good morning your honour's the issues on this appeal are layered and there are four of them and numbers two three and four flow from the first which is the district court's erroneous grueling denying mr smathers credit or a reduction of his restitution obligations and finding that there was no suggestion of a connection between a complaint by against coconspirators and mr smathers the three other issues the burden of proof the fact that there was no hearing and no point of counsel flow from that erroneous ruling and the government agrees that out ruling was in fact erroneous and i can refer the court  to page one hundred six of the appendix and that's the government's opposition to mr smathers motion and they say that there is a connection a clear connection between  is one of the defendants in the civil suit and mr also said just before he said there was no connection that the loss was not necessarily the same between the civil suit and the criminal case against mr smathers but the issue isn't whether loss is necessarily the same that sort of a double jeopardy says standard it's well they were the same and that had to be resolved in the hearing government argues that  warner to attempt to show that they were different the losses between the two were different particular they point to a particular paragraph in a o l s complaint that about emails being auto configured and spam sent to them our response to that is there's no way that a o l could prove that these emails came from i forget the term for an attack like a technology term for it but they came from different computers that all can see the old where the spam was generated from the damages that they could show were from the list of email customers that mr smathers sold and that the there's also there's also the the difference between the restitution court imposed which was eighty four thousand dollars and a default judgment against one of the defendants in l o l civil suit which was a whopping twelve point eight million dollars i've never been able to calculate figure out how that was calculated but was it collected not that not that we know of part of the problem here whether any part of it was there was about ninety five thousand dollars and a fully loaded hummer collected from bourne a bill that was back in two thousand and five  loss for purposes of the guidelines but when you look at the sentencing minutes and you look under the column restitution restitution ordered was eighty four thousand dollars that's clear and to the extent that there's any discrepancy between the sentencing minutes and the judgment the sentencing minutes would control was the court wired to assess the entire amount of loss against each of the defendant no i don't think there's a provision of the statute that allows the art to screw up and between the judgment statement that the loss was three hundred thousand dollars and that this defendant was required to make restitution of four thousand  it was very clear that three hundred thousand dollars was not a proper figure for restitution in the sentencing minutes of this defendant he didn't he didn't clarify the laws dealing with this defendant correct but he was dealing with the loss from the sale of the e mail addresses and he didn't make any distinction between a spects of the law the one point and that i didn't make in the brief that i wanted to make here is that we don't know if any money was collected on the judgment against top because that proceeding is sealed and one of the things we s accomplish in the case was to unseal that proceeding when things mr smathers sought to accomplish pro se was to conceal their proceedings obviously his restitution payments would only be applied to a compensatory aspect of the civil judgment and i research for how do you know in a judgment what's compensatory and what statutory the only thing i can come up with was were some i r s rulings because it comes up for the i r s whether when a taxpayer pays and judgment compensatory one or the other is is not taxable or tax deductible so it's a factual inquiry and it would have to occur here before a decision could be made on the on the burden of proof it's clear that judge heller seen him post the full burden of proof on mr smathers and there's a section of the three six six four which for other issues and this is another issue it wasn't specified in that particular paragraph the burden of proof should be allocated as justice requires mr smathers came forward with evidence it's an accent that wouldn't be admissible evidence he was able to identify where it could be found the first court first ordered the government to secure unsealing in get that full burden to mr smathers which was not in the interests of drugs just as he was on counselled it was a sealed lawsuit it was an abuse of discretion a hearing where no it was it was a government and at the time that the restitution order was entertained did not the government ask for additional time to low able to contact the court with regard to what its injuries were indeed it did i know they did to me that they all well and the government were talking to each other and for some reason the court recognising that instructed the government to contact a well or to get the records unsealed but the government never explains why that didn't happen doesn't it doesn't and the court does your honor to say anything so we have no way of knowing from the court's own decision what the basis for the court's decision to then place the burden on mr smathers was as opposed to the government to ha relationship with a o l and in fact was perhaps the one party that might be able to get a well to un's records or at least disclose some of the information that was necessary that's right and they also had a i mean personal in the sense that w know relies on the general proposition the smathers didn't satisfy his burden of proof and i explained why that was was not fair and you return you retain some time if you want to take it now  reflectively taken of already but these are some time well i like to reserve and if nothing else when i stand up again i want to talk about the word lame her don't tell us what you're going to tell us eventually just  no your honor we directed it and you never said a word to judge hellerstein about why you didn't attempt on sealing records did you did not your honor not write so so how was it that hellerstein had any reason to believe that you that you'd made any  mount of restitution is calculated on how much barn of balls e mails the minimal picked three hundred three billion damaged a o l right that is how the that there be later recovery of compensatory damages for the same injury so the court is focusing on that the third prong and certainly there is factual overlap there's no dispute on the government side there is factual overlap between the allegations in the civil case and the conduct that mr smathers was held accountable for but what's absolutely missing is that whatever was recovered if anything from mr borne of all was for the same injury specifically especially in light of the allegations in the civil complaint that smathers was not the only source of spam and that mr born of all injured and well above and beyond merely the sending of e mails well ok so there could have been other people who provided e mail addresses his guilty plea as it happens and judge hellerstein at that time in two thousand and seven told mr smathers through counsel will come forward with evidence and i will entertain the court it wasn't for eight years or so before mr smothers came forward again to seriously press the issue and so at that point it's not a matter of the government is proceeding he is and he frankly has turned his life around some degree and that's great that's not a reason to reduce his restitution or what i don't understand is that when the court says you to go and get them once i don't i would agree that that's not placing the burden of proof on you but it's recognizing that on sealing the records becomes vitally important in understanding whether this is a recovery for the same injury or for a different injury would use if you point out and then the judge and then the court turns around and without ever saying virginia not now is standing the resources difference which i'm sensitive to but neither smathers nor the government or parties see the scales of justice with you on one side the united states government mr smathers pro se is balanced you're on  i don't claim and i'm certainly not suggesting that mr smathers has the resources but the statute three sixty three six six four says interests of justice generally and judge hellerstein told you to get the records and  he did you don't see a word to me you see a single word to him you tell me that you used to do you had no communication with the court yes to any effort you made with regard to getting these records unsealed you are complete communication to the court as there is an officer corps did you make any effort today in front of me now in federal court did you make any effort on suits for i deny your honor no you did not so you disobeyed judge order or did you just ignore your honor we believe that the response the response noting the legal deficiencies of mr smathers application undermined the the sort of the framework that the judge had brought to the  put into his final decision on this matter the decision that was appealed and what did he put there and what you put there i think recognising the context that the government's response had brought is that this wasn't a new issue it was not as might miss be misperceived from mr smathers twenty sixteen request something that had come out of the blue based on new records and was in fact a claim that matters could have raised at his sentencing when he didn't it was about a disputed amount of loss and his responsibility for it that in fact he had stipulated in the guidelines science was higher than the amounts we're dealing with here and also related to a claim he had raised in this precise form in two thousand and seven but had then abandoned for a period of eight years he didn't explain his exercise of discretion he didn't give us reasons why smathers was more like the person to be on the burden he was trying to stand with the reserve uses discretion we have to know what his thinking is he doesn't tell us about his previously ordering the records and then for some reason he changed his mind that you didn't have to do it does not your  order if the district court conclusively determines a claim to a credit then that order notwithstanding the ability of the parties later to litigate issues for parting restitution is final enough to appeal and that  case governs the issue here governs the appeal ability or right thank you thank you honour's the governor's race in its papers and and in argument a number of times that smothers could have raised this argument at sentencing they didn't raise the argument below so that it was waived and it was no part of the judge's decision in this case i also there is a provision in three six six for its f one a which says that rested the rest ution order has to be rendered without consideration of any compensation from other sources so an order of restitution was entered at the time of sentencing and then this mr yes congress could i suppose decide to give you break up with recovered later but not stuff that's recovered right previous right the statutory scheme doesn't make sense if you only get credit for post recovery so and the courts a number of the courts have talked about a two step process so you the court renders the restitution order and then the second step would be to determine credits and that would include both pre and post restitution order and i would submit that later means after the crime and not after the restitution order thank you thank you