brief and that's with respect to the ex post facto application of the new definition in terms of number of victims and agrees that the case should be remanded for re sentencing and i'm nobody caught that well  did represent himself pro se and so if we view that as you know the crucible yes testing perhaps you know lack of access to your office and they want to call it certainly your honor but that many people apparently haven't what else needs to be decided what else should be decided one thing is whether that remained should be on the open or close record i would also suggest that the court should decide the issue of restitution let me ask that really mean open or close record you are you do you have additional evidence you want to introduce we do not in terms of the issue of the number of victims we're asking for remained on a closed record on that issue the government has argued in their brief that they the wrong guideline once used yes and no mr thompson did object and say that the i r s was the only victim and in response the government did produce additional evidence mr johnson specifically asked for copies of the victim impact statements which had been solicited and collected by the government probation talked about them in the probation report and all of that evidence that you know could have been found was found and discussed and so i think that the record is close and that i think that the government is suggesting is more than that is that they want now to go and to develop additional evidence and to possibly interview some of these individuals and figure out you know did they have delays in processing were there other problems  it seems that they really did have that opportunity the case law that would have supported that kind of analysis was already in existence at the time sentencing so we are at least requesting that the court consider remained in on this issue on a closed record  the case certainly has been fully developed with that issue you know presented to the government and to the court and it just seems like more forests to be destroyed in the eight if not much additional time  to be given to mr thompson in addition to that the court should resolve the restitution issue both the scope question and the proof question and the fifteen forty six question the court could also reach some of the other sentencing issues although i will admit that they may look different after a remount some different objections may be made so standards of review may be different different arguments may be made the government certainly has come up with additional creative i would argue not meritorious but creative arguments with respect to some of the us and represent a sense in either party you know he mr thompson moved to represent at sentencing he was represented by counsel during himself he would really like to be here himself arguing this case though and so the those other sentencing issues including the obstruction of justice object the obstruction enhancement i think that one clearly also needs to be reversed although i'll be the first to make that on remand i think the judge will understand that he needs to make those findings and i don't doubt the government's position that they he will make those findings but i do think under this court's law it has to be reversed and if we back out those new arguments those new creative arguments that i referenced and we look at what the p s r actually recommended and what the court therefore actually adopted when it adopted the p s r in  objection it recommended that personal tax returns you know are a means of identification and therefore that enhancement can be applied i think that the law doesn't support that so i remain we might have different arguments and so i don't know that the court really eight when the committee was you know concerned with consolidating and combining and being efficient still resulted in one section that talks about visas and permits and other sections that talk about passports and that has never changed and so they did not see those as duplicative at the time they didn't fold them in together and the government's position is that the one thousand nine hundred six amendments somehow now change it and include passports and passport card even though they're never mentioned and i don't think that any of the case law suggests that if we look at the entire history that that section applies to anything other than documents utilized by aliens to enter the country and that that's what it's aimed at and you know if you take the language out of context and out of the statute now the title of the statute then certainly a passport is used for entry but it's used by u s citizens for entry and  conflict with her stick with our opinion kirsten and i think it does and that is certainly our position and her sick you know interpret in what does any such mean and the way they talk about it and if we even go back and look at campo serrano some of which is you know good law even though the congress sort of overruled it in part i mean everyone when they're talking about this statute is talking about the visas and the permits and the border crossing cards and the green cards that are issued to the lions and i think there's been some we're consolidating legislation we didn't consolidated well they were separate things your argument has some surface appeal and you know when i originally looked at this case i was thinking well gee fifteen forty six seems coextensive with fifteen forty three with regard to passports so that seemed odd to me but then when i read them more carefully fifteen forty three actually broadens it because fifteen forty things covered by fifteen forty three possession and uttering which is only covered by fifteen forty six so well there i mean in terms of the entire section i think it's fifteen forty one up through fifteen forty seven right if i've got wrong i think that the conduct right taking a valid u s passport hard and adding someone else's information is clearly covered by those other sections in terms of misusing it and using this case if you go back and look at the indictment yes the way that it was charged in the indictment certainly track's the language of the statute but in terms of the conduct that he engaged in it was facts as presented at trial were that he used to open this class mail account but is it your strongest argument that if congress wanted to include passports they have this long list of documents and they knew how to use passports and fifteen forty three that they could have passport to fifteen forty six and i think they've had multiple different opportunities to do that i mean and i do think that it's important to go back and see that these these basically came from two different families i mean the set of statutes come from two different families and went through a process where they were you know combined and consolidated and that didn't happen at that time and these changes to fifteen forty six since that time don't change that fundamental fact but but don't you have a hard time getting around that language or other means immigrant are not an immigrant right i mean exactly right so the christic says that and that's like one i think very solid argument in terms of how to interpret the statute and now responding to judge bennett's question i think there's another solid argument which is when you look at the specific listing then the other documents is informed by the specific listing so it's not just any other document because otherwise we could just have documents right we could get rid of the entire predecessor words and just have the words documents perscribe for entry right i mean that's what the gay says is that when you have a listing of specifics it informs the more general language that f i mean so it is a question that i think the unpublished decision is in conflict with christopher at a minimum i think that the legislative history if we're going to look at it supports that it came from two different families and congress never did add that word and they clearly could have and august christic stand for the proposition that fifteen forty six years ambiguous in every respect or you know i thought it was just with regard to any such running out of time can we talk about the restitution and in particular on your argument about the guests there were over there was another case and it was dismissed as to him  things but there is a scheme alleged in the first indictment the one that we're here on the one he was convicted of after jury trial and the indictment alleges that it continued up to and including april fifteenth of two thousand and eight the second indictment is a conspiracy and it alleged that that all happened in two thousand and nine and the government had both of those cases outstanding he went to trial on the first one and then sort of partway through the sentencing proceeding him and so our position and his record of why they did that well i think it would have been a lot of trouble to go to trial against cross a defendant i'm obviously speculating and they figured they had enough to get their big sentence but they can't get their big may please the court joseph we're going to have to united states to pick up where you left off judge were law the reason why the case was dismissed it's articulated in the record with the judge when you decide to ask the government can all of this just be considered the second case as relevant conduct and the government's position from very very beginning after trial of mr thompson was that it very well could be considered relevant conduct and so it was the government's position that there should actually be a hearing on whether or not it was relevant conduct so that mr thompson could test that theory and have an opportunity to cross examine witnesses which is exactly what happened in this case and i know that there is again tension that there was a time limit associated with that hearing but a few of the things that i wanted to point out of can i just ask you is it your position that it is relevant conduct unde relevant conduct standard which is part of the same course of conduct or common scheme or plan yes your honor and there are two reasons for that one counselor noted that there was a conspiracy charge in the second case but there was also a wire fraud charge in that wire fraud charge if you compare the two indictments the scheme to defraud in the mail fraud charge in the first case and the wire fraud charge in the second case the scheme is the same it's the same modus operandi mr thompson engaged in filing false tax returns from all different people in different locations in different years with different documents no your honor with all due respect i disagree that there were similar victims involved first indictment was brought in two thousand and ten right after mr and thompson was arrested the evidence for the second scheme was contained on a computer device that had been seized at the border a search warrant was executed on that device and it took the i r s a year and a half or so to investigate that second scheme it's of them a long time to identify those coconspirators because their names and identities were nowhere to be seen on the computer other than a photograph and an initial that the agents had and so that's why the two cases weren't charged together but you go back to your point that bennett it is the same victim and it's the victim that continues to harp on in their brief it's the i r s the i r s is the victim they're the ones that are the victim of this scheme because they're the ones that mr thompson wants to steal the money from and so they are the same victim in both cases there are a few of the same victims also in the second case mr davis daniel davis mr joseph covington and mr george thompson is also a victim because it's his wireless card that mr thompson used to file the false returns but the scheme itself is the same in both cases in the very beginning of the second case in the very beginning of the second case mr thompson rent an apartment view towers and does exactly what he did the year before he files using the identities of his clients and jackson hewitt clients false returns electronically with out the  conduct can be included in restitution and so we do have a situation we actually don't have a situation in this case where there's one car parts conduct as mr thompson was indicted in the second case but even had the government not brought that second case i would still contend that the nice supports the fact that that related conduct in the second case could still be used to make the i r s whole for the losses that they suffered from both schemes now this is the reason why there's a temporal difference in the scheme is because look at the nature of the  it's tax fraud it's going to occur between january and april of each year because that's when tax filing season is so there is a reason why there's that intervening period between the two schemes they're the same scheme it's the same modus operandi the same victims the same monetary goal that mr thompson was seeking discussed the restitution hearing itself at that restitution hearing the government did what it could to assist mr thompson who decided to go pro se and represent himself he made that decision almost a year and a half before the restitution hearing occurred he did have stand by counsel at that hearing the government submitted detailed declarations of the direct testimony of the witnesses  intended to call more than two weeks before the hearing so that mr thompson had adequate time to prepare for cross examination in fact the government stated that it did not intend to call the witnesses for direct and that mr thompson could use the entire time to cross examine the witnesses mr thompson sent a letter to the government that's in the it was not in the record that he was prepared to go forward he asked the government to load exhibits onto a computer and to bring in elmo to the courtroom the government did that and you'll see throughout the hearing that judg he was trying to help mr thompson i'll note several situations where judgment is ask follow up questions because as you read the record it's very difficult to see what point mr thompson is trying to me he simply arguing with age drew in because she was a witness who testified at the first trial and he wanted an opportunity to cross examine her himself the judge been is asked several pointed questions at you are seventy seven eighty three to eighty four ninety two and then had a long discussion with agent at one twenty five to one thirty so the court was actively engaged in fact the government was actively assisting mr thompson when he couldn't find exhibits during that hearing in locating those exhibits and placing those exhibits before the witnesses for mr thompson and so i don't think that the court committed any sort of error by limiting the time frame because as this court knows it's worse to limit the subject matter and to limit the time frame and the district court has to be able to control  proceedings which is which the news was doing in this case with regards to the fifteen forty six charge want to go back to some of the questions that judge wardlaw had with respect to any suction christic in i don't think christa conflicts with franklin at all as a matter of fact what christic was trying to decide is something entirely different than what this court is asked to decide about whether or not fifteen forty six applies to us past a court card christic was trying to decide whether or not authentic alien registration card could fit within the confines of fifteen fifty six not it didn't have to just be a forgery it could actually be a possession of an authentic document that was procured by a false statement and that was with  nicer it was trying to decide in christic i charged this case in two thousand and ten and i didn't find a single case that said a united states passport card is a passport i venture to guess had i charged fifteen forty three in this particular case the argument would be that the plain language of fifteen forty three doesn't say united states passport card it says united states passport and everybody understands terry and you can see that now though right now i can see that of course because i have cases like  like franklin which was decided in two thousand and eleven after i indicted the case in two thousand and ten so i now have case law and analysis to show that that a i could make an argument that passport card would fit within fifteen forty three but it's not  court's position to decide what's the best statute that the government could have charges whether or not the conduct fits within the statute that is charged and i contend that it did because of the other document clause when i looked at the other document was i just read the plain meaning th in other document by statute or regulation for entry into the united states and that was the united states passport card which was a relatively new document that had been issued when i charge the case in two thousand and ten and so when i was of lenny i think should be used with caution in a case like this because i do think that fifteen forty six does apply united states passport cards is a part of passports it applies to united states passports because thirteen forty eight thirteen twenty four as small by the fact that it promulgated thirteen forty two a which does apply as for purposes of employment authorization it's specifically tied to that it doesn't deal with entry or entry into the united states which fifteen forty three i think is more t allianz they are for aliens you're are you suggesting that support is ivan's argument no because then we would stop they would have they would have added the catch all phrase other documents prescribe by statute for entry into the united states they could have ended it if they wanted to limit pacifically to just alien documents congress going to just stop right there and ended it with just those example how do you do with the role of the gay well again i contend that the statute itself still even under the legislative history and the plain meaning of the statute clearly applies to the document that was charge united states passport card because it is a document for entry into the united states with they didn't because they added the catch all phrase that includes passports they added a phrase that is more general and will capture the passport because a passport as everybody knows is a document that's for entry into the united states does the legislative history support your beard that print is included passports i think it does i think the thirteen twenty four a because it was promulgated at the same time and because that was the time when they're instituting and you verify system for employment authorization they specifically mention my orders for every argument you make seems to support this notion that that statute is aimed toward aliens and there by system that was for our people to determine whether or not people were authorized to work in the united states well it's not aimed towards aliens because the charge itself begins with whoever and whoever can be charged with this crime and so if they wanted to limit it to aliens they could have congress could have said any alley unknowingly forges this  could be used i would contend for a united states citizen who's maybe a fugitive in the united states and takes a alien registration card and tries to enter the united states using that united states citizen could be charged under fifteen forty six for misuse of that alien registration card for trying to sneak back into the united states because the statute says whoever can be liable for that charge with regard to whether or not the court closed record i want the court to understand that judge the need as i know i'm running out of time noted that we killed a small forest in this particular case the evidence of the other victims is in the record it's in the tax transcript on to the reason that the government would need to add a witness to explain what the codes in those tax transcripts mean in order to show that the victims at the taxpayers actually suffered a delay in the i am confident that i should check with mr thompson before i make that representation here on the floor when we when we receive the letter if i don't check with him when i go back to my office and we're fairly confident he want to agree but i'm just kidding briefly the scheme is the scheme he was convicted of for restitution and nothing the government says can make it broader than that under the law and i am confident that the law clerks who work for your honour's will immigrant or nonimmigrant visa permit or other document required for entry into the us and then that's when in one thousand nine hundred seventy one the us supreme court decided campo serrano regarding green cards and said hey they're not in the list and only took about twelve years to amend it right and then in eighty six congress responded to that decision and changed it to prescribe it instead of required and so i would just take issue with the government's