recruited mr gately and because he knew how to run a computer the extent of his knowledge in this case had to do with out of print checks off of a computer checks that were paper that was the standard of analysis or the way to analyze the case for the court is to to look at whether or not there was especially complex or especially intricate systems in place to conceal or to execute this type of offense as it pertains to my particular client mr gately many of these many of the work much of the work that he did was done either it is mother's kitchen on her computer or later in the basement of mr k parts home is the duration of this game your honor mike my client's involvement started in two thousand and seven or eight so his involvement was approximately seven or eight years your honor honor so he was looked at in and used quite frequently by mr k part but as it relates specifically to this fist dictated means analysis and looking at the intricacy of it in my client's involvement it was a matter of just simply taking the information that was provided to him and then plugging in into a program and printing out some checks there is very little information indicate that he actually  utilized already did any kind of changing of any programs or anything like that it was simply just a program they purchased at the store this wasn't a one man operation though it was not it was coordination between the various defendants who were at their order for again looking at the analysis of the court the court should look at the defendant's role whether or not he recruited accomplices and the extent of his involvement in the planning and organizing of the scheme a hit on a few things on the planning and organizing we submit that mr gay was simply a somebody that received information plugged into the computer and printed out checks is recruitment there is indication of some minimal recruitment but those were what i call low lying fruit you know on in those would be people that he knew people that were looking for work people that wanted to make money and he simply introduced them into the system but it wasn't an active recruiting process on behalf of my client so i think the court the district court had the opportunity to impose a lower level and handsome in this particular under the rule and you know what's our view standard for i believe that is clear and then with respect to the obstruction of justice i believe that as well as a clearer analysis i would just submit to the court that there was no threats that were actually made in reviewing the transcript and the a listening to the telephone conversation in response to being to my client being told that somebody had talked to defendant gabor my client's response was simply ok the government provided nothing to the district court to indicate that my client actively sought out to interfere with another defendant's testimony in the case and so we believe that adding a two point and han two level and handsome i'm sorry was inappropriate of the district court and i believe i'm on a time thank you larry when you say the response was ok are you referring to text messages or conversation it was a conversation and then his response was the word ok from this court about the preponderance of the evidence standard that applies that is that the government's burden of persuasion and calculating the amount of the loss u something let me set the table for your honour's in this case my my client and a straight pleaded for substantive counts one conspiracy count for substantive collets were all in the spring and early summer of two thousand and thirteen there was the case was hotly litigated and at a certain point in time judge to a due to and i'm decided that he wanted to have an evidentiary hearing on on the various sentencing objections so that was held and i believe my in this manner quote and this is some agent speaking about this exhibit six quote this is the last schedule that we prepared during the timeframe  which we believe mr so most of all was involved in the conspiracy and this is also sorted by date now it's interesting if you review the evidence you're hearing transcript scripting of this now this this exhibit six had fifteen hundred fifty seven entries and and calculated about seven hundred seventy thousand and change in it and an actual loss my client mr samosa all was tied to six of these fifteen hundred fifty seven entries the four transactions which tied into the substantive bankrupt bank fraud council he pled guilty to the ones that were that occurred in in may may in june and july of two thousand and thirteen and also two others which are which are actually scheduled out the all of the only the only two that i found he was even mentioned by name and i and i exhibited that is as exhibit two and in the a done them now these these particular entries were for a transactions in two thousand and seven and two thousand and eight so their own exhibit has got a hiatus between two thousand and seven and two thousand and thirteen and we know why because mr samosa wasn't wrong he was in north dakota and he was also i believe in worthington minnesota for a now while we understand that the preponderance standard may not be a high bar it's not it's not a low one either and what he is supposed to do with that with an exhibit like this sentencing the objection is also lodged in the in the pre sentence investigation report of at the end there and i believe there may have been some other briefing so well is your argument that the government didn't prove what was in the exhibit or is your argument that your client should only be accountable for his own specific transactions that that ultimately is what do you do with the relevant conduct guideline in the the law this isn't the preponderance question this is a legal question but i don't call it a bull for all acts of jointly undertaken activity that  reasonably forseeable to him and taking him further into the activity well and which is the correct standard but but when you're not around i don't know you know how you can reasonably forsee anything well there was evidence that some of these transactions showed on a cellphone that was found in his possession not you don't have to be physically present to be able to be involved that could be but but he was also quite a ways away i mean far going we're going to distance is not the criteria that probably not you know well be one thing if you i thought you said he was in and out meaning he would go for a while that worthington or fargo then he'd come back i think if the judge well he was in and out but it was reasonably forseeable him that the conspiracy was ongoing even when he was out of town say why would that be clear air well because for one thing because they're there the government's proof doesn't the proof in terms of the transactional prove doesn't  good morning may please the court little bit about the preponderance standard the court mentioned the relevant conduct guideline and much of the evidence that the government sought to admit mostly through this summary exhibit with really virtually no foundation most of it was brought in under that relevant conduct guideline there were so you arguing i also still wasn't clear whether you and your colleagues are saying because there was insufficient foundation the amounts in the exhibit are not proved or whether you're just saying yes they were proved but they shouldn't be attributed to my client they weren't proved and they should not be if they not connected to the conspiracy or to the defendants that were at this sentencing hearing i think we would in the event that this case had gone to trial then the government would be would have introduced this evidence to prove the conspiracy and that evidence would be then before the court but just because we didn't have a trial doesn't mean we can skip that step when we come to sentencing and that's what it appears happened there really is just a dearth of evidence that objections were made particularly when the enhanced loss amount came to everyone's attention for the first time in this p s r indictment references for the aggregate amount of loss for all of the defendants something like one hundred  fifty thousand dollars or thereabouts that amounts to that that my client expert witness was able to reduce at trial for for an actual law was closer to forty thousand dollars  the amounts that are out there are really really vastly different than the evidence that anybody could possibly pull from this record but the relevant conduct guideline is interpreted by the district court in by the approach i think that's  d by the government here which is a very liberal approach that it's almost as if there is some connection somewhere and then it would be enough for this conduct to come in under the guideline and that was how all of this evidence with virtually no foundation was gone down to the actual loss and attributed to these defendants i would direct the court's attention to the fact that the focus for the purposes of relevant conduct is on each individual defendants criminal undertaking and the laws forseeable in light of that particular undertaking so we're not looking at for loss about relevant conduct and last amount purposes all of the conduct in the conspiracy laser focused on the conduct that had something to do with each defendant they cannot and will not all three of the defendants here were held to be attributable to this significantly enhance that's attributable to this summer and the agreement yes ok well my client's case is a little bit different because he moved to he asked the court to withdraw from his plea agreement that the district court in that hearing inquired of him you know what what's the issue here he was upset about the sentencing stipulations that were included in his plea agreement and the discussion that he had with the ok for you to argue for a lesser amount now the sentencing stipulation in the mountain or in the plea agreement will matter for the purposes of restitution there's a constitutional concern there because if we go over  the mound that's that he agrees to there which was something like four hundred thousand for yeah i don't know if it up and i had something around that range but less than seven less than what he's actually been cited to there's a sixt the most important part in this i think that restitution and the loss amount kind of come together here because the court did adopt the same amount for actual loss amount for sentencing and hansen purposes and for restitution and we know that those mean that the testimony that we had from the special agent on the case was did you personally review every check i did did you confirm the checks and the schedules had the right amount yet in the intended and actual losses yes and that they are connected to the conspiracy gigantic legal conclusion here being made by the qs agent yes they're connected to the conspiracy that are evidence that's the evidence that connects this for relevant conduct sorry i wasn't trial counsel so did we have time to cross examine the case agent i'm certain that we did i don't have the entire transcript in front of me but i will take a look at that may please the court and good morning your honor and morning hopeful david can reckon the half the united states your honors i'd like to take the issues in roughly reverse order from the way they were presented to you this morning and start with last amount given it is common all three opponents and then work backwards from there with respect to loss amount i just like to take perhaps a half a step back and and discuss the framework that applies to jointly undertaken criminal activity for purposes of relevant conduct there is no question here that each of these defendants participated in a conspiracy there's no question that they each by virtue of their plea agreement admitted that the plea that the conspiracy extended from at least two thousand and seven until twenty thirteen and there's no part or no question that given they all pled to the indictment that they admitted to what the nature and scope of this conspiracy was with respect to example manufactures runners recruiters bank insiders being involved in the conspiracy what matters for guidelines purposes is once you have jointly undertaken criminal activity and every single appellant here and made it that they engaged in jointly undertaken criminal activity what does a district court look to to decide what the relevant conduct classes are and as this court knows it's a three prong standard or tast what was the scope of jointly undertaken criminal activity by the particular defendant was that activity in furtherance of the conspiracy and was from the defendant's vantage point that the relevant conduct losses would accrue as a result of the conspiracy that was the question before the district court and that question was not answered merely by submission of a last charge the contested evidentiary hearing in this case was over two hundred pages of court transcript there were something like eighty or ninety exhibits admitted by the government it was not limited to three lines as of a transcript with conclusi witnesses on at this hearing the district court had had an ample factual basis here to draw the conclusions it did and they certainly were not clearly erroneous under the preponderance of the evidence standard on the chart counsel said earlier or suggested i guess you could say that the only evidence showing that all transactions were part of the conspiracy was the agency saying they were all connected conspiracy  you said they were not in the exhibits but i gather you didn't introduce the underlying documents as the chads actually on the chart no your honor and certainly as the court knows first time reach our purpose particular one that's one objected to not of the activity they undertook was that for example with respect to gay and this this was demonstrated first my talk about the nature of the evidence which i think is a response and part of the court's evidence what what the government  demonstrated by exhibits and testimony was that the agents in this case executed search warrants where they gathered computers cell phones documents from the cars and residences of various defendants they conducted trash pools while the investigation was active from which they recovered check stock checks that had been used in the conspiracy facsimile signatures of victims names checks that had been ripped up in the course of manufacturing a statement of mr canaday as a codefendant who attended those meetings and indicated that at those meetings part of the scope of jointly undertaking criminal activity discussed were things like giving up the proceeds the reliability of coconspirators and  the use of runners and the timing of various transactions there was also underlying documentation documentation admitted as to some of the transactions certainly not all fifteen hundred that were involved in this current conspiracy and as the agent testified the reason a particular transaction was included the last charge related to identification of the runner as being involved in the conspiracy and using transactions associated with a runner runner identification of accounts that had been used by gay fillion others to manufacture checks and tracing the losses to those accounts and many an identification of coconspirators and bank insiders who had compromised account information and handed them over to the coconspirators text messages were also met with just describing there which i actually can't recall the name it was the first that the government called to s transactions charge absolutely your honor and in fact there's explicit testimony from the government that it that they did that what was not included on the last chart were transactions that for example iran or might have conducted one of the runners in the conspiracy might have conducted a fraudulent check transaction but if that could not be linked to the conspiracy of the account number are recruiter bank insider manufacture then it wasn't included it wasn't enough quote unquote merely that or were that a runner identified as part of the conspiracy negotiated a check there had to be other connections to the conspiracy and that's testified to explicitly during the hearing and what this is meant to inform  evidence is meant to inform once you have the defendants involved in the conspiracy is whether all of the losses during their period of activity are attributable attributable to them under relevant conduct principles and as this court knows that extends wel whether they individually conducted any particular transaction and did that's what animates relevant conduct the inquiry is did they undertaken a joint criminal activity that for each of them made it reasonably  losses as a whole should be attributable to them now the government and the district court took a considered approach in this case twenty five defendants pled guilty as part of the same indictment that mr gay philly and samosa were indicted for twenty four pled to conspiracy to commit bank fraud of those only seven or eight were were held accountable for losses that spanned their participation and conspiracy under jointly undertaken relevant conduct principles the runners for example were only held accountable for the losses attributable to their particular transactions because the runner standing at the bottom of the latter do not have the scope of jointly undertaken activity as to philly gay and samosa operating as manufacturer's recruiters and supervisors of others in the conspiracy the bank insiders in this conspiracy were only held accountable for the losses attributable to the particular bank accounts that they compromised and handed over to the conspiracy the recruiters were only held accountable for the fraudulent transactions attributable to those individuals that that were linked to them that they had recruited guidelines on the scope of undertaking criminal activity for example in the drug context one of the examples is i think significant other girlfriend of eight characterize it as a drug kingpin and what the commentary says is that person may know that their drug kingpin significant other is engaged in trafficking huge amounts of drugs but that spouse or significant other only undertakes a to deliver one shipment and what the commentary says is that drug runner is only liable for one shipment because that was the extent of the scope of that person's activity even if it was forseeable that the conspiracy was engaging in other activity undertaking criminal activity has to be something that you have a vantage point on with respect to respond firstly ability but also be consistent with what you actually undertake and that's why these gradations or these differentiations were made by the district court consistent with the government's submission to the district court in this case and let me turn it on its head there's there's really there's really a theme i think through all three of the of the appellant's briefs that what the government did here was  the law that the government thought once someone has participated in a conspiracy that they're accountable for all the losses and that other than three or four lines in the in the contested evidentiary hearing transcript the government  each of their clients was accountable for everything because they were involved in the conspiracy and what the record reveals is that it was not the approach taken by the district court or the government not everyone who pled guilty to conspiracy to commit bank fraud the same conspiracy that these three opponents pled to was held accountable for all of the conspiracies losses rather the district court and the government applied the three part test that applies to jointly undertaken criminal activity and focused like a laser on each individual defendant scope and vantage point and role in the conspiracy that's why the transcript is as detailed as it is that's why the nature of the exhibits span trash post search warrants surveillance text messages proffer statements of witnesses including runners as well as direct evidence related to the transactions bank account information and the like forensic evidence with respect to computers as well and no showings were all aimed at a single purpose and that was to demonstrate with respect to each of these a palance what the scope of their jointly undertaken criminal activity was and that approach was differentiated from other members of the conspiracy who did not participate and not have the same scope as this set forth both in the evidence you're hearing and in the government's brief i would also if i could there is one of your honors i think it was not as helpful to the court as it could have been in the briefing and i just like to refer to the court to some filings in district court that i think are helpful one of the factors in this court precedent with respect to scope of the undertaking is to the extent to which the coconspirators coordinated and cooperated and shared resources and benefited from their joint participation and the government covered th in some detail in the district court with respect to gay i would just refer the court to a district court docket number one two nine two pages eighteen through twenty four with respect to philly i would hearing is that there was a coordinated effort here in other words the scope of the jointly undertaken activity was mutually reinforcing and that none of these three a palace operated in silos but rather the nature and extent of their cooperation on the fact that they were cooperating with with with the others including the manufactures runners and recruiters i would like to say just a word your honors and restitution with respect to mr stipulated loss amount and the district court did what it was legally required to do under the restitution act which is once the district court established arrested to sion amount and impose the actual loss restitution amount under the statute and if you go to the but then argue that the district court's bound by the government prior agreement which is no longer a meeting of the minds between the parties and the government would with suggests not only is there no sixth amendment interest but the district court certainly committed no  so there was no extended period of absence and as chief judge smith noted physical absence isn't a standard and i think it's judge carlton you know that the duration of that absence isn't a standard what is the standard the standard is once you engage in a conspiracy and the court draws conclusions about the scope of your jointly undertaking criminal activity did you withdraw from that that activity and was it no longer recently forseeable what the conspiracy was doing when this case your honour's it's not a matter of so entering the conspiracy in two thousand and seven leaving town and the government saying well you're accountable for everything until the conspiracy end in two thousand and thirteen what what occurred here is that mr some also participated in the conspiracy beginning in this isn't an issue entry and then just run you know run run the cash register through the end of conspiracy mr some also was involved at all material times in the conspiracy beginning and end twenty two thousand and seven and thirteen and he has not demonstrated certainly not by showing an absence for less than three months a total of less than six months over six years that he would refer to for a conspiracy for purposes of relevant conduct the preponderance standard is not toothless but it was more than satisfied in this case and respectfully i think much of the appellate arguments goes no further than saying they can only be held accountable for what characterized one of his objections as i don't know the source of the information he says i deny it and i don't know the source and if i could have just a moment to respond your honor perhaps thirty second turner think and i'm concerned about is potential for abuse here you know if the government gets a proffer in the p s r through an identified source puts in the information that's in the proffer and then the defendant objects to it because he doesn't know where the government got it other than from him and then the government says well we can proffer to show it correct your honor and i suppose you're going to say there were some other source of this information here but i'm still wondering whether an objection by itself is enough to allow the proffer i mean if you had jackson you had other sources then you could have used the other sources to prove your honor it's absolutely a fair question as to what the scope of an objection is in any particular case and the way i would respond to your inquiry in the context of this case is that what gated in this case was not just said we object to this paragraph and nothing more i think it's a he's thinking i didn't do it but he's just objecting because he knows then you have to make that would be different i think it be a closer case your honor much closer the record doesn't approach what's the purpose of the elaboration is not evidence all the legal effect is to put the government to its burden when the district courts intitled to rely on the facts of the p s r as the court knows if there is no objection what the defendant is doing is stating his position as to the facts that forth in the p s r and in this case the defendant about denied denied that he did things in the p s r that absolutely unequivocally he admitted to in his proffer letter on equivocally the proffer letter provides the government can use it if he makes evidence argument or representations and any time a defense counsel makes representations with respect to a p s r he's making those representations on behalf of the defendant in fact the  letter the proffer letter sent by or on behalf of the defendant and that's what was done with respect to the p s r here ok so you're saying the objections included argument absolutely and argument who went through the details of the actual evidence that came from garbage pulls or any other evidence that the government had submitted and went through forensically and said what they could potentially be connected to there was significant testimony from both both of those experts so a lot of the evidence that the government's referring to was a deuce by the defendants so to that extent i don't i can't tell you exactly what happened with testimony and cross examination but that evidence would have undermined this sort of conclusion exhibits without foundation that came in from the government and know that the government's position is that we're overstating our case and saying  that they're just they're asking to have everything in the conspiracy added on we're not saying that the defendant should not be responsible for the actual losses that they are connected to or that were reasonably foreseeable to them in light of the undertaking that that they were involved in they're just not automatically and i don't think the government is saying that they're automatically responsible for everything in the conspiracy the problem here is there's a lack of evidence here a nexus between evidence that has to do with other people's fraud and an individual defendant there's nothing connecting those dots and so that makes the connection doesn't fit within the definition of relevant conduct that's the primary concern with the loss amount as it was as it was adopted by the district court the court has further questions for me i i see no thank you thank you counsel the court notes that counsel for the appellant in this case are serving out of the criminal justice act as a point of counsel and we wish to express your gratitude for your willingness to serve no guard thank you