the constructive amendment the issue here is somewhat different than the issue of whether the instructions themselves adequately covered the elements of the  crime of conspiracy to commit milk fraud the indictment very clearly set out what the allegation was and this was the indictment that was with force  any a scheme in an artifice to defraud but then i went on to say that they and they also use the united states mail and any private or commercial interstate carrier to execute the scheme and artifice to  fraud in violation of title eighteen section thirteen forty one mail fraud when the court gave the instructions to the jury i didn't say that what it said was that it laid out the it laid out the elements of the crime of conspiracy and it did that quite clearly and it talked about the objective of the conspiracy being to defraud individuals of the equity in their homes and so forth and it wasn't until the second part of the set of instructions which dealt soley with another defendant charles head and who is charged with mail fraud it was at that point that the court actually explained what this united states code section was also what's our standard of review here and there was no objection made at the time as i understand it plainer well one of the elements of plane error is prejudice i mean that's a shorthand but there was a stipulation in this case is i understand it that the mails were used to send deeds to the owners of the property and there was evidence that your client had discussed overnighting documents with one of the what possible prejudice is there to your client the precious and that's why that's why this this issue is actually different from the issue of whether the instruction was correct because under this  under this argument the issue is whether or not macoris was into whether he was tried for the same crime that the grand jury indicted him well that there's an it seems to me that there's no possibility that the jury would convicted him on some other theory you have and what i've just said about the stipulation and the other evidence of mailing i guess i just don't see how it could possibly mean oh i think you're onto something else and should we read instruct as a whole not just one piece of it well what would happen is there was so much overwhelming evidence of fraud here there's no question of that that you know most of it went to charles head but since the cards was try and the actual acts of mail fraud or are charged as overt acts and further into the conspiracy are they not i frankly am at a bit of a loss to understand why why you opened this issue this is not your strongest argument well another because i think it's it's somewhat difficult to i don't understand in the sense as more complex arguments a different argument and then the argument that the instruction was once an agreement is reached to engage in illegal conduct which is found by the jury to be in furtherance of the conspiracy completes the crime of conspiracy under federal law does it not yes so what's the problem here the question is whether whether the instructions left out an essential element of the crime charged by the grand jury not the not the theoretical crime of mail fraud not not but in light of the description of the charge you can't leave something out but what wasn't the jury told that they have to determine that at the time that the defendant joined the conspiracy that these acts were reasonably foreseeable acts that would be carried out in furtheran of the conspiracy yes so again what worse the error here i mean it looked to me like she gave a correct statement in her jury instructions of the law of conspiracy and pinkerton in the instruction and the way it was given in the fact that the conspiracy only applied the conspiracy instruction only applied to the current and head and then they may all right doesn't have to commit the overt act all he has to do is knowingly join the conspiracy to commit fraud and there after a coconspirator commits an act in furtherance of the conspiracy correct that the indictment up with the instructions they're different the letter if i may on move on because i don't know i don't know i have a limited amount of time here i want to talk about sentencing and terms of the amount of the loss the way this scheme was structured there were two two ends to it one was bringing the the victims and the homeowner victims in and among carnes was a salesperson consultant underwriter they call them various things his job was to lure these people in and he was he was good at it and he would brag about it but he had no dealings with the lenders lenders was benjamin boot offs responsibility and co yang's responsibility so there's there's practically no evidence that  any responsibility with regard to dealing with my current good how does mccartney think he's going to get paid if he brings in these victims in the scheme is to defraud them of the equity in their homes by getting them to deed the property so that loans can be obtained for the maximum amount available in the equity which then gets skimmed off the top when the house is foreclosed well where did mr mccance think the money was coming from to pay him his commission well he probably knew that he knew where the money was coming from but that's not the source doesn't that make it foreseeable nine hundred not on the sentencing guidelines are supposed to be forseeable within the scope of his agreement with the  ors you know that you're taking an incredibly narrow view of a conspiracy under three seventy one and thirty forty one and thirty and forty three and frankly well the having a hard time understanding the logic of the conspiracy but in terms of his role in the conspiracy which was dealing with the homeowners to the stand that the sentencing the amount of the law should've been figured it should have been figured based on the forseeable amount of loss to the homeowners because it wasn't his job it wasn't part of his responsibility sure it was part of the conspiracy but that's not the issue with regard to sentencing and to valuing any different from a drug conspiracy where the coconspirator is tagged for the entire scope of the quantity of narcotics distributed by the enterprise whether he personally distributed all the drugs or not well if it's reasonably foreseeable to him that all this money is going to be fleeced from as many victims as the conspirators can lure into the scheme why is it unfair under the sentencing guidelines to tag him for the amounts that are reasonably foreseeable from the successful perpetuation of the scheme well because in this in this particular scheme there was a b roles these that the people dealing with the lenders were in different offices they were a different set of people they were also what difference does that make if mcconnachie knew that lenders were involved he also  right but in terms of the role he was playing with regard to this to this game i've only got a couple minutes let me just deal with the rolling of the guys because they got three points for this there's there's no it managed anybody been disciplined anyone who didn't hire anyone he was it isn't your main point that almost the entirety of the evidence about his role postdates the end of the conspiracy has churched scuse me isn't the essence of your argument that the evidence with one or two tiny exceptions all post dates the end of the conspiracy as it was charged  role that he took on later would have happened during the existence of the conspiracy or is that not a fair inference it's not a fair and fresh because for two reasons number  accepted that if he worked his way up then at best we don't know when is your point then at best when those e mails show that you know finally when this other guy bought the company my car instead worked his way up but good morning or may please the court matthew morrison represent the united states i was one of two of the prosecutors at trial and at the sentencing in this case you're going to focus on items that have come up here in an argument and then try if i have time to address the various other issues that are raised there were many i think a total issues on this question of the constructive amendment your honor i agree with with you judge tom in that there is no error here the instructions are correct they simply reflect what was actually charged which  was this was a conspiracy that involves the use of the mails that stated in in the indictment and then the instructions correctly said laid out the elements of conspiracy to commit mail fraud and then additionally correct correctly laid out the elements of mail fraud with respect to a coconspirator that's not clear your honor so it does say that charles head is charged with the substantive counts and then says but for a person to be guilty of that here's what those elements are all but  i'm trying to recall now if there was an instruction to try to keep the defendant straight and to deal with each one separately i think that's usually a standard instruction so if it says you know defendant is charged with  what each person is charged with and then instruction twenty one of the next page except the record two thirty four is where the elements of conspiracy are set out and then instruction twenty six yard to forty was the elements of the sudden right when it starts out by saying charles head is charged with mail fraud blah blah blah and it says the defendant meaning charles have did these things and which gets to the i think even if the court would not agree with judge tallman and the government that there was no happen if this had been instructed as it is the same thing you still would have stipulated that mailings were involved he still would have stipulated that these e mails show that he's talking about the mailings and there's no allegation that these two instructions twenty one and twenty six misstate any element so all we would do would be go back and try to find a way to balance twenty one and twenty six in a way that more clearly resolve this issue and that really gets to the issue of why this is up on plane air review that rule thirty says you're supposed to object to these before the jury gets the instructions to give the district judge the judge the opportunity to work these out with the parties i have a question for you that is not related to any of the issues that have been argued so far and it's just that what i call the shorthand t two and so forth is this a common thing in this district for judges to use the shorthand yes your honor it is i i and my experience i would say almost always especially if it's one of these ones for a continuance on what we call t fo which is an ends of justice and you just for defense preparation if it were a less frequently used exclusion when you get into things like a co defendants not available or we've written into state custody for a state proceeding there are local codes that apply to those but they're used far less often the stated purpose and general order for seventy nine is the shorthand makes it more efficient to make the findings and more efficient for the courtroom deputies to document on the docket why the exclusion was made so they are they  are used frequently especially for the most common ones to avoid at frankly the recitation of statutory language and or statutory citations for exclusion for the next two months is much different than i find at the ends of justice granted and then having to cite thirty one service really mark areas because i haven't and wasn't familiar with that previously very common practice in the district around and it's also fairly common practice in state court in california is it not that's outside my understanding your honor as well as i i don't know they like they like these preprinted forms where you just go through check that i have seen call the next case that i have seen that when we get those those documents as part of a criminal history my other concern is about the  about the leadership role basically it seemed like all the evidence save maybe one or two maybe two e mails all significantly post date the end of the conspiracy ass charged and i just was was troubled by the reliance on a leadership role potentially acquired after the end of the conspiracy as charged because that wouldn't mean that he was a leader during the time of the conspiracy so what is your best evidence in the record that demonstrates the applicability of that enhancement during the time of the conspiracy before june of two thousand and six let me address that or answer that first by saying it's not the case that the conspiracy ends in june so that the language of the indictment specifically s until at least june thirtieth of two thousand and six and in fact the overt acts that are listed for mr karr is this is paragraph thirty one of the indictment specifically listed overt acts that happened in august of two thousand and six so it's clear that the conspiracy as charge doesn't and in june it goes at least june thirtieth with overt acts at least into august second answer to that is the court the district court found that the relevant conduct included conduct at least from the carne's up until the very end so the leadership could have been exerted in october and having found that the relevant conduct is there as a fair application to him and finally then i think to get to the third answer the question it isn't just one or two emails so we have all the way back in may to well yeah well it's not a lot before june of two thousand and six some of it was in october of two thousand and six as i recall that some retraining the salespeople stuff had retraining part of the training was in october of two thousand  there's no date on the organizational chart the organizational chart certainly reflects what is in those e mails and in october when was that prepared we don't know your honor but it does reflect the same five people who are under mr a current on the organization char are the ones that he's instructing and telling you i'm going to retrain you in october but likewise august of two thousand and six during the month when the overt acts are actually charged in the indictment is when he's directing people to pay off vendors for appraisals that were done on a notary functions that were done in different states and in june of two thousand and sixty even if the court were to use june of two thousand and six as the ending date that the indictment clearly says it goes beyond that that's where the e mails are where he's assigning tasks to junior lo that there was no change that this was a sham transaction essentially that once the f b i started calling charles had executed a paper a sale of a cunt the company but the insiders gang and keith broke markel both testified there was no was the eighth issue raised which is the substantive reasonableness of the sentence chichi very downward by six years below the low end so i guess what i'm asking is does it make any difference with regard to the and handsome and for leadership or supervisory role given the fact that she departed downward by seventy two months your honor it certainly want to before i answer that i want to see exactly where the guidelines would have come out if there were three levels last i think that's right another guidelines in this case the guideline sentence actually is the statutory maximum so all the enhancements i mean that's an interesting conversation but all the enhanced most are not relevant because the guideline sentence is two hundred forty mile it was and so and in the unlikely event that i'll address then there's this question of loss just briefly while i can to be clear it isn't just just what was reasonably foreseeable dominic makarios confessed in a in a in an interview while he was in state prison and different charges to the agents in this case that he knew that false statements were being made to lenders about the seeding of the straw buyers accounts so there are some defendants who knew about the loss to lenders but not homeowners there were some defendants who knew about losses to homeowners but not current was one of the handful who who knew and admitted that he knew about false statements being made on both ends of the scheme and just told him i think your analysis is correct that for somebody who is as involved as he is where do you think the money is coming from is a fair argument for anybody but in this case he says he knew it was coming from he knew what was going on which is that they were having to make false representation to lenders about these straw buyers in order to get the money it's one thing to convince somebody to sign over title and  equity you don't actually get your hands on the cash until a new lender comes in and finances up to the level of the value of the house and that's how you get that equity that they were they were searching for so i think i've covered the three items tha two thousand and seventeen those two unpublished opinions relied on this court's published opinion in medina that says there's no requirement to recite the statutory language as long as the record shows what was being considered i think we've addressed the  instructions the question of his identity being proven this was not preserved in a rule twenty nine motions so it's waived even if it had been preserved in the rule twenty nine motion there was ample evidence of his identity at the time that the twenty nine motion should have been made that included even his own stipulations that that these e mails were in fact sent and received by him because the lawyer introducing him to the jury as the defendant insiders testifying about his role and the law enforcement interview granted none of those people actually did in court stand up yes i'm pointing at the defendant but this court says that's not required where this other evidence allows the inference and then with one of his witnesses i did it in court identification number of the defense  on the question of the severance there was no improper spillover of evidence here there was we're talking about a five week mortgage fraud trial and the complaint is that one e mail government's exhibit one hundred one and two witnesses an insider and a victim of charles had specifically testified about charles head's knowledge in every instance where that evidence came in the government stopped asking the district judge now would be the time that would be appropriate for you to get the formal for the instruction the court gave the instruction every time we reference that in our closing argument we said and remember this is one of those items that is admissible only against charles had and of course the district court reaffirmed that in the final instructions and that's what you heard two thirty we've addressed the question of lost the section of the transcript is nine million she found to be slightly more than twelve million on the question of the vulnerable victims and handsome and peters is the case that's on point peters of the case that the district court cited the district court considered and rejected whether cast on osa somehow changes peters this court has considered and rejected whether cast on us has changed peters and that's in the why skittle case that cited by the defense and then into prior cases out of this particular conspiracy vulnerable victims and has been has been applied and up held by this court and that was with leonard no judge graber you were on that panel as well as charles had and mike had it applied to them in both cases the panel cited simply to peter's and said in light of peter's that's what's appropriate in this case both departures and variance as engaged with the parties arguments and ultimately concluded that a sentence six years below the guidelines was the appropriate sentence in light of the factors of thirty five fifty three almost out of time if there's any other questions i'll address those guidelines a sentence and the case law in the ninth circuit is that it's if the guidelines are miscalculated it's a procedural error  one sentence here is two hundred forty months the statutory maximum right right but is that right do you think do you agree that the statutory maximum use  guideline sentence in this case yes it's twenty years but the question is whether when if you knock off assuming we are correct and that they get a court errored and greater than two hundred forty months and so under guideline five g one point one the statutory maximum is the use of the guidelines so why isn't all that issues that the district court took into account when she knocked off six years instead of say seven years or eight years was the fact that she considered him to be a supervisor or manager within the meaning of the guidelines  remain and would give her the opportunity to reconsider that and i think that the current should have the opportunity to argue that because if if a mistake was made here  then the question becomes whether that would have affected her ultimate sentence and i think it's impossible to know and at that point i don't think the court thank you for that case just argue