introduce mr ball and i'm brian wolfman i'm the director of the georgetown law immersion clinic which appears here today as amicus i wish to introduce an animal and who will present argument this morning is known as a law graduate immersion clinic i'd like to reserve two minutes for thank your honor mr adds offenses of conviction are not aggravated felony is for two independently sufficient reasons st they do not necessarily involve fraud or deceit and nd the government did not prove over ten thousand dollars in victim losses by clear and convincing evidence first material falsification under the can spam act does not necessarily involve fraud or deceit fraud or  requires the defendant to cause their victim to believe something false vontae uses almost those exact words quote to cause to believe the false close quote in other words fraud or deceit means fooling the victim material get the example of a definition of murder that includes a similar princes as by stabbing shooting or beating such a structure definition of murder would imply that any beating was always under all such circumstances murder in conjunction with full on the definition and deceit the actor process of deceiving looking that but that doesn't give us very much detail about what deceit actually means it's simply the active process of deceiving but then that same definition  webster's rd is also referenced in the law in more detail and velocity this court read it all the way through the actor process of deceiving which is then in turn defined as to cause to believe the false  material falsification in the context of tax fraud held that the crime was necessarily fraudulent or deceitful but here we have an entirely separate definition of material falsification in the can spam act so we wouldn't look to the supreme court's discussion of whether material false occasion correct your honor on the on the but all note that the discussion and how she was very very brief it's only about i believe it's only two paragraphs and looking here the document that element that the court discussed was the document in question was false as to a material matter and then the looking then to the definition on page forty four dollars the term deceit meant the act or process of deceiving as by false occasion concealment or cheating so you're right your honor that there was no sort of broken out result element in the crime that the supreme court dealt with but as we discussed in our brief i think it's a reasonable inference that as the definitions involuntarily discuss in detail honor it's the court goes into great detail on page two hundred and nine in the paragraph starting to be a argues to the contrary and then we see the court quote three definitions of fraud and i believe two definitions of deceiving and each include an element by which the victim would be cause to believe the false the definition of deceit is again false representations of material fact made with knowledge of their falsity and with intent to deceive the other party the representation must be believed again the restatement nd of torts of material factual misrepresentation with the intention that the other party rely there on resulting in justifiable reliance phrase but only that the term materially and if so then we're just combining that materially with the general in plain language understanding of what it means to falsify mislead doesn't doesn't to falsify connote some trickery indeed if the statute is defining materially but not redefining for us what to falsify needs trickery yes your honor i think i think the definition and due to goes not only to material but also to falsify and looking to the definition is materially false fight if it is altered or concealed in a manner the altered or concealed in a manner i think goes to falsify it's similar but not identical to the definitions usually voted except that after two the heading  to to say this is all that's right your honor but i also think it would be strange to read a definition that includes altered or concealed to that also make room for a different definition of fault of falsification i think the definition as a whole seems to be going to both the material and the sort of significance and also the falsification with the altered or concealed but it despite the header only saying materially ok let's stay activity or process and that implies that the deception doesn't have to be completely successful as long as this here make it more difficult harder to identify locate respond to the in the opinion that even deals with the question of whether tax fraud is necessarily fraudulent or deceitful and aside from quoting that passage in webster's furred rd the opinion does not sort of give an in depth treatment of what the definition of fraud or deceit may be i think we see a much more thorough treatment in valency and again and again the definitions quoted in philosophy by this court include the necessary component that the victim because to believe something false wasn't part of the material fact made with knowledge of their falsity and with intent to deceive the other party of excuse me that was the nine hundred and fifty six the i opinion black's law to induce another jack to his or hard to her detriment nor does it require deception which is defined as causing to believe yeah well right your honor but in parsing out the distinction between intent to injure and intent to defraud the court is looking to the definition of defraud so i think we can understand the court as relying on those definitions that it defendants were convicted of materially falsifying header information where the emails returned past were created by taking the recipients username and placing it before the domain name the court described that conduct as concealing the defendant's identities  they were prosecuted as materially falsifying but that conduct was not fraudulent or deceitful and if the government seems to agree with this point in their brief on pages twenty five dollars twenty six cents they agreed that in kilbride no reasonable recipient would have been misled into thinking he sent himself pornography so there we have it it's an example of the government prosecuting conduct as material falsification under the can spam act even though as the government agrees here that conduct would not have led the victims into believing something that was false as by false occasion concealment or cheating so we're not arguing that concealment cannot under any circumstances be deception lays out that concealment may be a means by which a victim is cause to believe something false but material falsification sweeps more broadly than that the material falsification of the can spam act the concealment does not necessarily have to cause the victim to believe something false the concealment does not have to be deceitful and so includes concealment that impairs the ability of the e mail recipient i s p or law enforcement to identify this under so even if the e mail sender could eventually be identified if the alteration or concealment of the header information made that process more difficult impaired the ability to identify locate or respond to him that would constitute material falsification under the can spam what about the  material false cation has to be done knowingly in both a three and a four and then there's also the mens rea prong of intentionally initiating transmission of the emails but pointing out that the material false nation has to be done knowingly just begs the question of what exactly has to be done knowingly what does haven't made that argument  my answer remains the same as before i think it would be strange to read de two as only defining materially header aside because it includes that altered or concealed  and even if your honor even if it's only read to define materially i think that our argument remains the same because again altered or concealed in a manner that would impair the ability of the recipient of the message to identify locate  so on and so forth it still doesn't require the victim to be cause to believe anything false so the bottom line conclusion that material falsification doesn't necessarily require fraud or deceit would remain the same if you can restate your argument  honor i don't believe that we're arguing that we can't look to the p s r i believe we're arguing that what's in the p s r is not enough for the government to carry its burden to prove clear and convincing evidence the government here made no effort at all to quantify victim loss on page one hundred and thirty three of the administrative record at footnote five in the i j s decision we see that the p s r indicated the victims were not identified restitution was not sought and the government determined that identifying victims and their last would be too challenging we also see that the record contains absolutely no indication at all that the victims of mr rad spamming offenses suffered any losses and instead the government and the i j a b i i relied only on the r's determination of mr rudd's gain from the securities fraud offenses of rich mr rudd was acquitted so that's double the wrong offender game cannot be a proxy for victim loss under the i and a in a way that would be piece of evidence and calculating victim loss but it's not enough for the government to simply calculate victim offender gain wholesale and not make any effort to then tie that persuasively to a calculation of victim loss and the government is very clear you're right it was the way the parts that you are i think that's right in the abstract that in some cases on some facts in some records a massive offender again would be persuasive evidence of victim loss exceeding ten thousand dollars but that's not true here that's not true on this record and that's not true for this offense the record doesn't show any losses to any victims of mr rudd spamming offenses at all and that's not surprising because as we lay out in our brief unlike traditional economic crimes spam violations don't require a sunders gain at the victim's expense the average spam offense simply doesn't result in pocket book losses to the victims it can be annoying to sort through your email when you get spam it may take up somebodies time and attention but the spa yes your honor that's exactly my point that the record doesn't reflect any losses from those offenses the government made no effort to quantify them and in fact there isn't even sort of a drive by reference in the indictment or in the p s r of any spamming victim suffering any loss at all the only reference to victim losses which is made in passing and not sort of quantified or investigated further are losses to victim investors of the securities fraud for example at paragraph forty that's regardless of whether he was he was convicted of of securities fraud or not it was conducted through the use of  concert with end sub one and requires the victim losses under at someone and sub one to be calculated based on the offense of conviction a lock is very clear we may not consider losses tied to charge but on convicted conduct like the securities fraud three counts of aiding and abetting bank fraud the total victim lost in that scheme or around forty eight thousand dollars but the defendant pled to only one count of aiding and abetting bank fraud with the victim loss of about five thousand dollars even though all of those three counts together were sentencing court as part of a common plan or scheme the court was very clear they had to cut off the calculation of sentencing losses at the one count of conviction because the text of the eye on a strictly requires removal orders to be based on the offenses of conviction and it would allow the government to do a run around of the conviction of the acquitted or dismissed counts today and calculate for the purposes of removal victim losses stemming from those charged but to establish by clear and convincing evidence over ten thousand dollars of that the losses stemming specifically from the spam offenses of women which mr rad was convicted on an ab as i've reviewed at least based on what's in this record that would be extremely challenging  deceiving someone but it has to be calculated to leave someone with a false impression and if you're using the recipient's e mail address in the header is if it were the sender no recipient is going to think said so i think that's their best hypo what's your response to that if if the recipient gets this email and see is that it's from me how is that deceptive they're right in the fact that and help provide those e mail address you're getting an e mail that has your name as the name of the e mail you're not going to believe you're sending it to yourself but that once again looks at looks at how how the victim for the recipient is interpreted whether they're believing or or not what was said but what is happening here is you're hiding the truth in kilbride they're hiding the truth of who the sender was they were sending it and say it was let's look at it does talk about concealment but it has to be deception by conceal it so what's the deception is the deception or maybe the recipient might think that his account was or something and it didn't come from some spammer who is hide it yeah i mean where is the deception the the tendency for intention to create a false belief of some sort in the recipient whether it succeeds or not how is the kilbride situation deceptive it's deceptive and the fact that you are sending this e mail address out this e mail out with this fake e mail address that hides the truth of who the sender and any time you're hiding the truth of something you have committed to see kwak whether someone believes that or not is another's is another thing a there deception well those type of anonymous you know most people are not using the of their fall formal legal name in their email address that can spam is not taking that false or misleading impression that we are talking about header information i don't think just using an anonymous email so faces but if you blocked out the header information but put nothing false is there would that be deceptive deceptive i think your colleagues point ms nolan says you have to do more than hide the truth you have to have a tendency at least to create a  just may have not what i'm trying to say may have not had a false impression bias and may have knew immediately that you were telling him and so it's really looking internally at who what the actor is doing what what the actor is doing for these formal elements of the sea or looking for conduct involving to see an affirmative act of of us simply false a vacation if it's more it is more properly understood to take that the triptych up boards there and say that those are all the ways that someone can trace an email back to its actual son sometimes it's through identifying them locating them or responding to them the purpose is you want to stop this e mail and and and so it shouldn't be finally parsed like that we're talking about an approach we're trying to compare these elements are two things that there is nothing out there that says that can't spam criminal christians are violated just because you can't locate the actual person and we need to remember to be done by the or falsifies and so the question is does the word falsifies provide a safe harbor for the person who's anonymous or gives with sickle but is not deceiving someone about material and and to do that this is a highly technical area for sometimes and altering is enough for a concealment is needed but the idea is how how does become material becomes apparent when you are hearing this ability to find the actual senders impairing the ability of a recipient a log for sense or of an internet service provider of finding this person now it is hiding the truth that the actual sender of this is not just blank g mail dot com a true domain name that can be reached that can that that either recipient law enforcement or internet service provider can stop the spam from being sent that it's not deceived it's not being and hiding it through jibberish the main names are fake the main names who are you know in and mr ross case that was sent through that such infected computers a can be easily traced back to the sender that's how i that's how  i understand the locate what is the identify locate a response to the actual sender not this not this exact identification oh this is you know this famous person hiding behind an anonymous  technical matter and again we're looking at this as a as a category it would then go home with q spam it would it would it would fall within the can spam act if an addition to u sing this anonymous name they had the specific intent to impair the ability to for someone or law enforcement or an internet service provider to get  state and so in addition to the false anonymous e mail name or it would be you are you are doing it with this intent to  circumstances pacific approach we're looking at factual circumstances of mr rats crime itself and here the district court held that because of the vastness of this spamming operation that went for almost two almost two years one hundred and twenty one campaigns forty different companies millions of spam being sent out and the a troubled by the fact that no restitution was woodard and the threshold of a sentencing is lower than the threshold and remove proceeding in terms of the burden of proof the governess has no i'm not your honor and it's for it because in this particularly case i am we are not asking for any kind of game to be used as a last in all cases and it d is the facts of this case is what makes the game all right we have a two million eight losses this one here was for the purpose of increase the stock prices they are and so that they could gain all this money at the expense of the game does not come out no and so  mr rat at sentencing nor now never distributes the vastness of his spamming operation he does not this that the purpose of the spamming operation was the stock's promotion idea sufficient for removal proceedings that need clarity mensing and that's why we look tort if there's any conflicting evidence in the record to to say well we can't look at sentencing evidence and here there's no conflicting evidence mr newell ye intended or potential evidence we have a conspiracy amongst mr rat and his conspirators to do this they gained eight point i'm sorry two  thousand dollars and that differential does matter and should be taken into consideration for whether it is clear and convincing evidence of certainly had the potential to have impacted at least ten thousand appeared rather perplexingly the government didn't bring to our attention but the district judge it's insane says we don't know who if anyone actually invested in these stocks nor do we know how the market place in terms of profit or loss of the securities did or how any loss may have been known to any particular victim we just don't have a real good sense of who lost what money if any if if that's the the district courts those statements recognized are recognizing the vastness of the scheme ne ne's not imposing an enhancement because he gained so much from this game but it's a and has so because the loss was not visible to that would have been the result of such a such a crime but i'm not going to point that there's no evidence here that the there even were victims that he's not faulting the government for not bringing the forward but  perhaps that's why there wasn't a conviction on securities fraud there was a conviction on one on the counts but given the district judges observations of sentencing that there's been no evidence that's presented of any victim losses and his sentencing based on the gains to the defendants how could we find by clear and convincing evidence that there's more than two thousand the circumstances under it someone had to have lost money a ten thousand dollars that's an inference that can be made more that's the beauty of a circumstance specific approach we can look to what would be real world or common call ways of viewing evidence and that's why the district court judge himself was like this is so fast i can't figure out if anyone lost money because we're talking about millions of e mails forty  the purpose of this convicted spamming screening scheme was the stock for motion concert whether that was a technical securities fraud violation is another question it's very much like in fenway where his the actual i think it was buying futures contract a contract was not charged and he was charged for false false statements with respect to those dispute that this was the motive and motive is a factual a circumstance that we can take under consideration and we're talking about such a significant amount of game we can conclude that there was a ten thousand dollars loss in other cases imminently that's not going to be the case consequently there needs to be proof of either actual or were intended loss right and the government didn't put in that proof that additional findings could be made the government it appears did not request to edit and eventually are hearing or attempt to put in additional record evidence then to substantiate losses why even if we agreed with you that you could meet that proof based on police evidence together from the trial to show actual losses or intended losses to particular victims why should we be giving the your honor we think on the face of on the face of the evidence and the ports decision this court can uphold this removal order as a finding of either actual loss the jury she was not convicted of conspiracy to commit a pump and dump scheme the judgment clearly denotes that he was convicted of count one of the superseding indictment and the i a e a seems to be under the misimpression that that spamming and the false registrations bearing whether they involve fraud or to see why i'm marking i'm not arguing that the securities fraud is that that conviction has to be taken into consideration i'm saying there is this factual circumstances it's that is undisputed that the purpose of the spamming the motive for the spamming operation was this stock promotion idea that's how mr rudd made all this money off the spam and annoying e mails does it here this bam was directly connected in a way to to gain money at someone else's expense the other investors and these in these stocks and so that's why in this i think the bottom line is that it doesn't matter because we see in kilbride the de a defendant can be convicted of materially falsifying header information or domain registration information under detail for conduct that is not necessarily fraudulent or deceitful oh my goodness wouldn't that be deceptive maybe slowly terry if you get past it that's enough to the silicate the success of the scheme that might happen your honor we can imagine a situation in which that would happen but the wouldn't that be enough because there still isn't necessarily that it doesn't even necessarily entail deception in the way that you're describing the government agrees with us on pages twenty five and twenty six of their brief that no reasonable recipient would have been misled into thinking he s free the government agrees with us here that kilbride does not require fraud or deceit for that prosecution under the can spam act so even though we can maybe imagine hypotheticals in which a recipient would be computerised by finding an email with their own user name in the from line a reasonable recipient the government agrees would not have been and in any event the government isn't required to prove any such tendency or entailment in proving material fal s under the can spam act on victim lost your honor again the government is relying both in their briefing and my friend on the other side here today is relying only on gains from the securities fraud and there's added nothing to the record so giving the government a stretch across but a rd bite at the apple i don't think there's anything to be gained from that here and a lock is very clear that we can look to charge but on convicted conduct in calculating victim loss and that's what the government relies very heavily on they rely very heavily on the a legit boffin on the alleged offender gain from the securities fraud conduct but again that's doubly wrong offender gain is not sufficient to predict them lost and looking to the securities fobbed violations is not permitted here