our third case for this morning is united states against gilbert freeman court's determination that he should receive a four point leadership in hansen under the guidelines which was based on inherently biased and unreliable statements that were essentially conclusory allegations from co defendants and other participants in the scheme who had an incentive to minimize their own conduct at the expense of mr freeman that's almost always the case where the factual finding rests on co defendants testimony it may be there are in this case mr made for sentencing purposes and considered for sentencing purposes as they were here for purposes of an enhancement have to be corroborated there is no requirement to be corroborated there is a requirement that they be reliable and in order to find that they're reliable the district court needs to give the defend a chance to us to challenge their reliability just conclude that well because they said it it must be true all right the burden is on the defendant to articulate a challenge if he has one and he certainly did articulate a challenge but was not able to do anything about that essentially because the witnesses were presented what we had was the government presenting plea agreements presenting grand jury testimony from other participants right but there's no suggestion that the defendant wasn't in possession of those statements ahead of time and they could have could have anticipated and in fact was on notice that they would be used to support this enhanced meant absolutely and that's why the rest of the chance to have those witnesses but what did he think he was going to get i mean just somebody suddenly saying oh sorry i was lying before but what was certainly that is possibly right or merely through cross examination through challenging each of the claims that these people would presumably made he didn't for example you know think that he was going to show that somebody was in a different place from where they said they were on a particular day or in some fashion you know some something concrete no your honor but the conclude there the allegations that were made were his concrete is that anyway the allegations were essentially i thought i was working for gilbert freeman he was the one that wasn't charged they were just the bald opinions of the other participants there wasn't anything like on may thirty first he ordered me to do this thing specifically at least for the most part they were general conclusions about who they thought was in charge of the scheme that the district court basically just accepted on face value and concluding that mr freeman was a leadership leader of the scheme the only other factor it was but they do i'm like i'm looking at the hutchinson grand jury transcript at one point he says for instance moe and brett paid me a commission of roughly thirty percent for the charges i was able to  relatively specific but that alone isn't enough establish a basis for a leadership match that he's handing out money doesn't establish that he's controlling what happens in the scheme that he's directing anybody to do anything that's just him filling a role of paying the participants well i mean obviously a piece of evidence i wouldn't say you can hang it isn't that that's a it's certainly a piece of evidence to be considered it's not on its own sufficient and neither should be somebody who's just trying to minimize their own conduct saying that they thought he was in charge that's essentially what we had here beyond mr freeman's reported share of the profits which again is just another corroborating fact so rather sent though right that is what that's the position the government in mr freeman was not able to challenge that fact and that's a factual allegation that essential the court could have relied upon because mr freeman was not able to challenge it but as factual allegations different from an opinion allegation which is what the rest of these statements basically work that mr freeman was in charge mr freeman doesn't have an ability to challenge somebody else's opinion if they're not even presented in court you can disagree with it as you did here but that's the extent of his ability to do without testimony from the people that are making the allegations about their opinions and because mr freeman wasn't given the chance to challenge those opinions through cross examination he was the night his due process rights to be sentenced based only on reliable evidence  the reliability couldn't be established without those witnesses being present in court here but it was pretty clear that these witnesses were involved in the scheme absolutely no no and don't accuse them of just being random people came in certainly not because of that that they're biased and they're i guess incentive to implicate mr freeman and to try to exculpate themselves at his expense is there when they were just mad maybe so but i think it's also the case that because they certainly are members of the scheme it's why their perception of who's running things counts it certainly does count but that doesn't make it reliable and that's what's required that the reliability be established they're in a position to know but we don't have to take their word for it and that's what the court did here and i think that's a mistake ok so unless there are the question our reserve my super bowl that would be fine thank you my name is chris stetler and i represent the united states in this case the district court did not clearly err in finding that the defendant was a leader in organizer and skied i understand that the defense is focused in its brief and here  organizer of the scheme to review some of that for us apart from the co defendants yes your honor so the district court relied on e mails that were sent by the defendant during the s decisions on behalf of the organization or you had an e mail on june twenty eighth of two thousand and twelve shortly before the defendant was arrested in las vegas with the defendant is sending an e mail authoriz it's tempting to recruit mr hutchinson back into the scheme where the defendant refers to him and mole having six other individuals who are working at the time you have an e mail on may twenty seventh of two thousand may twenty seventh of two thousand and eleven where another one of the defendants employees refers to the defendant as the head of the operation you also had the fact that two other non cooperating defendants testified in the grand jury that the defendant attempted to recruit them into the scheme that's so and joseph ter you had the defendants claimed right to the largest share the proceeds as your honor referred to and it wasn't just the fact that it's molten and holton referred to that percentage and hutchinson but the government also submitted checks that agreement to the fact that the defendant at various times in order to stay ahead of law enforcement would change the company names in terms of the nature and scope of the illegal activity again this is according to non cooperating defendants you had mr russo who testified in the grand jury that the defendant was responsible for fielding complaints from various victims of the s essentially threatened to report the scheme to law enforcement you had jim and cheryl brown who maintained one of the defendant's websites talk about their interactions with the defendant and now he was directing put various false information on their websites so if you have all of this why do you wind up with these sort of vague statements at the sentencing we think freeman was the leader we did you didn't even need them head of the scheme so you're are you making an argument maybe you are that just the fact that as many people said this as did cross corroborates each person's perception of how this was run it certainly does corroborate but if you as judge sykes noted we don't have to show that there was corroboration any one piece of evidence that was submitted in connection with the sentencing related to the defendant's role would have been  enough but i think especially when you have so you think would have enough if all you would have had a clearly obviously given what you've just been talking over the last five minutes that's not it that in a hypothetical case of all you had was just one person saying yet seem to me like framing was the leader  would that be enough for the enhancement maybe not of the individual said it seemed like not sure if a district court would rely on that but here as your honor noted there is much more and they didn't just say it seemed like it it was i work for this individual and here is how he directed me during the course of the scheme lest there are any additional questions he would ask the court to affirm the son's the fund all right dana thank you very describing what they were talking about here it's really just the government's conclusion about what they mean and that's not sufficient by itself to conclude the mr freeman was a leader even if he was actually recruiting people that alone isn't sufficient to the level of the fact that all of these different items of evidence point in the same direction you know that's what it's getting on my last question maybe one you might have appointed by the time you have all of this and there isn't anything the point in a different direction it's just a preponderance of of evidence in the district courts and tied it to look at things like email it is absolutely just the preponderance of the evidence your honor but it has to be of the prominence of reliable evidence and the evidence we had was not reliable and the fact that mr freeman was acting as the owner of a company doesn't mean he was acting as a leader in the scheme somebody has to be the owner of the company by putting his name on that documentation he's taking more risks that by itself could establish a reason that he's getting a bigger share croppers that doesn't mean he's leading anybody well we know from his own admissions in the plea agreement that he open the bank accounts for these phony businesses and he is the one who obtained the timeshare lists for absolutely identifying potential victims and he created the website created all the they're not sideroad with all the rest of the evidence which as i said all points in the same direction to his leadership role there isn't any reason and you haven't given us one to question the reliability of the cold defendant's statements and your honor mr freeman's position is that they're