imposing that discretionary award of hesitation and for that reason alone this case should be mended for the making of those findings well except the mandatory victim restitution act applies why would we send it back for the the rights of the government to the extent that mr turner no longer has the opportunity for the judge in this case to find that he does not have the ability to pay under the discretionary budget but it's but if it's mandatory there's the ability to pay they get a difference and it says because this is a conspiracy for a title twenty six tax offense and we're going to find the for mandatory restitution apply ok and so is this correct it's not correct because this is still not a it's a conspiracy but it's not an offense against property the taxes that were unpaid were never the property of the united states never within the united states control ownership dinning in that then we're going to bottom line is we have to decide that question yes ok and we're capable of doing that because the question of law we may decide in your favor but there's nothing to say that we can't determine that well it's a kind of error that was not raised by mr turner mr turner challenge post everybody's agreeing and you raised that it's so the errors in front of us and as a purely procedural question if it's a question of law which of those acts of yours is a good  position the side that has this work why would we send it back isn't that a waste of judicial resources and should be decided it's a question of war because i don't think that the court if the government didn't challenge it  mr turner should be obligated to pay four hundred thousand dollars in restitution that's the issue you you you file an appeal on that question you said he should not be entitled to it because there was no finding of his capability to pay government says yes but even though we didn't raise it below he's obligated to pay it under the the minute through victim witness act then when we have to decide that question i see why it's not before if you brought it up it would be different if you hadn't raised restitution on appeal and then they appear before us and say oh by the way but once you raise it issues there what else i mean we have a recent case try and group  we're talking about waiver and said you know where there's a need for a factual record you know maybe we will find that waiver really is precludes it but here if we were to do what you say we would be doing what i said originally we'd be saying oh ok we won't consider that legal issue we'll you know as to whether it's mandatory we'll send it back for a finding on you for find is a factor in restitution that doesn't apply  we have to we have to look at the lawsons you presented the issue right i think what my point is that i think substantively even if the court were to do that the were to consider this issue in the government's argument that we should prevail as a substantive s and i understand the court chris position on that but i wanted just that the substantive issue is important here because the case that the court the lot that the government relies upon this narrative case out of the ninth circuit there is one sentence of analysis and there's a citation to one case that he says is not a conspiracy to commit tax offense it's not restitution that is ordered in a client conspiracy case or in a tax case at all the case that is relied upon by the ninth circuit america the only case creditors who had lent money to a debtor and the debtor had hidden assets so as not to have to be pay but it was clearly a property offense in the way that this case mr turner's case is not and i'm going to get you to turn not the government needs to introduce let me ask you this just make sure i understand what is the force what is i understood you to not be making an argument about material facts it's not a question of this is about serial right that's correct and i didn't well it's it was it is an issue to the extent that it ties in with the circumstantial guarantees of trustworthiness and think we're going back to that one so your argument is you know seven doesn't apply because there  what's what's lacking if you've got documents which are helped by person who's got the most interest  i think inherently in the in the documents and we have established exceptions of city history when one of the things that this court can look at is even though this doesn't fit exactly within the business records exception what or what are the reasons why we allow business records and without the person who created the record getting on the stand testifying and those are things like we know that the records were made in the ordinary course of business that this is how the custodian or the records were made  kept in the ordinary course of business we don't know anything about that the person who created the records here in the i r s agent who through whom this records were admitted didn't know anything about it don't we look at the records of selves we can then wouldn't there be some speculation on on your part as part of the record or some proof that these types of documents are regularly forward or made up or i mean they they look like  theory that you're arguing for one in one in which people are actually rewarded not just with substantive benefits but with evidentiary benefits if they secrete their people like that because you can never satisf i think there are other ways too to get in the information i mean i think the question here that the court has to decide is whether these were exceptional whether this was the type of deception should be rarely used but there were extraordinary here in teeth of trustworthiness here and although act well i think if you look at the documents themselves they're not you know a number of monthly statements that are in consecutive order that have the in disha of the bank for all of these different months there select documents that are hand written on on top of the documents that are partially covered by post it notes that are incomplete and so we really don't have sort of a full accounting of what happened in these different accounts even if we were to believe that these were records produced by the bank so do they have the same very few of trustworthiness that a dying declaration has or that a statement against interest has them and they just don't the government didn't have enough what's your best case that something like that is required i was somewhat surprised that the case law in this area independent on charge of conspiracy here there just isn't evidence of that here what we have is agreements a documented agreement between mr turner and mr libido to sell the book that that is not illegal activity that is not a conspiracy can the testimony that you're objecting to be used to establish a conspiracy without other evidence of the existence does fraud or conspiracy know and that's in the rule itself the will itself so that you can look to the content of what you're trying to admit that cannot be the exclusive basis for a status you conspiracy and that's exactly think what the government has argued here is that most of their argument is based upon that recorded conversations and so ok are you saying that there's no other evidence of of the broader conspiracy no and the only pointed out the governor you're show a conspiracy to recruit people to become members if we find that there was would the evidence you're objecting to therefore be admissible if you found that there was an unvarnished we found that there this broader conspiracy which allows you to admit the conversations between the alleged coconspirator lotto in the irises there are a variety but let me point to three in particular  encouraged agent rivera to participate in the or in the meetings of york ms ation and three which i think is perhaps the most damning mr will veto told the undercover agent  scheme i think that's a page i think we discussed at that page fourteen of our brief i could be  wrong but i also want to emphasize that the standard review for this court is clear error the court has to determine whether the district court erred by finding by a preponderance of the doubt it's a very high standard for the defendant to overcome that defendant makes much of the fact that that his office manager and the iris case agent weren't aware of this agreement but one of the points of conspiracy is to keep it secret and the defendant made clear how important secrecy was by saying you don't keep records for more than three months painting in cash in order to contact me after you buy this book you have to have them and they just pacific number of the book before i'll talk to you so secrecy was very certainly mr leader could have said i have nothing to do with any of that contact the defendant directly and the conversation he didn't do that he carried on several long at length conversations about responding to questions that the undercover agent hat suit and telling the undercover agent as i mentioned before that i was involved in sales of a couple of others too couple of other friends and i was involved along with defended him setting up the probe setting up the the this deciding what proper to a certain implement the scheme what to do in terms of how to make it work for the for the people to whom it was is sol was there any limit instruction as to how to the jury should consider this evidence in other words if it had to do with an a different conspiracy you know was it necessarily harmless a jury hears all this stuff and then they say well live ito's you really you know he's really in on this and they're overlap in the conversations between defendant and the undercover agent then that provides some of the same material that is in the undercover tapes obviously it's not going to be totally a total overlap but there's the restitution argument mandatory restitution and say listen you know you had record now the government did not argue that just that that the m p r a section forty six sixty three a c one a to the law i applied but it was clear from the record that this was a title eighteen court said it didn't apply mandatory did not apply i don't recall but i would not be surprised if the court went given the view given that the parties were arguing that the it was a voluntary act certainly how do we know that for the both sides here are treated like i don't believe i mean i think the restitution i think would be the same  that anything we can find directly on point in terms of whether there's a difference in restitution calculations under the and the ira and the veto it's not something that that i was prepared to address i didn't i didn't by just just before i before i do that just a couple things on the restitution of tax dollars are government property just as much as the assets of the government purchases with those tax dollars and i don't think anyone disagrees that hard seven cases in which this board has addressed whether or not three seventy one counts might qualify under the mandatory victim restitution act now three or four of them are unpublished  they mostly deal with bank fraud one involves whether or not someone is to deport his deportable for an aggravated felony you've been already today we won't go back one involves the difference in the statute between the government of the virgin islands and basically saying that there's no equivalent with what we have in in the federal system and then there's a fourth case which fourth basically just generally talked about property but in terms of death defining what qualifies as property i'm not aware of anything big that deals with other than the there is the ninth circuit case that that we cite in our briefs that opposing counsel has has a hundred said bank fraud probably is parallel we certainly argue it's very similar i mean it's centrally money it's pretty much the same thing it's so nurses taking that christ actually taking their money here is refusing to pay them money but we have it's money that we have to which a district nurse to trauma nation of whether or not these records have an equivalent circumstantial guarantee of trustworthiness is a very fact specific finding and it's only reversible for clear error and again i certainly would a little bit of a conundrum from the the the supreme court seems to say that when you are deciding on trustworthiness there's a confrontation clause aspect to it and when you're trying to satisfy that you've got to be looking for inherent trustworthy that is something other well obviously the supreme court has not decided that rule eight zero seven is invalid it's will if it still exists and you need to give it it needs to be given effect  think to the extent inherent to the extent that the requirements serve and have an inherent requirement i think i guess the closest here would be the corroborating bank transactions i'm not sure that that really is is inherent let me ask it this way if we were to if we were to say well we're going to have to look at circumstantial and inherent carry through this what would you point to as parents about the bank records that that would show that they're trustworthy and that we should be worried about compensation there were difficulties in terms of this was the best evidence that was available i see that my time's expired but we'll give you another three minutes and focus on what's in here i mean i understand your point about they talk about things that that veto has requested them to do i think that's probably as close as inherent he gets something that the fact is that the bank is acting in response to what is apparently a request from the defend those circumstances they are circumstances but i think the fact that it's inherent i'm having difficulty to be perfectly honest coming up with something that is inherent given what we have to work with here speak a couple of points i want to start with the restitution issue the government says that the evidence outside of the recorded conversations themselves that show the existence of a conspiracy is that mr libido submitted undercover agents need to mr turner and recommended him for membership the site that the government has in its brief for support of that proposition is a letter that was that from mr turner to the undercover agent but i think it's important the recorded conversation  was mr turner didn't say it's a threshold matter who is referring you tell me why you're calling you where you got your mean that's not that that's not what happened the undercover agent called him mr lived mr turner didn't know who he was he said i don't have you in my system he took down the undercover agents name and phone number and contact information undercover agent did later in the conversation volunteer that he had bought his book from dan libido but that wasn't a sort of precedent to mr turner discussing first american research and organization with with mr with the undercover agents i think that's important that the information that's outside of the reporting from selves have to be viewed in context because it's it's again not a property that was actually within the control of of the us government at any point the us government says we have a claim to that money and i think that changes this i think the question is whether it's quote property well it's not money that's the issue if you look at a good in algae a way to look at this might be the general theft statute eighteen u s c six forty one which is theft of government property pay the bank if if the if proceeds or something belongs to the u s government and then they are taken wrongfully or the u s government pays out money to somebody based upon a fraudulent skeen that's a that's a proper fact that something that could be prosecuted under each of us you're money that i should have given because in the end isn't the government out money whether it's money i took from him or money i withheld from him they are i'm not disputing that the government is is our money it's whether or not this is an offense against property of what makes the one where i take the money an offense against property and the other or i withhold that property because the the money was never the property  let me like in the bank doesn't say i came to the same property taken and technically all of these are offenses against an entity but i don't think it's the entity that's the issue i'm not disputing that the i r s could not be a victim under fact right in the bank of the in the bankruptcy case the creditors or our people are who are big it's whether or not some amount of unpaid taxes undetermined or are the property of the us before