civil case the underlying allegations were criminal allegations of fraud against a bank officer to assist a general contractor in defrauding an insurance company the jury returned verdicts finding the bank officer liable for aiding and abetting the fraud and conspiracy to commit the fraud and it's significant because on peel this court reversed the jury finding on the conspiracy theory affirmed the jury verdict with regard to the aiding and abetting liability and the court stated that while the bank  certainly assisted the contractor in the fraud the court stated it was unreasonable for the jury to further infer that the bank officer agreed to join in the fraudulent scheme you know i think as i understand it is you have a conspiracy and there are a bunch of overt acts you could be theoretically an aider and abettor for one or two overt acts that doesn't by definition make you a member of the conspiracy th you claim all your guy was an aider and abettor to some of the things that they did but i'm not a member of that considering i would say that sums up the argument there is a distinction and we think it should be drawn and disc ace thank runner up during my presentation if i said that mr tenet's weimer had no criminal history i was incorrect that's not what i meant to say it very minimal criminal history that's where judge carr reduced his criminal history level to one there were very minor  transgressions mr hurley suggests that i waive the issue of this to the inclusion of loss of mouse some of the victims i did not waive that i cited specifically to the transfer page where i objected specifically to victims or the truck owners clearly they are they were the primary victims each of them sustained a loss and were properly counted as victims my argument to the court is that an insurance company voluntarily standing there contractually is just not a victim you likewise i want to disagree with the characterization that my client mr robert bork where you did he arguable the wosm determination he had a chart with a different number than is in the church that we've been talking about here that he presented the judge the judge did not directly rule on that at the sentencing hearing itself he said in that instance the judge asked him what authority he had for the information on the chart and he didn't provide any n specifically say which blossom out for these various trucks he was challenging that rob well the church lists specific vehicles  particular trailer storm the government church has a value mr you're saying he was challenging everyone where there's a different value well he he he also had i understand but then but then the judge said what your authority for that what what what what is your basis for those amount and i don't think he ever answered that eighty he had retained an expert who had done some you know blue book is the right word but had gone to a third party source in government conceded that yes if the expert came to court to testify that he would substantiate those numbers so that that's the story of what he was just picking numbers out of your he had he had an expert had a chart and he provided that to probation and then basically for whatever reason the judge didn't accept this are i think the difficulty that we find today is that the court the da make specific findings are seen as government admits there's an implication that when it comes to sentencing when it comes to incarceration is to court specific findings on those matters on that testimony and its conclusions and we don't so i think what we face here the government brings up bostic here that if the objection i don't think you're understanding the point you had to have made objections and if the understanding was one objection then applies to all that that's fine that means you did preserve it in the sense that you objected it now we don't hold you to complaining about what the judge does with that up front because he hasn't done it yet so the judge then imposes the sentence and you say the judge is obligated to make certain findings in connection with imposing the sentence right agree or bostic that requires you to come back and say we objected when you ruled on the objection judge you didn't do what you were required to do you're supposed to do that at the end so that if there is something that was correctable on the judge's part the judge could correct it if you don't do that then that's one plain or applies you see the difference i see the difference  are junior the government focuses on when he entered the conspiracy it matters not for sentencing purposes is my argument that goes towards the culpability of guilt for sentencing purposes what matters is the actions and then the last amount that the government chose to present to the court and to try to prove by preponderance of the evidence i ask you the dunn plating the government brings up what was the last value that it is not reflected in the transcripts the additional scrapping that he did that were minor aluminum shavings what was the last amount of that they're not reflected in the transcripts what was he a part of or his other coconspirators a part of it was advancing his own jointly agreed upon criminal activity that is able to be identified by this court and i would submit to you the only one you can attribute if you put yourself in the district court judges position is that one overt act of fifteen thousand dollars i specifically direct you to special interests testimony thank you all this is a complicated matter obviously it's an extensive whether conspiracy or not it's an extensive enterprise shall we shall we say so the court notes that all of you were appointed under the civil justice act so we appreciate the service you provided your clients and to the court will go back and give this all due consideration and reread the things that you wanted us to read so we appreciate the way in which you cooperated  approaching this this morning the case will be