you may receive good morning please the court my name is bob well from i represent robert buyer this case in a few sentences robert buyer began a company heroic life assurance back at the end of two thousand and eleven the beginning of two thousand and twelve he sought and he got money from various investors the alleged victims in the case were people for whom he had been a financial advisor the government charged a scheme to defraud their position was that the whole thing had been a fraud from the beginning that to for him to take these people's money the defense also in a nutshell in a couple of sentences was good faith that on the dates charge he did not intend to defraud the people from whom he got money defense was basically that he was an incompetent overconfident businessman but not a crook that he wasn't qualified to start a life insurance company but he went ahead and did so anyway in opening statement the defense defense counsel referred to his business processes basically ready fire aim that he really wasn't competent start a life insurance company the first point in the that i would like to talk about is actually point to in the brief it concerns the court's application of the vulnerable victim in a hansom and that application resulted in a miscalculation the guidelines and i want to talk about it first because i think it's a very important matter as as a point of policy and law for the for the courts that enhanced in this case was applied without any particular ised findings of why these these people were allegedly vulnerable victims counsel can i interrupt you when i looked at the sentencing hearing transcript there is testimony from two witnesses you all argue the judge clearly what the rule is you say it must be fact based you talk about why the facts don't war i know the judge at the end gives only one sentence but when you read those pushover either go it that's true and you know what i was going to say and i will talk about specific characteristics why these people work for orrible victims but i think this is an important area that requires vigilance by courts appeals because if this enhanced matter this characteristic isn't held to have have you know real requirements and real meanings you can almost say that any victim of a sort of a successful product was vulnerable because they were in fact successfully  is also i know there's some discussion that guidelines aren't subject to biggest challenges but it's also subject to that kind of problem if it doesn't have real standards and meanings and the the court's ruling on it and i understand there was a there the particularized findings give give later court something to review and guarantee you know help help guarantee against abuse what what what facts did the work in dispute this it seems to me that you eat you didn't jacks to the circumstances of the individual victims the alcoholism the disability the physical problems what was in dispute that the that you feel the court did not proceed with the specific resolution well the enhancement i understand targeting targeting based on is not required but the enhancement requires a finding of unusual vulnerability and that made it made the victim more and well and the probation office said the they didn't invest invest with him because they were unusually vulnerable they invested with him because the transcript reveals because there was he had a history of getting good  good getting good results for him for them that they were they were satisfied with his previous you know financial financial advice all four testified that they had basically walked the certainly the two that were in dispute testified that they had evaluated his prior service they thought they thought his prior work for them had been good and they had decided to invest some of the standards and there's no showing of like a lack of  sophistication investment sophistication on the part of any any of these people just actually the contrary i think the transcript reveals that and the government talks about financial distress and there was no showing that any of these people were in financial distress like like the people in who case that the government sites when they when they made the decision to invest and i think the one of the big flaws with the government's argument is particularly with regard to victim robinson is they concentrate on his condition after after the the offense and not his condition when he made the decision to invest but speaking specifically about  the transcript of the government call of one of buyers previous employers john huang who testified and this was a term i was familiar with before this case he testified that the frames were qualified investors and i believe at page one hundred sixty five of the transcript volume two he testified that the fanes had over a million dollars in assets and and robinson but he could have no income i think the question was about india to get testimony was unable to turn  into it i don't think there was testimony as to them having having regular income but right along testified that they had over a million dollars in assets fane testified that he invested based on representation of a high return that he was always trying to get the best return for his money that he had previously invested in risky investments including a movie and this is also cuts against vulnerable vulnerability is he he testified that and out of what was perhaps a million million dollars in assets their investment was ten thousand dollars which i think shows a degree of caution and sophistication that it's not like they invested the farm and there was testimony that after this initial investment he had out a broker and invested in stocks and bonds john long said he had over a million dollars in assets and another thing regarding the fans that cuts against vulnerability is and mr fa that also cuts against former ability that he would if you believe him he was able to get his investment back without the assistance of an attorney you mentioned a ten thousand dollar investment what were they and the best man amounts for the two victims at issue feigns was the least concentrates on his condition after after the offense and i would say there are other enhanced months at a place that cut covered that the consequences of the offense but but the  not that he developed some kind of vulnerability after no no no not that he developed a vulnerability i mean the the jack lew case that talks about financial distress involves people who are in financial distress prior to the alleged scheme and robinson testified he had a large railroad settlement and that he he also had a pension from from the railroad he was not in financial distress at the you know at the time he made the decision to invest and he also threw testimony indicated some degree of financial sophistic  with a limited amount of time i would like to talk about one other point that point one in the appellant's brief concerns the introduction over objection of evidence that robert buyer withdrew three hundred dollars from an a t m at a place called the penthouse club which i think in the transcript the he more than put this in issue when he talked about oh i was just trying to do a business and just using it on expenses and trying to build  think i understand what the court saying but i think the prejudice of that especially in the light of the rest of the government's case far outweighs any probative value that threw at that three hundred dollars a three hundred dollar withdrawal at a strip club has you because you know in the course of showing as the government doesn't these kinds of cases where the money went it sort of exhaustive painstaking examination of bank records they they introduced this this this strip club withdraw and their justification and i think strategically they did this early on because their their justification was you know it's really so hard to show where where money goes in these kinds of cases but you know because of where it was you know the jury can figure it out and i don't think their explanation of the difficulty a proof is borne out by the rest of the transcript because without  objection they they subsequent to this introduced evidence that the twenty three thousand spent on personal bills twenty thousand retail purchases twelve thousand on auto repairs and other things payments i don't have do you have a case it's kind of for you the shrum case in the have a daily case are pretty bad for you i disagree because those are those are tax cases which is a different different situation and  prostitution and one's gambling that's that's like a strip club but but in a in a tax case those those cases relate to the rape they much more directly relate to the nature of whether the the income was taxable here we've got a very minimal unnecessary unnecessarily prejudicial amount amount of money and just to develop this very quickly the reason it was pressure prejudicial was because he gave one of his investors a woman named robin magic all over seventy five thousand dollars back and the government very very clever and that was a problem for the government thought they had to explain and the government very very cleverly distinguished her from the other investors in the case because of the other message were elderly married couples and she was a younger physical trainer and they they said summarizing you can and the jury is seen as magic and they said you can figure out for yourself having seen her why he gave her the money back and it was prejudicial because they they used that evidence to suggest him giving her money back wasn't evidence of a lack of intent to defraud but just maybe a stronger urging taken over is what they were trying to argue that's what was prejudicial i've been well into my rebuttal time and thank you very well ms collins will hear from you for the government criminal conduct so it somewhat cut out a three part process for us one is to a done a five what the vulnerability is whether it be age or diminished mental capacity or some other characteristic two is to determine whether or not that g show that victim fein and victim robinson were both horrible victims victims fane was a vulnerable victim not because of his general tendency to drink or because he was an alcoholic it was because he was intoxicated at the time that he made the investment mr our victim feigns wife testified during trial on cross examination not on direct that her husband was intoxicated at the time of that a reasonable person would have known that mr  testified at sentencing that he in fact was intoxicated at the time that he made the investment and that the defendant would have known that additionally there was conversation between mr fein and mrs fane about whether or not they want to make this in saying alcoholism diminished mental capacity at the time that he made the investment and this is for victim fane the two witnesses who testified at the sentencing hearing after the after the government objected did they testifie was settlement of approximately three hundred fifteen thousand dollars and this was his sole income the defendant knew of this because he was his investment adviser at the time and helped him invest that money in addition to that the defend that his real testimony he did not make that exact statement what did exactly say well he said that he had three hundred fifty thousand dollars to last him and his entire life he testified that on the day of that  that even he received money from his wife and his mother to help him get gas in his car so he paints the picture that the three hundred fifteen thousand dollars that he depended on from that settlement had to last him his entire life and that train derailment happened when he was a y forty years old he also got a disability pension though right pete did ronna how does that make him i mean that makes him i suppose in a precarious financial situation concerned about the future but how does that make him particularly vulnerable to an end in investment what is the evidence that he was vulnerable to how he invested his money and evidence on that is that well known at forty years old that you only have three hundred fifteen thousand dollars plus a small pension to last you your entire life i think put you in a position where you are more willing to perhaps close a blind eye to things that are obvious in what the defendant was telling the investor so what are those facts alone enough for us to find or to for a district court to find that that's a vulnerable victim because simply their financial situation in combination with their age it's i don't know it can be honor i mean it's all of it's all fact they so tell me on this one what is that enough in this case or was there more it should be enough for victim robinson but if the court does not believe that that it is important to remember this court only needs to find that the defendant knew of one such vulnerability for one victim to uphold the district court's application so regardless of its fifteen fame with the diminished mental capacity or if it's victim robinson because he lacked financial are because you had financial distress that he lacked just occasion  victim or which vulnerability it found but this court can a farm for any reason based on the record well how does that fit with the anderson case the district court acknowledged i think quoted from  maybe a different case but it certainly courtney anderson standard where the court must give effect based explanation of what i have how do you going to square that with this record prosecutor in this case i did object to the fact that the that the pre sentence report did not include the vulnerable victim enhancement so that was the objection that you know if it was written i'm sorry to honor a nominee or up to you but you know if it was written the actual you i also like to address unless there's other questions on the part of the victim enhanced not at all to like to address the admission of the location evidence and when i say location evidence i'm referring to the three hundred dollars that was drawn personal benefit the prosecutor also explained much of which defense counsel said this morning is that the defendant believe that he had good intentions and had used some of the money for business purposes that the defendant are sorry the prosecutor  presented this evidence to rebut that presumption after the prosecutor explained why this information was relevant at the defense counsel sat and light of the overwhelming amount of you know expenses and money that were spent why they need to focus on a couple hundred dollars at a strip club i think is prejudicial i think the prejudicial value outweighs the probative effect this is clearly a for all three objection at no time at the sidebar was any mention made of a forum for b argument because this was a for  discretion and even if the court finds the district court abused its discretion it should be subject to a harmless error review this is not for all for be evidence this is direct evidence of the crime that was charged if for some reason this court believes that it approximately three hundred thirty thousand dollars thirty thousand dollars of that was cash so the government went through as defense counsel said went through painstaking ways of showing exactly where the money goes especially in a fraud case the government produced evidence that three hundred dollars was withdrawn an a t m at a national park in kentucky for the same reason that it showed that the three hundred dollars wolf was drawn at the gentlemen's club over in illinois it's to show that more likely than not the at the beginning of the case the government said we've got to get this three hundred dollars in because it's really hard to show that the money was spent on personal things in other situations but then later he says the government's showed that indeed thousands of dollars were spent on personal things so that the previous argument about the three hundred dollars was shown to be disingenuous i think is more or less what he was saying your honor what's your answer to that th hundred thirty thousand dollars three hundred thousand dollars of that was easily trackable and so that's probably what most of all how much the three hundred thousand dollars was easily trackable three hundred thousand three hundred thousand was easily trackable for personal use and that is probably what mr wolf from is referring to the thirty thousand dollars cash withdrawals the prosecutor decided to start the case in talking about the cash withdrawals how difficult it is to track where cash go showing you didn't have other evidence on the cash withdrawals that came in later which showed the cash we show that three hundred dollars with was drawn at a national park and we show the three hundred dollars with was drawn at this gentleman's club so in trying to track down wh passed went that was the evidence that the government provided what was the three hundred thousand dollars that was one hundred thousand dollars was not cash so that was able you were able to find that through credit records or bank records regarding you know checks and  wires things of that sort so you're saying as to the thirty thousand cash you didn't have other evidence of these two three hundred drawings correct but now that any of the cash not of any of the thirty thousand the three hundred dollars  reply brief that the jury is left to believe that perhaps the defendant used that that money and spent that time of the gentlemen's club on things such as lap dances but his play drug purchases prosecution prostitution but what i like to remind this court is that in united states versus from this case this court season he said that the prosecutor cannot be limited from making a proper determination because our demonstration because the defendant used the money for question a lens that would simply be equivalent to a drug case in which a prosecutor would not be able to show what the drug dealer did with the money simply because he put it to questionable ends so given the broad discretion that's given to this district court in determining whether evidence is unfairly prejudicial and this evidence was that the district court is in the best position to evaluate because they the district were seized with the witnesses and to determine credibility there if you examine the transcript there were disputes of fact between fane and his wife he said i got the money back without higher hiring an attorney and his wife contradict contradicted him on that so that the district court didn't make findings there was no they they're talking about diminished mental capacity here today this record didn't make any such  finding there was no medical testimony and i would just be wary of the government saying there's forty pages surely you can find something there i think properly the district about district court adopting the finding the objection of the government