say why he does make a fact finding to tell me why the guidelines which allow it don't apply there is a we also raise the enhancement for leadership in your recent case of us vs earl meyer if seven fifty fifth third seven fifty nine you say that giving an instruction even one time makes the guidelines addition not clearly erroneous i think that disposes of that issue or at least i'm going to spending more time on it and then we also raise the four a four b issue of the introduction of the of the other crimes evidence concerning mr burke's conviction in ramsey county for like kind behavior i've been rather forceful in my brief and i won't say more about that but i will add that if reversed in fairness to mr burke's which i believe you should then the law loughlin would apply so let me take a moment to what do you think judge magnus should consider in his duplicitous we made plain from the beginning that we were guilty of fraud walmart did not because these checks were worthless and because wal mart is not a holder in due course there's no way under any circumstance by which the bank or the banks customer could become liable for that check it was a total fraud not in the presentation of the check but a presentation that you had the authority to be there so reviewed the discovery and talking with my client that's the first motion we made for before the magistrate judge for him to consider that's the first thing we did and we visited with the government and told them that so then you went to drown then we went to trial and in our opening statement we said that's why we're here we said the reach of the federal statute doesn't touch but you got the instruction that you wanted didn't you got the intent instruction that present on that you did more than your man did more than defraud wal mart i didn't see it as the jury did i saw it as a defense for my client and i told him let's go to trial because i don't think that  under federalism that the reach of the bank fraud you know this better than anybody to a column you wrote staple futile a parking about i didn't think it reached to a state crime and through jury when they hear the judge tell them lawyer of over forty years i just think it went by them wasn't there evidence that your man was involved in that split deposit scheme no not no  think my final issue of course is lawful and i think if you take the lawful no clarity of your staples case and the plate to ours that would be making you a super jury an ex post facto violation in so i think under either or if you think it should be judged under the now lawful and clarity of the law i believe he should order a new trial that's what i'm looking for acceptance of responsibility at least the two here morning your honor my name is robert m christensen i represent mr maxwell i have just two minutes and so i'll briefly discuss what we're here to talk about and what our appeal is about and we're asking this court to vacate remand for reset and sing for basically three reasons number one we believe the district court erred in calculating his offense level under the advisory guidelines in two ways number one by overstating his culpability regarding the loss amount and also overstating his culpability with regard to the number of victims that were found at the sentencing hearing with regard to those two issues the basic argument is that  the last some out also included the loss amount to a company called tele check which is not a bank mr maxwell pled guilty to the specific intent crime of defrauding a bank teller check is not a bank million dollar loss which would have been two points less under the advisory guidelines and given his high range on the guidelines that's a significant decrease and again  well it i don't think it is relevant conduct because it's not this is a specific intent crime and i'm sorry well i just believe that it should not have been counted for the reasons that i'm giving you if this is a specific intent crime to defraud a bank teller check is not a bank wasn't there one point two million listed though on the split deposit scheme there was why isn't that enough well i think if you subtract the amount of loss to tell a check it gets you below the million dollar range and that's why one of the reasons why it should be reset inst the other issue i want to emphasize is that tele check insured many retailers that were is purely who's the victim when you look at the definition of actual loss and that's the definition and none of these retailers suffered an actual loss yet they were counted in the number of victims and that led to a level supports our argument along the what about the government's point that there were more than three hundred identities use unlawfully is that supported no i don't think so i don't see them as they didn't suffer an actual loss and so my time is up i was only allowed two minute it please the court counsel regarding the single versus multiple conspiracy instruction there was not one overall agreement to perform various functions of the conspiracy if mr maxwell or mr merton or royals or bir that for that matter hopped on an airplane and flew to be xing china and walked into my donald's and gave a a check to the clerk one would not argue that that was foreseeable and that that was not some part of some separate conspiracy you would not want to hold mr powell responsible for that particular act mr pawle was not involved in burglaries and thefts of retail establishments he was not involved in buying valid money orders to use the robbery no numbers later he was not involved in buying or using blank plastic card stock and a printer to make phony id cards he did not use check creation software in this particular case he was not involved in going to a wal mart or a sam's club superseding indictment in this case speaks against thirteen defendants for conduct between two thousand and six and two thousand and eleven that's six years it involves retail establishments multiple states were entered by various defendants for criminal activity thirteen beyond minnesota i believe according to the government's brief one conspiracy was only involved involving thirty three defendants two criminal cases that were tried separately and sixteen defendants of which pled guilty by not giving the multiple conspiracy instruction in this particular case mr paul was prejudiced how by lumping them together with all other transactions and people going about their business creating criminal acts and he was unable to argue at the end of the case the multiple conspiracy instruction one conspiracy so what happened as all the evidence  transactions alleged by the government spilled over onto mr powell in this case and therefore he was prejudiced we ask his conviction be reversed with respect to the remaining arguments mr powell made we rest on the brief and mr hamilton's behalf this was an unusual case in that there was really only one witness who testified against mr hamilton at trial it's clear that the government going in thought that there were going to be t witnesses ms mcneely and ms williamson and as a matter of fact ms and ms nearly had had promised that she would do whatever it took because of her delicate family situation to help the government and know have their consideration she testified at trial given many opportunities to explain how mr hamilton or or others might have been involved with basically what happened next sort of questions she never mentioned mr hamilton finally at the end of her testimony after she gave a very detailed explanation of the fraud that it got on and who was involved she was asked the leading question wasn't mr hamilton there or involved in this somehow case proven this way before but what happened was she came on and talked about having been connected somehow to mr hamilton's brother ray for the purpose of a separate enterprise over in wisconsin where she was going to cash checks with ray her her testimony throughout concerning that and also concerning the check fraud in this case was very vague it was very conclusory and i  it was inherently incredible what she was trying to do was tell a story that helped the government to some extent but not get into any detail she was resistant even to the government's direct examination to some extent in many cases in the transcript you see that there was just there was no response to the government's questions she told the century the same story in both cases she said she went to his concert with re the connection to mr hamilton was he was mr hamilton's brother and mr hamilton introduced them and then she carried out the the conspiracy over there and they cashed checks and they had someone making identification and and checks for them the same as this one she made very clear though that mr hamilton was never involved she knew but probably know that there were cameras in those casinos and that that that someone could verify whether or not mr hamel hamilton was there she was very clear that after the introduction of everything she did she did with ray she was somewhat equivocal on whether or not mr hamilton got any money she first told the government i believe in direct examination that that he he had gotten some of the money and she related that some one of the people who made the checks and made the identification but she was very very good about it not on cross examination she made more clear that to the extent that he got any money from that separate enterprise that it was out of her generosity on her part she told the sensually the same story in this case she said she met mr powell and the rest of these people and again the the enterprise because of an introduction by mr hamilton but she was careful to say he threw out that mr hamilton wasn't really involved in giving her any direction giving her any checks giving her on any identification or participating with her but again she said that mr hamilton got some of that money and she expressed  dissatisfaction with the fact that he got money on occasion i think i have used up more than my share of the time here already you're honest but i would like to just boil it down to some questions that were asked in cross examination at the very end of trial counsel's cross examination he was somewhat frustrated hadn't really been able to get any specific answers to anything but at the end he said and it appears six of the transcript my car it never went into a bank with you correct she agreed correct he never went into a sam's club or wal mart with you correct correct he never told you to fill out  check correct correct so essentially you're saying that my client split some proceeds with you is that true and she said on some occasions that was the full extent of his involvement your honour's he was amount of law should be fourteen points instead of sixteen the underlying reason for that was mr royal's was incarcerated from july two thousand and seven to september of two thousand and eight and it was our position at the time of sentencing and as our position now that the last calculation should have been decreased during that period of time the court denied that very specifically stated at the time of sentencing that it would kind of all work out as far as the sentencing is concerned because mr royal's cooperated received a downward departure it's our position that as i've indicated in my brief kind of offhandedly the lower you start the lower you get  d you have any evidence that would do all from the conspiracy other than the fact no no there's there mr there isn't any affirmative showing as is reflected in the government's brief of mr royal's withdrawing from the conspiracy but i think we can conclude based upon the fact that he was incarcerated that they also don't have it have any evidence during that period of time that he participated i understand the argument of the government saying it was reasonably foreseeable but i believe that to be a stretch when you're in prison and i suggest that the enhancement should have been fourteen instead of sixteen and i think that would have made an ultimate difference with regard to the court's calculation as i indicated in my brief the ratio percentage ratio of downward departure is applied to a fourteen level increases a poor as opposed to a sixteen i think mr royall sentence would have been around seventy eight months and you know the arguments your honor i would rest on the brief thank you very much because the government has to live by it and what they ask the juror to do s a jury here that is guilty of aiding abetting bank fraud the evidence in this case and under staples and under dog law of the case they have to live by that that's the burden to assume and when you measure t the loan account involved september tenth twenty ten he's the one who wrote the check he's the one who signed the check he's the one who endorsed the check he's the one who went into the bank in the posit the check and he's the one who walked out from the bank with the money in his pocket the aiding and abetting destruction requires that somebody else executed a scheme or attempted executed scheme or artifice to defraud that someone else intended to defraud the bank and that alan aided and abetted and that for that reason that count has to be reverse at twenty one ten to twenty one twelve rounds you look there the judge looked at the instruction to judge basically said with respect to hamilton look at county eighteen and count twenty they're exactly the same with respect to hamilton the judge says there's no aiding and abetting here the government specifically went back  committed bank fraud it brings in principal a thing and betty agency here they did not request that was they requested aiding abetting bank fraud and it has to be reversed with respect to the conspiracy your honour's briefly in the conspiracy there's remove all links from alan to the conspiracy charge and he must be acquitted on that the final point is a jury instruction twenty two your honor and on that one i would ask the court to look at the thank you very much for your time unless you have some further erred by complete come close to that appellant more lack standing to challenge the search warrant of an apartment in for growth heights and by feeling to suppress the fruits of that illegal search the second major issue presented in this appeal is that the district court erred by failing to a stop the government from changing positions as to whether or not mr moore resided or lived at the search premises in this particular in this case you are there were seven search warrants issued in connection with this case and its memorandum of law in opposition to defendant's motion to press evidence seized as a result of the search of an apartment the government stated in their memorandum that they argue that mr moore did not have standing to assert or to object to the search of those premises six of the warrants there were seven the seventh warrant related strictly to the  apartment which is the subject of this appeal they made no reference they did not challenge standing they did in fact as they attached a the application for the warrant and the sworn affidavit by the police officer in support of their application for a warrant to their memorandum and they offered it at the suppression hearing as evidence the first time that the government took the position that mr moore did not live or did not reside at the apartment in in for grove heights and therefore did not have standing or did not have the legitimate expectation of privacy to challenge the warrant or in the search of the premises was at the oral argument on the motions at that time the defendant relied upon and pointed to the sworn affidavit the evidence of the government that in fact in fact asserted under oath by the police officer in making an application for a warrant to search the premises that in fact this was mr moore's residence mr moore resided lived at that apartment the magistrate judge in his report recommendation recommended to the district court that the motion that the that the search was illegal that mr moore in fact did have standing and that because during cross examination of the police officer certain in accuracies lies mischaracterizations untrue statements rose to the level where under franks the search warrant would be invalidated would be illegal and all of the fruits that search would need to be suppressed the district court did not affirm in fact the district court overruled and the basis for that was that the district court erroneously took the position that m mr moore in effect could not point to the government's own evidence that mr moore had standing or that mr moore had a legitimate expectation of privacy in that apartment the affidavit that was in the record that was offered by the government and introduced into evidence clearly stated that it was moore's residence that it was his that he lived there but the district court or on a lease iranis lee stated that mr moore c rely could not point to the government's own evidence evidence in the record to establish standing was the evidence from the apartment the only evidence that was entered against your client you know there were there were several witnesses who testified all of them except for one were convicted felons multiple convicted felons multiple who all had worked plea agreements and cooperation agreements with the government to testify against mr moore in exchange for a five k or downward departure they all it was it all came out very clearly they were totally incredible so the only evidence that convicted your client was evidence that came from the apartment there were dozens and dozens and dozens of pieces of evidence that came from the apartment yes your honor that were all linked by these same witnesses as being owned or used by mr moore the the that evidence should have been suppressed and without that evidence or because that evidence was made available and was put into evidence it rose the it rose to the level that my client did not get a fair trial his due process rights were violated and we  respectfully ask this court to reverse why would it be a due process violation rather than a fourth amendment violation well it is a fourth amendment violation your honor as far as that as far as the what's the due process theory the due process theory hearing as part of the second phase of the suppression hearing that the magistrate judge determined and based upon the the lies the misstatements of fact the untruths in the underlying affidavit that if you exercise those untruths there would not be sufficient probable cause to provide for a legal search of those premises executed the war fi there is value and experience standing and the supreme court has said in iraq us versus illinois as well as rawlings versus kentucky that simply showing that you have possession or ownership of an item that's in the residence doesn't necessarily give you standing to challenge the place to be searched my drama no your honor the trial evidence was such that there are individuals who believe that he lived there but not necessarily that he did live there just because individuals like for example the informant in the first case under the search warrant it was informants believe that the defendant lived there but in fact the government put on evidence and testimony as well as documents to show that the defendants name wasn't even on the lease in fact someone else rented this apartment just for the defendant just so that he could use it and the evidence showed by the police officers testimony it was actually a statement of an informant that he that the informant believe that the defendant lived there and there's a case of the ninth circuit's or menno that says that it's it's not evidence that statements in an affidavit are not evidence and these are mental case those are actually statements in a complaint that the defendant was relying on and it so that the defendant can't rely on statements in an affidavit as evidence is the defendant's burden to go forward and put on evidence of his standing and it's not just  informant's belief that he lived there there are a number of factors the defendant would have to prove or show that he in fact had standing including his access to the apartment this informant there was no information that the informant even went into the apartment he just simply met the defendant at this apartment and that's that testified that he lived there there are a number of and so they would all fall into the category of the just that they believe he lived there and there was no evidence that he lived there that's correct or are those witnesses had been to the apartment again to commit crime with the defendant for example two of the individuals went there to have their picture taken to create fake i d s that jamie interprets and in jamal williams those individuals believe that it was his apartment but there was no evidence  suggest that he actually did live there it was just that the implements of the crime were there for me some time before you said you may be a better disco's harmless error with regard to this evidence your honor so for example even what i have to do now in just some time whatever you well your honor this would be a good time to find me your honor the question was posed what evidence there was if this evidence from the apartment had not  been admitted at trial was there sufficient evidence to convict this defendant and clearly there were and mr barron brinker listed a number of other individuals who testified that the defendant was guilty of the crime including being involved in this conspiracy those include two that i've just mentioned jamal williams and jamie briggs and aside from the fact that they had their stolen or the other projects and identities made at the apartment and in heights they testified independently that they went with gordon moore to various financial establishment where jamie anger britain received counterfeit documents including fake i d s and counterfeit checks that gordon moore had made jamal testified that gordon moore made them independent of where he made them the fact that he made them gave them to jamal williams and and jamal williams testified to that fact jamie and testified to that fact as well the three of them went together to financial institutions and committed fraudulent transactions those are two individuals who also have robin finger who testified that she is the one  provided victim information from the department of psychology to judge gordon moore she provided victim information such as social security numbers bank routing information she provided that to gordon moore and then stephen maxwell and russell boyle's testified that they received that victim information from gordon moore again having nothing to do with the residence and in her grove height they receive that information from gordon moore and they used it to create counterfeit checks and fake i d s there was an testimony from individuals like  jackie cleveland and mary just who testified at a different trial that they used that they used that victim information and steven maxwell testified to mr moore's trial that he passed on that information to  the fake i d s and counterfeit checks could be used and in fact were used to commit fraudulent transit actions and so in addition to that as i said steven maxwell testified testified to their relationship with gordon moore and is a matter of fact i believe both of those individuals were asked and testify that they had never been to any resonance more what about on this question of a stop all the defendants brief quotes the government's closing argument referring to this location as more gordon moore's how his residence and so forth why should we be troubled by the government arguing that in final  focused on the ones where he says in closing argument the government lee repeatedly referred to this in closing i referred to it as the defendant's residence and then corrected myself and said the integral parts apartment there are a number of instances where witnesses testified that it was in fact the defendant's record residence but it was not the government's position nor did it try to prove that the defendant lived there in fact the government then put forth in its closing that in fact there was a witness who testified that she in fact rented in her own name just so that the defendant could use it and i referenced that in my closing as well the government has maintained all along that the defendant certainly used this apartment to commit his crime the things that they are were his but that it was not his residence the government put on evidence opposition to the motion it is your honor and as a matter of fact at the pretrial motions hearing the government was asked specifically whether what the government's position was with respect to standing and i said make no mistake the government  government's position is that the defendant has no standing with respect to any of the search warrants including specifically this one and then judge you know well ask the government to nevertheless put on its evidence and that's why the government put on the   or the piece of evidence and he believed it to be as residence that's correct and also on cross the defendant one of the references in his own brief was where mr barron brinker referred to an elicited testimony from one of the witnesses as to this being the defendant's residence i actually objected to that and was overruled trying to not a list of testimony that this was the defendant's residence if the if the government raised standing for the first time at the hearing as opposed to in its written response to the evidence of his standing right then and there and then the leads from his own testimony miss grant your honor and that certainly has been borne out by case law where the defendant can certainly take the stand he can testify as to his standing in the government can't use that against him later on support of the affidavit know well let me ask you about maxwell in a number of victims it seemed to me that your brief really relied on this identity theft theory that there were three hundred plus people whose identity were used in terms of the number of victims of a challenge to the number of victims well clearly there were i mean there were a larger portion of the victims in this case were individuals that under application for properly considered victims  this kind of case but did judge magnussen rely on that theory in finding the three hundred victims i couldn't find a finding about how many people's identities were used he made well there are certainly a reference to it in the pre sentence report in terms of the number of victims and it referenced that there were over three hundred in finding for the it was there were over three hundred or three hundred forty seven victims in the prisons who are breaded i didn't see were broke down who they were there was no i didn't see judge magnussen saying there were three hundred plus identities used at the trial in the sentencing no i apologize your honor but i was saying it at trial there was evidence presented concerning each of the victims and their role in the identity theft and so judge magnussen in making his rulings was relying i believe in part as was the pre sentence report writer in the breakdown of all of the transactions that were entered into by the various defendant and where can i find a breakdown of how the victims add up to more than three hundred and who they are that would be for example in the exhibits that i just mentioned the trial exhibits to all five which lists all the retailers and you know it doesn't doesn't was all the retailers what it does is and as the line items it lists every transaction including which victims information banking information was used which the victims security or scuse me a driver's license number was used at which bank and which bank information was used on each of the transactions each of the checks that was passed so it doesn't just list the financial institutions it also lacked a list individual victims whose information was used and so when you go through  ok well look at those sixty votes yes your honor you'll see it's a very lengthy the first one concerning the retail transactions i believe had over six hundred individual transactions that a list out the victims bank account information so the account number and routing numbers actually belonged to a victim and it's the victim's information that was there for use there's also the victim's names the signatures that were used being the victim's names also the victim's driver's who were both agents in the case that talked about specific transactions officer wicklow and went through several of the lines and explain for the jury how to read those different transactions or the exhibits as a whole and at the bottom of each of those exhibits was a total amount of loss for both intended loss as well as actual loss for the total of the transactions united states also presented that information again in its sentencing position pleading in judge magnuson ruled ahead of time on many of those arguments before actually having a sentencing hearing bank as well as from exhibit ninety six b which was the defendant's conviction in ramsey county for that very conduct that was admitted not as for for be evidence as part of the charge conspiracy that's clear evidence of the defendant's intent to fr bank there's also also other evidence of the defendant's intent to defraud a bank through the transactions which he was most which he was involved with as well at retail trant retail establishments like for example wal mart and while he may argue that he didn't intend to defraud a bank when he and others that he sent others to go in and commit these transactions in fact they engaged in so many different they provided so much real information went to such great lengths to ensure that these checks would in fact be accepted by not just wal mart but at the banks it was evident from the there was shown from the evidence for example the defendant used real driver's license numbers knowing that wal mart would check those driver's license numbers against their system to see if they'd ever been used in fraudulent transactions and so the defendants several witnesses testified that mr burke's included made sure that they had multiple driver's license numbers and in fact in some instances conducted more than one transaction in a wal mart using separate individuals driver's license number so that they could in fact make sure that the transaction went through wal mart and made it to the bank on top of that they made sure not to say that there was a reference by kevin martin that at first they were doing what was called scratch checks but they were actually changing the bank account number on the bottom but that didn't work with wal mart and in fact a lot of the transactions didn't work and so the numbers of the conspiracy learned and in fact then obtained a real bank account information from real victims so that those transactions actually would go through again not just wal mart but to the bank and so they counterfeit checks that they were creating had a real bank account numbers real routing numbers so that they would go through wal mart and to the bank and there was also evidence that these transactions in fact not all of them but many of them did hit a bank a bank was affected in there were witnesses that at trial they testified that in fact money was withdrawn from their bank not that the government is required to prove that a bank actually suffered a loss but in fact the victims did and these checks did hit the bank charged as a principle and if you read the language and going in the jury well if you look at the indictment the language is clear that it is him doing the transaction now the language in the instruction was that the defendant aided and abetted by others known and unknown committed the various crimes and was the defendant so it didn't say mr allen aided and abetted by others or mr maxwell or it was the defendants aided and abetted by others and you can see from the plain language of the charging document which way each of the defendants was charged for example there are individuals who are charged clearly is aiding and abetting because the language says that defendant powell calls the deposit of such and such transaction or such and such check he caused the deposit of a check by venetia williams and into her account so at but in with respect to count twenty mr allen's conduct is clearly a charge that he deposited a fraudulent check into his even know the question then becomes could he also be convicted as an aider and abettor yes he could the government also put on evidence that he was working with someone else namely joe powell and there's evidence that and this goes to mr allen s challenge to the fact of whether he was involved in a conspiracy to begin with and in fact there is evidence that mr allen was in fact working with joel powell and others to be involved in this conspiracy told powell was on the secretary of state record that were used to open one of the even cash flow accounts that is the central bank account joel powell was president and tom delaney was central bank testified that joel powell was present and actually tried to be a cosigner on that account tom de lay any suspecting that there was some mischief going on did not allow joe pallot to actually be a signer on the count on the account nevertheless he was there and attempted to be a sign around the account and the jury was entitled to infer real transactions they never had any legitimate transactions conducted on these accounts every transaction was conducted on any of the three even casual accounts were all fraudulent there was testimony testimony about that as well as evidence in the form of documents that w to the jury concerning that on top of that there was testimony from diane incarnates that she spoke with defendant allen who told her that he was involved in the real estate business in fact on the documents that were submitted to central bank the  defendant actually stated that the business was for health reasons and so the jury was entitled to infer from all of this that the defendant allen was involved in fraud when he opened these accounts these accounts were for no other legitimate purpose but to commit fraud and that he was engaged in t fraud with jol powell and others there were also phone calls between norman allen and joel pow right around before during after all of the fraudulent transactions and that evidence was also submitted at trial