so let's turn to the next case on the calendar which i believe is united states versus cooney and do we have see my video not yet we'll wait for you to get on video trying to the game clock is paused while you're getting your video don't worry i'm not sure why it's not the passion just the computer it's not we did see you just a nd ago what i will say is that we're also perfectly prepared to hear your argument even without the video  we could do that i'm fine what we perceive that way i think that we'll be able to work just fine we often do this by telephone conference call and i think we have no problem understanding arguments so can you see they can you see us and can you see in the will thirty three dollars as it applies to mr and also to review her opinion at the sentencing hearing she specifically said that that she was not certain as to when mr cooney joined the conspiracy because she specifically a twenty eight minute and the twenty eight million was when he was was there he was talking about they were they were talking about discretionary liquidity one hundred trail excess money and then the he made that made a comment lalas but you're not arguing here anywhere that there was insufficient evidence against cooney here you're just arguing that we'll accept all the evidence against cooney but somehow he's not responsible for restitution  losses so i'm not sure why we would play evidence teesside piece as opposed to review the district court's ultimate conclusion so what i think what i'm asking the court to do involving a loan he received you look at those three categories those three categories are not this was all other act evidence this was for or be evidence that was was admitted and none of these acts which connect to mr cooney are connected to the victims in this case the victims there was to the defense's position is that there were two conspiracies the only counts relating to mr counts from the counts where he he was a passive investor and if you if you simply isolate and act no causal connection between his conduct and the loss that erd by the victims for example the fact that he i would love through there thank you very much let's hear from the government ma'am please support my name is nick r k k and i'm an assistant united states attorney here in the southern district of new york i represent the united states on this appeal and i also represented the united states in the proceedings below the defendant better than to any participated in a scheme to defraud two sets of victims as judge walker has already noted this morning st he victimized the walk pommy by inducing it to issue sixty one million dollars worth of travel on the proceeds of which he and his coconspirators used not for an annuity that they had promised me would find economic development projects but for their own personal use and to help build a financial services conglomerate that they would control and that they hoped to sell for profit nd he victimized ten pension funds all of which were clients of asset coconspirators acquired by investing their money in law and then among other fashion actions misappropriating client money for their own purposes after a six week trial a jury found cooney guilty of conspiracy to commit securities fraud and securities fraud who need to not challenge that conviction here at sentencing after having presided over the trial having made specific  willful participant in the scheme having reviewed a pre sentence investigation report and victim impact statements and having made specific findings with respect to the loss amount and number of victims at a  sentencing proceeding the district court was well within her discretion to hold that cooney or the reasonably foreseeable acts of his coconspirators victimized want pommy and ten pension funds and was well with in her discretion to hold him liable for restitution to all the victims at the district court held interest trial rulings and at sentencing quote ample evidence and demonstrated that  willful participant in the scheme that evidence including what judge walker has already outlined this morning included the following counties receipt of five million dollars in misappropriated bond percy's that had been taken from investment advisor clients the pension fund victims in this case which could be used to purchase five million dollars worth of additional was on the bond making up on the police that there was in fact a market for the sale documents to conceal his receipt and misuse of bond proceeds funneled through the fake annuity provider account in a holding company liable for restitution to the pension fund victims the district court specifically he attention to that concession in your brief regarding what you recommend to be the adjustment that we should make to the restitution order with respect to the  not object to that specific amount at sentencing in in preparing our brief and reviewing the victim impact statement provided by law cami as well as reviewing the restitution orders already entered against in the case we realize that a portion of the what tommy victim impact statement included bond that were expectation damages in other words not money that what tommy had incurred as losses already in connection to the doing it ourselves as opposed to vacating the restitution order in that limited regard and directing that the district court enter a modified judgment upon the record because the court is empowered to do so and rather than create additional additional for lack of a better term work for the district court to to to and then the order case that cited in our brief at this court simply modified the award to reduce it to the amount that that that the defendant had pointed out to him to reduce the amount that the dozen of the others whether we send it back to or do it ourselves can i also ask and maybe this is going to be a question for the next case whether the government is making a similar concession  and what are you planning to do with all of the other co defendants who judgments i presume have become final and i don't know that there are peoples pending in those other ones so but i assume that this is an issue that would apply across the board to all the defendants and maybe some of them are a lot maybe they're your judgment your final and maybe it's a moot point you know given the vast dollar amounts involved restitution but  worry that if you know some of these defendants are paying installment payments over time and the clerk's office is called upon to distribute them pro rata that the caret of payments might defendant raises an objection through whatever mechanisms are available to that defendant currently we will we will handle it at that point i'll note for the court that some of the defendants in particular jason golan is whose restitution were was st ordered in this case and then ordered again when he was recent and did not object to the amount that the law pani had stated in their victim impact statements nor did other of the defendants in this case including john the honest who whose cases up next before the court however and also know that as a practical matter oftentimes defendants say when they are able to pay back restitution and in this case that's not clear that any of the defendants will be able to to your point that it may be moot or academic when they are able to pay back restitution the government sometimes settles with those defendants for a particular amount that is then distributed to the victims and so while there is no ready mechanism necessarily available in each case we will certainly hear each defendant to the extent that they raise objections or that they want to raise the issue with the government and work  even though it had been forfeited by not being raised by the defense in in in cooney i'm wondering whether the government is taking the same approach and john the last considering it wasn't raised there either but here we are in appeal i think you are on are that that does seem like a potential avenue for solving this or resolving this issue and just putting the whole thing up at one time which w abrams was very specific to the role that that that the air purchase of the bonds and the fact that many and archer knew that that the object that the object of this conspiracy they had no reason to know at the time they purchase that their purchase or any of the surrounding evidence would have given them reason to know that that this was a criminal object just and that there was that this was clearly a bond there were there were a lawyers bond w categories of evidence that judge abrams focused on and to consider that evidence and whether there is a as a proper a finding that this evidence was the cause or reasonably foreseeable to mr cuny has ours the victims and his conduct i submit that it doesn't need this threshold and i kroger encourage your honour's to focus on the record and the fact that the district court was very the nd offering that that money was was you know he purchased those bonds knowing that they were they were still it was still part of and it wasn't it wasn't going back into the into the into the it was in benefiting the what  any way and and so busy it's and the jury found all of this you know it's so it's it's hard to you know you're you're you're sort of cherry picking little pieces of evidence and asking us to look at those when in fact there was an overall scheme in the that's after which which judge abrams relied upon is not sufficient to show a possible connection between his acts and the last of the victims and what i'm asking for your honour's this i are well thank you very much counsel we appreciate both of your arguments and we will take that under advisement