thank you for honor and may a please the court happy to have air and any color and join the club and this this hotly contested trial lost its way when the district court allowed true government witnesses to call the defendant uncooperative defensive fraudulent and suspicious in violation of the constitutional rights it lost its way when the court admitted an incendiary recording that added nothing programmed of and then lost its way when it it when the district court in minot in order about a gun at the guy's explanation the government kept choosing the road most prejudicial resulting in errors that aren't harmless under any standard let alone move beyond a reasonable doubt standard that governs the constitutional lawyers to start with the st constitutional her for over forty years applying prescott this court has not allowed  rights to be evidence of guilt because doing so places an unfair burden on the exercise of those prescott requires reversal here based on true facts that are undisputed st that the government drew from its witnesses that the defendant was uncooperative with law enforcement suspicious displayed indications of fraud the exact burden on the th amendment that was prohibited by prescott and it did so based only literally asserted but exercise prior to being charged she exercise that right when me i think there were postal inspectors in that case knocked on her door no one had been charged that was her st introduction at all to federal criminal law enforcement one has a th amendment right to be secure in one's home regardless of whether one's charge or not but counsel is what you don't have a she's talking to an insurance adjuster she says this isn't a good time another time it's the housekeeper is there you know she's not posts are reading her constitutional right she's just saying this isn't a good time to do that excellent trial judge and he's dealing with a very difficult situation where your client is both trying to avoid discipline at work for having just only ready inappropriate relationship with a prisoner and pursuing burglary claim where she's not telling the truth the whole truth and nothing but the truth to anyone because of her house the same concerns about discipline or inappropriate relationship and whenever something comes up you need to quit over here and say it's constitutional violation or you put it over here and say well she was only doing that because of the underlying sheriff's invest this this is a constitutional violation prescott didn't express lee assert any rights uber what she did was just not open the door and so what is really going on here is and the explicit testimony of the government's witness was not just that she said she was busy but that she was uncooperative defensive suspicious an indicator of fraud all of that suggests that everybody knew that this was a big deal that she was not cooperating with the f b i and the ultimate risk that prescott focuses on is that  conduct where you're not allowing the government to do what it wants to do that you're protected by the constitution to do becomes evidence against you and that is exactly what happened here she  allow the search there's no question she didn't the f b i asked her to take bigger prints and left without taking fingers and the result of that the result of her exercise of her important th amendment rights was doesn't that doesn't i think it does your honor let me take there were two different pieces of your question and hopefully i can address the both lee st of all it does burden the constitutional right because it went directly to what prescott prohibits that is the the inference of guilt resulting from the conduct of the court allows the government to just declare someone uncooperative and that's ok because they didn't specifically mention thinker prints or whatever and that's what the government can do in every case get around prescott they can just skip a mention of the specific issue and go directly to the conclusion that the defendant was uncooperative suspicious and all these other terrible terms that apply no trial average would allow that in in most cases it wouldn't you don't you would never allow it to happen but in this case where she is accused  hiding information on the insurance claim it changes the complexion completely so let me let me get to that because i think that was also the other part of our view of smith's question and i don't think it is at all correct to use that justification i respect that the facts that the court has noted but that doesn't solve this th amendment problem it doesn't for a couple of reasons st that's not how the government used this evidence they did not use this evidence for a proper purpose they used it to prove that she was defensive uncooperative and an indicator of fraud merely because she refused to let the f b i take fingerprints in her home that's the th amendment violation the notion that that this would be otay as well since she was asserting a burglary she should have consented to a search that is actually prohibited by prescott itself which said no there's only one purpose of this evidence and that's  but even apart from that the repurposed things from what they used to or at the trial say they're contradicting her her defense isn't right because the way they're  contradicting that her defense is not based on ok in that case they cite the levitt case where the dependent said hey i was cooperative she never said anything like that this isn't a yes correct i urge you to look at judge testimony that shows that the government's incendiary recording was completely unnecessary and bad gave them and fifty seven to fifty eight all of the facts that they ever needed or wanted the incentive recording was just completely prejudicial him now i've run into  can't include any payments that the defendant would have been entitled to receive in the absence of fraud and here at sentencing and again before this court the government hasn't denied that in the absence of fraud missed my wrist would have been entitled to receive at least fifty seven thousand four hundred dollars for the losses that she legitimately suffered but that's a surprise there was fraud here even if she was the victim of a burglary she did not cooperate as required in the insurance policy with the investigation of the burglary and committed fraud in that way so in some respects we are assuming that to be true for the purpose and it's an argument but what in the absence of fraud means your honor is in order for there to be a but for causal connection between the fraud and the loss you have to ask what would have happened if there hadn't been any fraud and then you have to compare that to  what happened in the world with fraud and it's the difference between what would have happened in those two scenarios that sets the upper limit loss and so what you have to look at is what would miss myra's have been entitled to receive if she hadn't committed any fraud at all and nobody denies at this point in the case that in that situation she would have been entitled to receive at least fifty seven thousand four hundred dollars that amount can't be included in intended last the district court  overwhelming and insufficiency is not challenged on appeal all of the disputed evidentiary questions were thoroughly briefed argued incorrectly decided below and the district court did not thoroughly air when it found that the the amount of intended for their particular to reach the issue of whether particular items were legitimate or illegitimate it simply said that because the defendant failed to comply at the outset the claims procedure for showing that the  loss she suffered was caused by a separate event that the court didn't need to look any further and that at that reasoning applies here as well my resulting answer based questions about how the loss occurred if she suspect anyone when was the last evidence of any kind of loss for sentencing purposes and in alpha house which the defense wrongly relies on the st circuit held that in a case like this one where it's almost impossible to separate what fact sixty thousand dollars because she actually lost sixty thousand dollars that was covered by the policy is that the government's argument that in that situation the amount of the last would be seventy thousand dollars  never asserted her for the minute rides so as the trigger any protection under the bus when the engines asked to take fingerprints she didn't say no she said not now and when it came back the next day she had more reasons why i was still a simply because he didn't remember one and so the case doesn't implicate any of the thornier constitutional questions that potentially may have arisen if a different witness at that in a position to to talk about a visible because it directly refuted the claims that myers was the victim of a burglary and that she did not know who the perpetrator was into almost a year later other than that i would i would only assert that the honor and if i could ask for one more bit of indulgence since so many other courts questions for about the sentencing issue i'd like to just briefly address the evidence share issues and then see if the remainder of my time  it your honor st of all let me just briefly touch on the claim that the evidence was overwhelming the government keeps saying that but we responded you know our briefs and showed why we had a credible answer to every piece of evidence they offered plus we had several instances of showing that the jury would mistrust the government spruikers it blew up in their face on a number they never respond to any of that they just keep saying the proof was overwhelming if it was they would have at a response to our arguments addressing prescott prescott did not claim her th amendment right either in fact she testified that she wasn't objecting and not letting the officers in based on the court's amendment but she got her th amendment protections anyway because that's what the th amendment is all about it doesn't matter who's being investigated prescott wasn't being investigated herself either it doesn't matter who's being investigated one has those rights to protect their own home and the fact that the search request was not mentioned if the government can just skip that  prescott becomes a dead letter and look look at these facts and what rosen testified not just the she gave an excuse but that she was agitated and defensive that she was an indicator of fraud that she was uncooperative the jury wasn't going to think that that was the f b i asking for help on a weather forecast they knew that that was something really important and that's where the constitutional rights get triggered and this is not a case like  because this was not a direct refutation of a claim of cooperation this was an argument based on the prohibited inference that if she were innocent she would have allowed the search and i'll yield the remainder of my time to mr nol saying the entire claim was proselyting and i think it's important to break out what they mean by that because the government did not argue to the district court and has not submitted any evidence that ms miers did not suffer a large number of  insurance policies so when they say entire claim is fraudulent what they mean is that in their view d it's myra's didn't provide the full truth to the insurance investigators and lied about back now we disagree with their account of the facts but the bottom line is that the government does not content if she had told the truth about everything they say she lied about she would have been entitled to a payment armors insurance roughly fifty seven thousand dollars and  question i'm fine thank you i would just like to ask you about the guideline range you talk about the subject of her to double the punishment but the range of level twelve to eighteen months which you are asking for would be four to ten months isn't that true that's correct your honor and the reason the judge could choose ten months and one versus fourteen months and we'd be arguing about basically four months that's that's possible your honor the reason and that's a question for him and the reason i say double is that i think that just report made pretty clear get that in mid range sentence was appropriate a mid range sentence in the four dollars to ten dollars range is seven months which  mid d range when the range is here now we might not say mid range if the range was there but i it doesn't go to the basis of your legal arguments but i was just pointing out that it might be the difference between