of multiplicity counts one through four i think this is a drafting issue if you look at the indictment count one charges a very sprawling conspiracy to do all sorts of things related to the theft of motor home constantly it was a pretty brawling conspiracy in fact one that yes it was mr meyers is a career motorhome thief he certainly is still entitle to the same protections as anyone else and the same rules that apply to one else and one of those rules is that you you can't take one crime and split it in four that's what happened comes one through four are you telling kind of oriented it's a very hard case and to grasp of all once you dig your way through it it actually collapses into a very simple case that's my position so count one charges a big forward purportedly as substantive counts of just stealing a motorhome but as mr meyers said at the trial and as we say in our brief if you examine the in the indictment indictment says he did this he did this you this and he conspired to do this with relation to those motorhomes which are also overt access to call one the argument is if you're conspiring to you could charge simply a charge of stealing more home but that's not what was charged that's not was present to the grand jury and that's not was trying to conspiracy or conspiracy you know yes that is directed doing that he's charged and as overt act yes well that's the normal way to draft the indictment i have no problem with count one my problem is counts two three and four which are supposed to be just substantive count of on such a day still a motorhome but the language in there isn't such a date you conspired to steal a motor home and that's my argument as to comes one through four is that you took the charge you're one big conspiracy charge and you charged your hundreds of overt acts among the overt acts were stealing these three morons in the western disk of michigan so far so good but why why isn't that he in fact transported these things or aided and abetted the transportation of you know particular motor on was with a particular than ever i mean it also says conspired right but if it said only conspired i could see your point but it says you know he actually transported so why isn't that beyond or why isn't that just sort of what judge merritt said you know sort of par for the course here is conspiracy charge here is the charge he actually did it and i is told here's a conspiracy in there told them come two years a conspiracy how do we know how they decided the case where the instructions suffer from the same problem i don't recall with instructions says two three four but the verdict form certainly said conspiracy as well and complaint about that potentially confusing a path to that language in the verdict form but and my question is what is harmful about a conspiracy charge of conspiracy substantive count charge of substance called conspiracy conspiracy a word we're lawyers that's our tool and trade judges are judges lawyers are lawyers we assume juries follow directions and that's the harp and you're talking about ten twenty thirty years of a man's life i would say but it was overwhelming he in fact stole these things no question though i mean is this multiplicity thing is that just i forget is it subject to harmless error analysis because if it is you've you have lots of issues in this case there are so let me let me spend another minute let me turn to another issue there isn't there's an argument that venue was well i want to argue that the venue was improper in count six and seven which are the substantive money laundering counts and the argument is that no none of this money movement  the proceeds of the sale of them stolen motor homes occurred in the washington michigan business do i understand from what you just said that this argument only applies to the substantive yes yes or the the conspiracy to money launder it doesn't apply to i'm just making this argument as to count six and seven write this i don't know by number ok well all right so we have we have three money laundering counts one is a conspiracy the money laundering then we have to count six and seven which are substantive money laundering counts on such a day you did so this wouldn't this wouldn't this wouldn't affect your client sentence other than maybe one hundred dollars fee or if he gets acquitted some other day on something else i guess i guess it probably was probably too wouldn't your yes your honor i don't think it would is that a curiosity why aren't you making it as to and i don't i think you know what is the meaning of the word proceeds you have you have a definition that says a proceed is any property comes from one place to the other but it's a money laundering statute and all the all the money involved in this case is that what you're trying to say yes well that's that's the gist of the argument because it just it just doesn't but if they still get money if they if for instance it was a theft of money from a bank and then they took the money out of the state that would that would be proceeds i know they took the money out of the state they put in a suitcase took it out of the state and then they then they did all kinds of transactions to i don't want to make a dumb distinction between hundred dollar bills you need to process it so the first thing you do is you take it out of the state ok and then you never go back or have any other further connections with the state you just stole it lets say right right or sold drugs ford or whatever you did all right now you can prosecute him for the way that they obtained the money the dollar bills right but you're saying they can't prosecute him in the state if there's been a proper objection in the state that they took it to are no it's the other way around you can them for the for the money laundering in the in the state that they took at where they look at right but you can't be prosecuted for the state they took it out right and you would say that even for the dollar bills of that's the problem thinking about all this is it's hard but in our understand it apart from the nature of whether maybe i don't understand money laundering i mean i'm sure i don't but it seems like an artificial distinction to just say you take valuable diamonds out of the state and then fence them or you take dollar bills out of the state and then convert them into diamonds or whatever it is that those should be treated differently for venue purposes that seems anomalous is what i'm asking but that's what you're to commit money laundering and the substance the substantive concealment money laundering offenses because the defendant ran myers laundered proceeds that included property that he stole from west michigan and quite literally transported out of the him everybody's scrambling no apps absolutely it was not the best way to present his argument by a long shot and it should have been the briefs for sure so i think what happens and it's not an excuse but you know sometimes what happens is you look at a case in a certain way and it's great that way in the district court and i think you sometimes have a different perspective when you start getting ready for oral argument so we certainly made the sort of general argument that the government's argument on this point in the red brief is remarkably perfunctory if you ask me this certainly is remarkably but i sense well anyway anyway that i'm not really that's not a criticism of you personally by any means sort of so and i apologize that the brief is perfunctory on this specific point it's just sort of allied to the issue itself and just wants to pretend it's not really there but anyway i don't it a second language conspired to transport is included in the indictment and the substantive counts which is unusual usually charge just the conspiracy and you terms the substantive offenses and if you look at the the district court and the defendant that it was possible at the outset of the case that the government might pursue a pinkerton theory of liability so peter to liability of course arises from the case pinkerton where a conspira can be held liable for the substantive offenses of his or her or her coconspirator so that was a theory of liability that ultimately was not pursued so because the government had adequately proven that the defendant in fact transported the motor vehicles across state lines that was a theory that was presented at trial and proven and that was what the jury was instructed on the jury actually wasn't instructed on any language of conspiring to transport with respect to the substantive aiding and abetting in section three seventy one would be conspiracy and those are theories of liability for the substantive crimes and again the jury is approved and instructed us to only one of those then you're saying there's no to correct that because it was put it was actually the instructions included only the actual transfer porting the verdict form listed all three ways of committing  three theories of liability and the jury found that all three were proven so there is no harmful air here well getting back to the venue the now we're standing the breadth of the definition of proceeds here the indictment itself says that the let me let me just back up would you agree that that the anterior criminal conduct that gives rise to the proceedings in that case drug dealing in this case stealing the r v is not part of the money laundering offense itself yes ok i appreciate that  and so now we have to look at the money laundering offense itself to determine if any part of that offense took place in the state and district in which he was tried you know i mean the constitution is two provisions on this so it's pretty serious it's not just oh it's more convenient now in in the two counts of mr table min is challenging the venue for the particular acts that are alleged to have constituted concealment concealment money laundering are not driving an r v they are two particular financial transactions with banks a two to two transactions in count six one transaction i guess in count seven both with this would force national bank which i gather is not a mission since i've never heard of it so so the two acts that are alleged to be to be the offense of concealment money laundering here neither of them happened in michigan so why isn't it true that as alleged and i guess proven here these offenses notwithstanding the breath of money laundering whatever  proceeds these offenses were not in michigan nothing happened in michigan as to these two appearances because the because the laundered proceeds the property was directly traceable to the property that was taken out of west michigan so and there are two reasons one is the statute which we sort of raised earlier that we do rely on now i guess you know but you the government allege that the offense in this case was were several transactions not driving an r v the government chose not to allege that driving an r v across state lines was part of this offense chose not to do that maybe for good reason why it why should we take the government the government's characterization in the two counts here as definitive of the scope of these two particular crimes for purposes of venues that venue provisions because i think that would be an over overly broad reading of corrales and it would not respect the plain language of the venue provision because it doesn't limit it does not talk about the constitutional provisions when i say the venue provisions right well and so then maybe we get back to this sort of substantial context test if we're going to talk about sort of the constitutional ruling on venue in whether there were substantial contacts i think that's now what i'm thinking of i guess i mean my immediate question is the government said the crime is transactions a b and c why should we take the government the government's characterization for purposes of determining where this crime happened that the government's quite specific why not just say ok we're where those transactions happened if they were in this district you're ok if not there might be a problem and then we go on to these other tests so well because i think the test for venue constitutionally and under the statute is broader than that ok let's talk about constitutionally i mean how is it bro i think that's where i get back to the substantial context test because there is that sort of test to determine whether it would be unfair to subject a defendant under the constitution to prosecution in a laundering and so let's talk about balance for second braless we think is actually consistent with our view of venue how when you should be determined in this case even before the statute is in acted and certainly been charged in the indictment with meeting in the drug dealing activity in missouri and had not been charged or there is no allegation of having taken any property or any proceeds out of missouri so she had while a court doesn't go the court does not do the so part the court recites those two facts and so far as i can tell in its actual analysis does nothing that it's just has nothing logically to do with the holding as the court explains it those two things are just there that's great except that the court does say that it could that in some cases money laundering could be a continuing offense for example you  appropriately give some weight to those observations in comparable us and that there are significant here and then fact congressman and act of the money laundering venue statute pretty much a dot there what our view of the appropriate reading of which is that if the defendant availed himself of the venue by participating in the ok i understand you i think you've answered i understand where you're coming from i'm corrals ok let me ask you this question if you didn't have in the that the money laundering itself the i mentioned friends action has to take place in the district but where if the word property were not in the defamation you'd have a hard just assume without a statute that that's what congress had in mind would car i think congress was a little confused because it only came along and apparently the there are money laundering does extend in there are cases that discuss money laundering of property of of nine fungible money property so you know diamond rings that are stolen in taken across state lines you know physical inventory that is stolen and taken across state lines can be the subject of money laundering and so we think that it was the definition which i think maybe was adopted in a different context was nonetheless purposeful in choosing a broad the some financial transfer as opposed to taking in or be out of the district wouldn't a venue is a statutory provision that says taking the v out of the district the district out of which you took the r v is an appropriate venue would not just simply be unconstitutional as applied under the six and the other venue provision in the constitution no i don't think so because the general gist of the constitutional analysis is determine whether it's fundamentally unfair to subject the defendant to prosecution in remote form that but for all assured talk about fundamentally unfair it's about elements and where did this happen and i mean what's is there a supreme court case that analyzes the constitutional venue provisions in terms of fundamentally unfair as opposed to terms of the elements of the crime and constitutional concerns with a venue they start with that notion i know it's in there about you know why we why we care and why we care is we don't think that it's important we don't want somebody to be subjected into to criminal prosecution in a form far from where he chose to commit his crime so and i think that's the concern that this was getting at right because money laundering can occur with all kinds of different specified unlawful activity going on in a defendant could be subject if if it were otherwise the defendant could be subject to prosecution in a very remote form having had nothing to do with the ancillary criminal conduct that led to the proceeds that that he acquired and then tried to hide but that's not what happened here and i would say you know look at rodriguez merino footnote four which does actually i'm sure you did was does have you know just to make this distinction with us of course i also know it's there that their income brought us the defendant was was being held responsible in essence for the criminal kind committed by others in a remote form and that's not what we have here he's the court said and it's  very different context and i do think that that distinction is significant because this defendant chose to enter west michigan chose to steal these motor homes and drive them across state lines it's not unfair to subject him to prosecution here for those crimes i have some questions on some of these other issues that i would like to just a result of having so many issues in this case and one deals with costco accumulation with respect to the resale price and the other deals  with sophisticated air acts and the each sort of appeal with counting things twice although it's probably not technically double counting or maybe it is if you talk of if if somebody says steal something from you as opposed to defrauds you of it like they steal your you or your prized dog or whatever and then they sell it and then they sell it again and then they sell it somebody sells that name and and it's sold ten times each one of those people has converted under conversion law that property and you can sue anyone upon but my understanding under tort laws you can only recover the amount of the total amount of the value of the dog or the diamond or whatever it is but it seems to be that the law that they're applying with respect to loss calculation is to permit the cumulation of that everybody who possesses at one point the stolen property suffers a laws even if they sell it right you see what i'm saying  only two but it seems like if you get more than the value of the property that's stolen it's a little bit counterintuitive to say that that's but that's the amount of loss and it would lead directly logically to saying if they sold it again you could triple a value of it and say that was the amount so what's the logic of saying that the loss can be more multiplied in that fashion i think the rationale is that here  in this criminal sentencing context the court has to take a snapshot of the loss at the time of sentencing and so at the time of sentencing the court looks to see what is the universe of the lost it's appropriately that  it's appropriate to pull this defendant accountable for so i don't think that there could be sort of an infinite amount of accumulating loss but what is  and just look at doubling it just doubling it seem logical because the real people who are out of money so they may have an intangible ability to recover from the motor home dealers who sold them t vehicles and maybe eventually they would be sold that they didn't get they didn't get the money or they did they have to charge theory the money is either in the person they sold it to or the person they can't be both of them have lost it but if one of compensated from the insurance company or is the insurance company at some value and then it's the secondary purchaser who has some perhaps ability to recover against another entity but at that at that point in time bucks ok so the fair market value is one hundred thousand dollars but yet there's a second to secondary purchaser so taking into account the nature of this crime and the nature of th defendant who had done this multiple times and knew that when he took this motor home to the dealer that it was going to anybody going to be sold to another individual and that they were going to be potentially losses because that would if that song vehicle is recovered by law enforcement and that person doesn't have the vehicle anymore so i'm either i'm right or both for yes and ultimately it might get a shake out with the insurance companies and the dealer and the secondary purchaser all sort of getting their rights recognized and their being one l occur that's correct and to the extent there are adjustments later for example restitution is is reduced so if the secondary purchaser recovers on his claim the network then the restitution amount will be reduced so it's not as though he's being literally held responsible for a sum of money you know him responsible for that money but in determining what the magnitude of the loss is how high the offense level should be it should take into account the fact that he should have reasonably anticipated causing other so it should be higher would move r v dealer that bought the r v from and have gotten paid by the customer who is now the second victim here and so that dealer would have suffered a loss foresee dispute about the fair market value portion of it and the party sort of agreed on that part and so the question here is like this other amount to you know what this eight hundred thousand dollars is the argument has been presented that it shouldn't that shouldn't matter because there's an ability of those people to recover any funds that they were are out and our response to that is well maybe yes and maybe no maybe they can get their money back from the dealer that took the money as part of the sale because the title wasn't part wasn't valid snapshot hypothetically the dealer is not out any money because he's been paid i mean subject to profit although he's he's received a we would argue that if there was error in including that that it was harmless because it wouldn't affect the guideline range course it depends on how you decide the others are missing issues as well i'm going to ask you about sophistication well since your interest in the loss i'm here to talk about it just briefly i just don't think there's any way to defend how the loss was calculated you got it one motor home it's recovered by law enforcement it goes back to the owner you've got one dealer making the sale he got his money from the buyer why in the criminal sphere in this sentencing sphere i'm going to make a special rule and the most calculation compared to the money get back to the original dealer made whole x factually in her case these these more rooms recovered i mean it's not like the motorhome disappeared and even if the does disappear it's only got one value why why and are we going to lump a defendant with multiple value i just don't understand the the justification for that he knows the setting i mean a theory would be i don't know whether it would be a good idea but theory would be that he causation chains are infinite and at some points are cut off and i don't know why why would why would you just use the value of the prob the pot how do you respond to back up argument that it doesn't make any difference here under the if we if we for instance rule against you on all your other sentencing claims do we have to reach this one and i think so because it changes the guideline range to to a two level change i think if if if if if it changes the sentencing guideline range then i think it's it's harmful year and i think i think there's a fallback argument to that which is the district court has an obligation in every sense in case to correctly calculate the guidelines and go from there it's very hard to speculate about well what would the sentence have yeah i know how to