well start right away with united states versus sentencing was they believe the amount fell somewhere between four hundred thousand dollars and one million dollars and that they were going to rely on the insurance claim for your dishonesty as the basis for  the restitution amount so even the government at sentencing was not saying we think the full one point three million dollars can be attributed to criminal conduct the real problem was there was a real lack of document documentation at the credit union  the day when i reviewed the records they had they felt that four hundred ninety nine thousand dollars was the amount that they could reliably attribute to her criminal conduct they said yes it's possible the losses were due to that but that's extent that they thought the claims were a lot higher that the loss from the fraud was a lot higher there were thirty three member counts that were understated by one point three million  little more than half of the clients fraud was certainly more likely than not i think that would not meet the requirement that the figure has to be supported by a reliable methodology of the extent of fraud with respect to the documents they were able to produce in the counts they were able to document was pretty extensive and you know it would be extraordinary for mismanagement alone to be to be responsible for that kind of a loss that may or may not be the case but that there was not sufficient evidence in the record for the judge to make that final you know the the last restitution requirement is mandatory it can't be double count but neither is your client entitled to a benefit here because the way the fraud was conducted may documentation difficult we have allowed district courts to make reasonable estimates i understand why you would have a concern if you were being held accountable for one point three million but the court said you know to pete to pick dems paid out or were responsible for this money and the n c u a is going to be responsible on all the laws right aren't they the insurer for the fire thing ok that compensating them for half of what was the document to us was a reasonable way of understanding that that probably underestimated the risk the extent to which your client's fraud was responsible for this loss i still believe that that's not a sound enough methodology to support a finding by preponderance of the evidence  mismanage right and we don't really understand that distinction she was the manager and sometimes the sole employee of the board a lot of credit unions she's also on the on the board and no one has ever suggested that anyone did anything wrong other than her in fact the other employee was the one of the whistleblowers that brought this whole thing to life so what happened there is is on her now i think it's pretty hard to take but there is a difference freemount fisa nonfeasance that was the dichotomy that was set up in the discussions below right and you know poor record keeping and the inability to track amounts could make credit union vulnerable to fees and some other people kidney had in manipulating the records at the credit union in order to conceal her fraud and and i do not when do we need to presume that at all as a result of her fraud well i think certainly the n misappropriation and fraud applies but going to your other point i think would be pretty hard to draw a line between when she's stealing money and manipulating records to conceal that to draw the line which which part of that was was mere negligence and which part of that was  fraud ok ok but in any event perhaps one of the one way to address this is could judge sessions have ordered the full one point three million in restitution because that's the amount that the the credit union administration said we paid that out to the thirty three members that that that confirmed through the n c u a is a political procedures requiring affidavits and supporting documentation that they had lost that amount they have had a pretty exacting way of making these determinations and perhaps the reason why the judge sessions did that is because judge kearney as you as you mentioned there 's this issue of maybe maybe some part of it was not fraudulent it's all that was was negligent also at the same time that the anyway and see us said that the half million figure that they came up with was they indicated that it was at least that amount that she took so she said they said for example at a sixty two we believe the actual amount of funds misappropriated by debra kenney is a lot higher because the thirty three members share accounts that were understated by one point three million and they also said in the first page that they say at least half a million if not more so they seem to i think be suggesting the judge sessions that the figure is a lot more but with the burdens on the government to show by a preponderance right the amount that was lost and oh right and the district court we need to understand what his reasoning was in making this award and i was struck by how it was kind of conclusory and bless them step by step was his brief opinion he doesn't mention that i'm you know he's making a fifty fifty kind of judgment about the total one point three million dollar loss for example and doesn't seem to really address the double counting issue that your adversaries product where it looked to me as though one insurer was covering part of the other jurors loss that doesn't mean that you couldn't get to one point three or that the presumptions that you've suggested aren't correct but until little bit more difficult to follow than has been laid out here how would you respond to the government's burden that the court would it needs to in order to allow us to review it thank your honor you're right that the district court did not break out  lost by a loss or member by member how it got to the figure they got to but we submit that the court essentially safely underestimated the last amount in such a manner that he knew he wasn't the judge sessions knew that he wasn't up close to the  line so he comes in and i think it's eight hundred twelve thousand dollars and essentially just add to the add to the two sixty five and i think the district court's order does indicate that you know where the the total losses two point three million and the actual  right i don't think you need to ignore it but i think that the national credit union administration said that the one point three million was for the most part attributable to miss a proper misappropriation of funds and maybe that's also language you know for the most part that the district court was concerned about why it went you know half a million under the total out of pocket reimbursements may i ask you did the defendant herself put forward anything where there is evidence or even received shortly before the actual sentencing not early enough for the parties to the probation office to thoroughly vet imposition of the jail time when you say the sentencing yes because it was at that time that the skinny represented to the district court that she would cooperate fully with the courts in making what ever they deemed to be just restitution complete am i right you are right and the government put off by that because then for from june through december we tried to get formal counsel to pay attention to this and this can you do address the restitution issue and finally the district court scheduled a hearing the government's filed its me not file a responding memo at the hearing she made only very very general representations suggesting that she wanted to drag the process on further saying well maybe they would need an expert witness appointed by the court might have to have a contest in fact hearing and at that point we were ten months after the sentencing which the jail term was imposed and i think guidelines precisely and i think both judge sessions and certainly the government was it was a little impatient particularly where you had this pretty detailed  a report which yes they didn't they didn't dot every i as to the difference between malfeasance and negligence but i think judge sessions was pretty comfortable that where one point three million had been paid out to members who had lost their funds that an eight hundred twelve thousand restitution amount was safely below that total amount that it probably underestimated the five am i right in understanding the n c u a the five hundred thousand dollars figure the conservative figure they were saying we need to be able to show that money money was paid out and we have the documentation to show that it went directly to kandahar one of her friends i just want to completely and i think if they came up with four hundred ninety nine thousand good question iran we've always been a little unclear of how why the n c a a came to such a small figure because on the one hand they're saying you know over two million losses and we paid out over one point three million and that's only for the thirty three members that responded out of the thousand members that whose accounts went down when this credit union tanked i'm not quite sure why they came in with a half million figure although i think it's fair to assume that their their  their requirements for coming to that proposed restitution amount were considerably more exacting than the preponderance standard used by the the district court so for example the forney a loss they rejected because there wasn't supported sufficient supporting account documents establishing it were of course at sentencing where the hearsay rule does not bar information if there's sufficient industry over liability as there were here a district work and base findings on affidavit so i think the n c u a was being very cautious and very careful and judge sessions was more inclined to think listen she tank this entire credit union all these people lost all that money several million dollars employee was brought in a little bit late in the game miss can he remains the manager as she had been for years show where the losses caused by the crime so i don't want to suggest otherwise there but you're saying you showed it was a fraud it caused a one point three million dollars loss at least the n c u a said well some of it might be attributable evidence shows that ms kinney used this credit union as are basically her personal bank account or her slush fund to do with what she wished and over the course of several years she blew through hundreds and hundreds of thousands of dollars and  i think i think it would be very hard to say well this part of her fraud scheme or serial misrepresentation was due to malfeasance but but perhaps these  record what the judge said was that paid the two hundred sixty five thousand dollars based on full loss analysis and that was the basis for him that he said was the reason for him adding the two hundred sixty five dollars to the four hundred ninety nine thousand dollars loss that had already claimed so i think it's important to recognize what the reasoning of the court was and that that was there was simply no basis in the record for the court to conclude that humans had paid out this insurance award based on something other than the claim it had a claim for four hundred ninety nine thousand dollars and it had a limited liability silk course it only paid out its limited liability but it paid in full on the policy right now we're talking about the the end seaway which didn't get paid the full four hundred ninety nine from the insurer and in fact paid out one point three million what evidence is there to suggest that that one point three million was attributable to anything other than the fraud the evidence statements in its victim impact statement that some of the loss was me and when there we have the documents we have the record they've got one point three million dollars documented now to the extent that any you know small part of it could be attributable to the fees as i understand that but where is there any evidence to suggest that you know accounting errors or not keeping the books as clearly as you should accounted for a loss of more than half a million dollars well i don't think it was mis obligation to come forward with the evidence it was the government's there would be a preponderance basis to think that when you commit a fraud of this size you going to cause a loss in the now that the restitution is  i think the other confounding factor is that the government stated and if you look at p forty three the record at sentencing that they were going to claim as their basis for the last figure and that's what that's the argument that this can he obligation under the statute to make to give full restitution to the victim so my question to you is why what is it in the record that did not permit the district court to say that it is more likely than not that eight hundred twelve thousand three hundred twenty nine dollars is the appropriately ordered restitution i think what it is is the court's own statement of its reasoning which was based on this represented to the district court that she would cooperate fully with the courts in making what everything to be just restitution complete what was that representation i think she wants to make  to the extent that she's saying oh but not all fraud just her cooperation not her promise of cooperation not involve more than just saying well you know it's only the four hundred ninety nine