very consequential and to boil it all down into one idea the government's position is that when dealing with credit card fraud cases all it has to do to ad up the loss amount using application of three of one is to identify how many cards were involved and that's it or card numbers right like that the defense has this language that the sixth circuit focused on cards so you know devices i should say so why doesn't that argue in favor of the approach that is true or not here there was actually something the court addressed the nights are progressing  portfolio were going to work and which ones were so why isn't the intended laws all of them even if some of them in the end proved not to be usable that actually might not i've thought about that quite a bit your honor because it's an interesting issue on the application of reason here with the government proceeded on was the three f i five hundred dollars presumption it was kind of a proxy for the for figuring out laws it's not a situation where the government had actual loss where they knew exactly what was gotten out on each of these accounts they also didn't have intended loss because they didn't know what he was trying to get out but they do know he has lots of access to vices well they don't have a lot of carts and that's i think the core issue here is  not equal access device and that's what the united striker was talking about an honest so but have a day later kind of back off and that they realize oh you know actually these cards maybe are all useful in sound sash or another and i guess in my own mind when i cross reference that with the fact that intended loss isn't enough it's hard to see it as especially with this fairly conservative approach they they pull it down to one hundred thirty one thousand some dollars  to withdraw funds from the cards i'm not sure of what else you think he has or that does the usability question are and that's somewhat on yes i was talking about because it's entirely possible that we've got a situation where  the defense was saying here is your only say force used eighty four cards forty two thousand that's not issue that's that's not a problem but these other cards we don't know why they didn't work we don't even know whether these were even real card numbers that and that's the issue with this case is because of the way that the government proof is put together it's based on essentially wiretaps of people talking about things we don't know a lot about what the actual things were other than the fact they were numbers that were put on cards so why isn't the case that i'll just take expired i mean that any expired card you wouldn't know until you're actually trying to do something with it whether you could actually extract some money based on the use of that card and yet the guidelines include them oh yes like you want there to be like a number by number card by card account by account test and i don't see that strict a requirement of time i think it depends on it's it's a bit of a case by case basis your honor i certainly would agree that under on his own under his nasa gets those expired cards can be usable but we don't know when and how and that's that's the core problem in a lot of these things honestly talk about that especially where cases i think it was looked oh i can pronounce them devise devised where they talked about something similar like that expired cards with voter cards things like that they may be usable for something but that's evidence that the government has to put in or the parties have to agree about it i mean it's entirely possible that you know if the government were to put in evidence where the defense could agree on that and say yes of course these under these circumstances are using orders or circumstances but that doesn't  services and that this is the language that i knew so was looking at when they interpreted the statute yeah but the question is whether you means working or there are just the kind of things that are used to that end that's the problem under the ether three definition which says that it includes devices that are expired revoked or cancelled or certain in other words they will not actually work and that's the question of why they can't they've will not necessarily work if you put them in a machine and doesn't spit out money but they can be used for other other things and that's what the bosnians talking about is the and even on a so when it went back they government actually put in evidence that said these particular cards this is what they actually are and i don't remember offhand whether they were expired or anything like that they put in evidence that said yes these things can't be put in a a t m to get money out that they can be used to do x y and z and that's where the type of thing i guess that's the statutory interpretation question other means of that account access that type of thing you know it's not your bengal painting on the wall it's it's it's a card or an account right and that's that actually brings up an interesting point is that's part of why we need a little bit more proof in some search some situations because we may not necessarily know what is this particular thing is i don't want to say access files because that's what i'm talking about we're talking about we need to know the bit more about what this thing that's a large part of the dispute here was we don't have a lot of information about what the vast majority of these things were we know that there were basically the parties agreed in advance that there were two hundred sixty two  up to one hundred fifty one thousand and as the court knows and as i've talked out of the cases the the issue is lost about dr sensing it's just like the drug sales of the drug amounts drive sentencing and that's the starting point if there's another question cancelled and that is exactly what we have in this case how do you think there's a conflict between the news so and loan or do you think that these cases can be reconciled i believe that the cases can be reconciled your honor and i think what the district court said about ye so the sentencing hearing is pretty apt the court said that what the ninth circuit did and you know yes it was kind of mixed the intent and the access device requirement and said in this particular case government in the ninth circuit case you don't have it and if we look at what the ninth circuit had there they had a spreadsheet that had a list of credit card numbers that had been expired for over three years and it said there are what a call to the government for and this is the quote from and yes it was that the government made no showing that the defendant in that case ever took steps or attempted to use steps or to use the expired numbers or that the defendant possessed them prior to the current expiry we have both of those things in this case first we know how these here there actually were steps taken to use those numbers in an attempt to obtain cash doesn't matter whether steps were taken for all of the cards or just that they were sitting there waiting to be used you're out of the  guidelines allow for an estimate but what we know in this case and it's it's in the prison is investigate her work at paragraph forty one the defense counsel knowledge that for the purposes of calculating intended loss there were two hundred sixty two credit cards attributable to attributable to that offended which is where we get that five hundred dollars per card member which gets us to the one hundred thirty one thousand dollar loss amount and based on the concessions made in the plea and along the second prong as well of what ninth circuit said would suffice as bruce was that the defendant they were looking for proof the defendant in that case possessed the card numbers before expiration well here we know that coast beamers and again it's through the admission gamers obtained these numbers through either skiing or through either skimming or obtaining them from computers where the numbers were housed so at that moment in time they're certainly access to vices because they're being used credit card numbers had expired three five years ago because under this statute that and proof that they were still in some manner and your honor i would answer that question the same way the government in oh yes it did and that thirty five year old carts with no other proof would not be accessed devices because i think that in general as the district court on statute seems quite plain that they are why do you give away the statute the language in the statute is favorable once you give away the language of the statute and you're just asking us to make it all off as we go why should we make it up your way and your honor i would not ask the court to to make it all right so stand on the language of the statute and say of course it would be stupid to prosecute for a thirty five year old card but i do during language sometimes require stupid things once you give up the language of the statute you're cards so under that plain language of the statue your honor is correct the thirty five year old cards would be in fact access devices i think what oh yes i was looking at though was more of an intent question was there and in that particular case where those cards were not thirty five years old there were only three years old it's almost in a ten or irrelevant conduct question was the person in that case intending to use those in any way such that they should be evaluated included in the conduct and i think that even more so with the thirty five year old cards that would raise the same question but i agree with your honor under the plain language of the statute those are in fact counterfeit access to vices i frequently remind people not every part of every statute has to do all of the surely you know it might be an access to files there might be some other issue or the government may just have trouble after thirty five years putting together a case that you'd like to take to the grand jury in your honor i think like the statute of limitation and your honor i think one of the things that would play into that would be section two hundred twenty nine a itself because there is an intent to defraud requirement in the in a production of a counterfeit access device or the transfer or use of an unauthorized access device so i think that would point to as well as the statute of limitations and limiting that kind of prosecution on such old credit cards or or access devices but rather if you look at what the night circuit was looking for and yes to i think we have those things in this case and under the plain terms of the statute these were in fact on authorized access devices they were obtained through theft they were tamed through fraud and mr posse and his co defendants attentive to use those to obtain felons for that reason we w did as well the issue is not whether or not a thirty five year old card falls within the statute because it says it's part of a very few like that the question is what quantum of proof is required to be able to prosecute using that thirty five year old card and  said was it thirty five mill card might be an access device but we require a little more proof to see how such a card might be used and that's overall may my main point in this case is there's got to be something more when it's more that with the something other than just being used if there's no further questions i see none so thank you very much and we appreciate your tempting the appointment in this case it's events and thank you thank you ought to thank you thanks as well t government will take