trial rights sentencing guidelines range was also improperly increased on the theory that he derived more than one million dollars from financial institutions as a result of the offense based on a wire transfer of funds from a corporation business judge newsome can i just ask you a quick question about seventeen b if you i think i at least understand your argument with respect to the doctor i'm not sure i agree with that in light of seven hundred and four b but we can talk about that but just to set the table i don't i don't think i even understand what the the delaware supreme court justice was supposed to testify to the principal importance of his testimony was to show that mover was in fact contesting in the record but i couldn't get much context from move those from the brief or from the request like how is it that the delaware supreme court justice came into this in sort of this information how did he develop these impressions it explain that other forces doing wrong were actually doing wrong and that this then helps to explain how gets it into his head that he becomes a specifically to show host state of mind this is intent was to save the hedge funds at issue from misuse but isn't that the one thing under seven a or b that the doctor can't say well under decision i think is possibly the most important decision on this issue that what people are afraid what the rule i think it's designed to get with psychiatry from saying is that the defendant's brain works in a way that it doesn't function correctly and so you cannot convict him of a crime because he doesn't have the capacity to enter c if h s b c was the party here that was due was tricked why isn't the money in an ordinary understanding of the phrase derived derived from the bank well the i think that a couple of  reasons one it would have been much easier i think to write a guideline that would have been as expensive as the government wants which is to say that anyone who uses a bank and anyway it's part of  from whence the funds actually derived in the sense of whose funds are there and i think that's really a more appropriate way of looking at it because the protection of the financial institution at issue is one of results in this case it's one of did something happened where the financial institution gave up a one million dollars of its funds and so it lost issue and feel free to interrupt me with questions even during my initial two minutes if you have them your honor's like to start by highlighting the procedural posture in which the issue arose in district court consistent with the defense which is to say in his view what the case is about what his defenses are what facts support those defenses and from what point is what and from which witnesses they'll come and how the witness conference in a separate litigation regarding the hedge funds that issue but he never proffered he mr moon never proffered what was explained or what was said at this conference who was psychiatric testimony has a tendency oftentimes to confuse or distract the jury and a psychiatrist can ordinarily testify absent a some sort of diminished capacity defense which we didn't have here as to a defendant's measure mens rea as to a particular count and another argument that i would point out is that the proposed testimony from both witnesses would have been cumulative  all eight of the requested subpoenas as proffered by mr move would have related to his mens rea or his intent to defraud which are essentially the same thing and so having reviewed defense and finally really your honor don't even need to reach the issue because any area here it was harmless in view of the weight of the evidence against mr bhutto and the fact that mr move was able to reduce in his defense  you or the fact that mr moon how did reach out to him early on to report what he purportedly perceived to be malfeasance or misconduct on the part of the hedge fund and mr moves own testimony to that effect which again the jury was free to reject which it did i'm happy to address any questions on that issue if there are none on move on to the enhance and is just as notable for what it does say as for what it doesn't say the guideline it issued doesn't apply to gross receipts originating from a financial institution or even  receipts owned by a financial institution instead it applies to by phone terms gross receipts derived from a financial institution now mr move those arguments here in essence is that the two plus one million dollars that issue here derive not from the financial institution but from the account holder and the supreme court rejected an almost identical argument in the context of the bank fraud statute in shaw there is a defendant like mr who here stole money on deposit with a financial institution and was charged with bank fraud the defendant argues that he couldn't be charged with bank banks have a property interest in funds that they keep on deposit now the nature of that property interests might differ from case to case oftentimes as the court pointed out it's an ownership interest sometimes it's  at the end of the day banks always have a property interest and funds that they keep on deposit newson can ask you a quick question about that it will show all sort of presupposing the application of s banking law and if so what do we know about h s b c monaco well we know that it is a financial institution as you know as contemplated under the guidelines and that issue hasn't been challenged and we're applying you know certainly we're applying u s law in this case and so you know the supreme court spoke in broad terms and shaw it didn't analyze the particular you know the governing contracts of the particular account at issue in the case it's but i guess you have i mean you have to sort of potential black holes i guess one is the nature of the contract that if you and i don't guess we know anything about the deposit agreement here but separately you know when the when the supreme court was talking about banks having a property interest and or a bailey interest i mean i assume that the court was sort of assuming some kind of like restatement of the law kind of background about the way that banks in the u s operate and i could be could just completely off base about this i just want to make sure that to those  delineated any distinction in that regard so i see no reason why your honor shouldn't and in our view shaw resolve this case and you know consistent with what the nd circuit deemed to be the purpose of the guidelines which is to penalize individuals from putting banks at risk or at jeopardy by stealing funds that's exactly what we have here in mr mihos case i'm sorry let me ask you one of the question and i'll set up and  let you talk or let my colleague question so derived from is your is your position that that the funds here were derived from the bank and not from the rd party or that they were potentially derived both from the bank and the rd party as well i mean presumably a deposit or a can call up its deposits you know with some degree of you know with some amount of notice so you know in the general course of things depositors do have a right to money on applies in any way that's right that's our position you're on and so just so i understand now do you dispute the result in huggins i mean they're the money came out of the bank but but hug and said well look this is a strange scenario because the the fraudster didn't trick the bank you tricked some rd party depositor and so he's really just taking money out of his own account so even though the money came out of the bank in response to judge martin's question do you mean that you think that the enhancement should apply even on those unique  that what he claimed he was intending to do be a white knight is true it's just nonsense it just is so this is one of the clearest cases in which the non o of access to the testimony was at least in the government's view critically important and they used it to it to great advantage whether a jury would have believed that the the the defense i think is is not really the key point of harmlessness point is whether that the because we haven't heard the testimony and i think credible psychiatric credibly saying that for four years he's treating this man and it's unquestionably his his opinion th consumed with the belief that what he is doing out there is to save these investors that the jury would have found that relevant to all or most of the counts and one juror easily could have made that the  finding of a reasonable doubt the the other arguments on the seventeen b if you would just quickly because i do want to get to the sentencing question is that routinely psychiatric evidence is excluded i think that's why it's important to look closely at this microscopically the the other point on the seventeen b if the government says you know the intricacies of a seventeen b analysis require a greater explication of defense theory but again we're dealing with a pro se litigant here and ordinarily the the sentencing issue the government one point i want to go through with the government says the guideline language does not say originated in a bank the financial institution and i agree it doesn't say that and i think that's important because there are so many ways that the guidelines could have been written to say that funds that are held are held or over which the bank has control over which the bank is a is an authorized agent of the owner the ten million ways that the guideline could have been written to do anything other than what it appears to me to do which is to protect financial institutions from loss again not only factually that there it's this complete absence of guarding sean i think they're they're important is to what extent sean applies to foreign banking i think that's a very important issue and i think that it's equally important that shawn is dealing with the question  to a bank issue should should also result in such a large expansion of the sentence and if there was there is there any set of circumstances under which a bank could transfer this much money from one account holder account to another without risking liability well i think e f t s for example you know banks funds move through banks all the  on the board of directors now the question is was he pounds or fired was he properly removed from that company was he not properly removed did he properly merge it with another company did he not properly merger with another company those are all companies issue are of the variety which do not in any way liability for the bank or at least not create a situation where the bank would have been exposed to live movie particularly on this record that we know about it and so i think that if if if the if the if the the court is concerned about the magnitude public's very great a rise in punishment for under consideration