i'm richard levin i represent norman seabrook one appeal from his conviction for on a services fraud and his fifty eight month sentence he's presently at liberty pending this appeal we've raised two issues on appeal i will concentrate on the st issue but of course i'm happy to address the nd one as well whether or not the district court erred when it permitted the government to introduce evidence that mr seabrooks union lost nineteen million dollars of its twenty million dollars investment in  partners hedge fund some two and a half years after mr seabrook recommended those investments and indeed some six months after mr seabrook was arrested in this case the government has posited three rationales for admitting loss evidence relevant evidence has to tend to prove or disprove a matter that's in dispute if we put aside the fact that that the reasonable for sea ability that a hedge fund could lose money is not seriously in doubt there's no question that reasonable for c ability has to be determined based upon the events occurring on day one when reasonable for sale is reasonable for c ability supposedly occurs for example if i bought a car and the question was whether or not it was forseeable that the battery my might break at sometime in the future it certainly would be relevant if i had been handed a manual at the time i purchased the car the car that warned me that the battery might fail in the future it would not be relevant however unless we live in some kind of a time warp that two years down the road too many half years down the road the battery in fact failed because that would say absolutely relevant if you drove off the lot and the battery failed immediately like we would  was going to be defective in two seconds after he drives off the lot the battery fails the jury is not going to know that no one should know that it's not at all probative of whether there was a problem with the battery well the question is whether or not in the in this case the question is whether or not it was reasonably forseeable  two pieces to reasonable foreseeability one is the subjective part of it is it forseeable to that person but if it's just never going to happen then it wouldn't be reasonably foreseeable of course we don't know something will never ha because it could happen at any time in the future well but just because it's a long and it wouldn't be reasonably foreseeable even if the defendant was subjectively aware of a point  percent chance of failure right there has to be some actual serious chance for something to be reasonably foreseeable has be reasonable for for a person to believe that it was forseeable it's certainly reasonable for a person to believe  if they're told it's forseeable and in fact what happened in this case your honor was that the government was permitted to introduce very potent evidence that in fact it was reasonably forsee and they were permitted to learn for example that the prospect from platinum partners explicitly said don't invest in this hedge fund unless you are prepared to lose your entire this was unseated mr seabrook to acknowledge that it was reasonably forseeable and that was taken out of the case it was never in of reasonable for c ability was because it permitted the government to argue that that mr seabrook put his own interests above yes that he personally for saw it as a possibility but doesn't it also matter how significant the risk was st i don't think that it does the only issue want to repeat key is whether or not it should be considered reasonably forseeable that's the issue and isn't reasonable foreseeability about whether it's a real it's a serious risk it's a serious risk if the if the prospectus tells you it's a serious risk it's a serious risk if your own attorney tells you it's a serious risk it's not a serious risk at the time of the investment if two and a half years down the road six months after mr seabrook is arrested that in fact the the hedge fund goes bust for whatever reason it went bust in any of it to the extent that it had the slightest relevance at all and i don't think it had any relevance to the extent it had the slightest relevance at all on clearly the government was more than satisfied with what ever rights it happened by introducing the evidence of the prospectus that warned in no uncertain it was a fact that this hedge fund at this time was hemorrhaging money and needed to get these investments now mr seabrook didn't know that right that he didn't he didn't he was not privy to that information is that therefore irrelevant to assessing whether this was a reasonably foreseeable risky investment i believe that that that it was relevant to the case but not relevant to the reason reasonable for seattle forseen ability issue and certainly why is it reasonable why is it relevant at all to the case once mr you've developed is not on trial with because i believe why is it relevant to the case at all because it explains it explains why why the mr seabrook so is relevant for certain purposes although one could argue about that but i don't think that it was relevant to the issue of reason to forsee billeted which is really something that has to be to do them act that there was a significant objective significant risk of the fund going bankrupt at the time is relevant but it is not relevant to that question that it actually did go bankrupt not that long after this investment is made what actually was quite a bit it was two half years after the investment and six months after mr seabrook was arrested in this case sound that are considering that no one took the money out before then or was able to actually a one million dollars was in fact taken out only in the live present uses and about the harm so you just said that there was all this evidence of everyone was aware that there was a risk that it could go bust so introducing evidence that in fact did go bust at a later date harm your clients well that's a good question and it's very easily answered in several different ways one way was was that we know that at the st trial when this evidence was not admitted the jury was hung and it was a hunk just by one juror was hung by several jurors and the only difference between the st trial in the nd trial the only meaningful difference was the last evidence also we know when we look at the way in which this evidence was used it was used in precisely the way the government promised it would not use the evidence so in other words the government in order to convince judge hellerstein to permit it to use the evidence said very clearly that we understand we understand it would be wrong for us and i cited a case it would be wrong for us to argue how this loss impacted the lives of so called victims and we're not going to do it and they pledged not to do it and yet when when in fact this case was argued to the jury it did exactly the opposite it did exactly the opposite union member dues and retirement money owed to hard working men and women of cobra lost one million dollars of union member dues and retirement funds lost in bankruptcy but norman seabrook sixty thousand dollars richer i doubt very seriously if we're going to recover any of the nineteen million dollars so not only did they think it was lost but then there was testimony that we wrote it off then on closing argument and the government in its brief the nice having said this but in closing argument what the government argued was nineteen million dollars gone retirement money gone and that's what this case is about that's why we're here that's why we're here then the government argued money that was supposed to help ease the paths of people who have a dangerous job and important job into retirement good men and women who deserve representation who deserved better than somebody who would betray them the government precisely the arguments that it acknowledged it was not permitted to make and which it acknowledged would be reversible error and yet it made those arguments anyway the government also allege that this evidence was was relevant to show mr seabrooks intent to cause a peculiarity loss to the union that was precisely the opposite of what the government's theory of the case was the government's theory of the case was that mr seabrook was offered ten percent of the profits that platinum partners would make of a successful investment if the union made money so now the government is arguing use relevant to his intent to cause harm to the union when in fact the only way mr seabrook under the theory of the case would have made money would be if the union made money and if the hedge fund made money there is not a theory that the government has positive relevance that holds weight here and certainly the way the government exploited this evidence was precisely the way they promised not to precisely the way they agreed would be reversible error and they did it anyway and they did it bust respectfully we suggest because they thought they would get away with it because they knew they needed it because they knew that when they didn't have it at the st trial they didn't win the st trial the jury was hung on not just and thank you your time has expired yes your hon wire fraud yet the district court use not the guidelines for fraud but the guidelines for commercial bribery which more than triple the applicable guidelines range now the government confesses error here it concedes that the district court heard him using the bribery guideline but remarkably it contends that the massive resulting error here was harmless simply because the court stated in passing that it would have imposed the same sentence regardless  only i mean the judge says whether i go this way or i go that way this is where i come out and he says that after a very long period of time addressing what the judge thought was what was most serious about the case  lynch the judge said that after true or not the judge said that at the culmination of sentencing or give you that all said it was but he said that after repeatedly recognizing the anchoring effect of the guidelines and through that yes you actually did one of the rare cases i think where a judge pacifically acknowledges anchoring though that was about the fifty something that he got to one or another calculation yes but the judge blind him to the risks by putting money in his pocket that's what made this a pungent case that is that is certainly correct we certainly don't dispute the proposition that the judge effectively sentenced m factual context is part of relevant conduct you're making i thought the more technical argument that this doesn't factor into the guidelines the way the judge thought it did well we do have our substantive reason all this argument but let's bracket that for the minute judge lynch on the issue of procedural reason reasonableness i think our submission is a modest one it is that when you read judge hellerstein comments in context this is not a case in which it is clear that judge would have imposed the same sentence if the conceded guidelines error is taken away and that is because the judge not only kept coming back to the guidelines as the anchor but also sentenced mr huber felt at the bottom of what he thought was the applicable guidelines range now of course we think that even under the commercial bribery guideline the judge miscalculated the relevant sentence and given the judge's sentencing at the bottom of the guidelines range i think that that has to lead to voc a tour but this court has never i would respectfully submit applied harmless error to an error of this magnitude simply because a judge said that he or she would have imposed the same sentence or he would apply the same sentence because that's what you wanted taken away from him on r well we do have our argument on some sort of reasonableness judgement which is of course the argument that a judge cannot sentence someone for another offense a judge can as a matter of substantive reasonableness take other offense into account but what is clear from this transcript i would respectfully submit is that the judge did more than that he sentenced mr huber of felt for bribery and if you take a look at the state and every sentence which the government has submitted i think that makes it quite clear the judge thought that the applicable guideline was that bribery guideline and was not departing from the applicable guidelines range now on remand for the minute that he was taking into account bribery and it's part of an overall in charge conduct and that's permissible what do we do i remailed leaving aside for the moment the question of reassignment so that judge hellerstein or another judge can determine whether an upward departure form the correct range is warranted and of course this court has made clear that where you have a departure of substantial magnitude a correspondingly more compelling justification is required and there is the procedural but quite important requirement that the judge if i took judge hellerstein at his word that even if i were going t hellerstein would have done in that counterfactual world where he thought the twenty four months was the appropriate guidelines minimum now again the government concedes that six to twelve months is the appropriate range and so we would submit that this court should simply vacate and remain with instructions of course that that is the appropriate range for the judge to determine whether an upward departure of this magnitude and obviously this would be quite significant upward departure is warranted here and i think that this court's cases support the proposition st that a judge can departure if you think it's part of the overall conduct that is corrupting the union process and so on like that is an explanation for a more departure i'm asking given the fact that he's doing a departure why would it make a difference if the guideline he was concluding just as an instructive matter was calculated differently sure i'd like to address and then i do want to spend at least a couple minutes with the court's leave on the issue of restitution which is also obviously quite important here i think that what the judge would have to do under those circumstances is again start with the appropriate range engage in an analysis of the three thousand five hundred and fifty three a factors i think one thing that is disturbing here as we point out in our discussion of substantive reason that the judge really didn't permit mr huber felt to present evidence on the critical issue of foreseeability which was the basis for his determination that a sentence taking into account bribery was warranted evidence yes but here it's not entirely clear frankly what the judge was relying on as the source of the evidence but we're not making the broader argument here that the judge can't take into account other evidence statements in the  aren't like we're making and you're not taking issue with the fact that if a person commits one crime as part of a scheme to commit a bigger crime and only pleads guilty to the smaller crime that if the larger scheme is proven to the satisfaction of the court by a preponderance of the evidence the judge is intitled to take that larger motive for the crime into account leaving aside arguments on restitution judge lester turns a different issue purpose of imposing a jail sentence that is within the maximum sentence for allowable for the crime of conviction the judge is entitle to consider for example if someone is charged with stealing a firearm that there's an ample proof that why he wanted the firearm was to assassinate the president we are not making that argument nor are we making an evidentiary argument here we are simply making on substantive reasonable ss leaving aside the confession of error on procedural reasonableness we are simply making the argument that when a judge can't do is sentence somebody for another offense as opposed to merely taking that offense into account and i would resign but let me take  further issue assuming that the judge ken take the larger scheme into account is it not appropriate for a judge this may not be what the judge did here but would it not be appropriate for a judge to reference another god line as a way of saying a check on his own instincts as it were i think this guy was trying to assassinate the president when he stole this gun what's that worth i think that's like life imprisonment but if it turned out that the guidelines had something lower wouldn't that be something that the judge ought to be looking to which is i want to know what's the recommended punishment for that kind of thing judge lynch looking to it yes but protection might look at that character in a different light are happening character of this defendant involves a prior fraud criminal fraud conviction and several settlements for fraud for conduct with the s e c which doesn't sound like the kind of character of the most noble person i ever had to sentence well but judge hellerstein even recognizes even recognizing that did reach that conclusion of course another judge if the case is reassigned would be free to make a differen determination but i think that in this case when you have that abundant evidence of good character what a judge can't do is again effectively sentence for another offense as a matter of substantive reason finally the question about what we should do and must do and must not do in this case if we conclude that there was indeed a procedural error with respect to the guideline calculation is it your position that we should somehow go on and consider substantive reasonable anyway where should we just send it back to the district court to correct those errors and then maybe we never have to reach that through reasonable means because maybe the sentence that ultimately results is one that you feel and that i think judge lynch this court has recognized that it can reach substantive reasonable notice even after a determination of procedural unreasonableness and i would respectfully submit that given the many irregularities in the sentencing proceeding in this case if this court were not to reassign we would respectfully submit that the issue here ultimately our submission is that the district courts sue a spontaneous decision to award one million dollars in restitution after mr hooper felt had already made a voluntary payment of seven one million dollars was improper and that is for the simple reason that  conviction is the narrower conspiracy to commit wire fraud and not the broader conspiracy to engage in primary and here the government makes no argument that the wire fraud scheme somehow caused the losses by the union and this court in all of the cases on which we were a lie and on which the government has relied has made clear that only losses that are part of the scheme of conviction are available under the m v a and so we would respectfully submit that the district courts so a spotted decision here was erroneous as a matter of law and that the restitution award like the sentence should therefore be vacated although when he calculat restitution he used this four hundred thousand dollars amount which was the alleged fee that would gain through this without any other explanation which i found sort  confounding that was i think one dollar of the irregularities with regard to the substantive sentencing because judge pillar that four hundred thousand dollars figure was what was used to determine the the benefit under the now conce applicable bribery guideline i would respect i submit that it's totally unclear where that figure came from it seems as if the judge was perhaps relying on evidence from the secret trial or his own intuition about how much platinum would have benefited from an investment of that variety but again the judge's application of the commercial bribery guideline here was idiosyncratic to put it mildly and of course everybody irregularity with this case the judge did effectively solicit the voluntary payment in his order posing supplemental questions to the parties and then when mr huber felt made such a voluntary payment to the union and the union withdrew its rest petition requests the judge nevertheless impose the one million dollars restitution a word without taking into account the seven million dollars and further and perhaps the greatest irony said at page one hundred and fifty one dollars of the join appendix it is not appropriate that wealth can buy lenity our submission on the restitution award as a matter of law is simply that the loss here was concededly not part of the scheme of conviction and i think if you take a look at th recent decision in calderon and even the government's supplemental submission in response to calderon the government really doesn't make the argument that the loss was caused by the more narrow scheme of conviction but i do think that as this court is making a determination about whether to reassign realizing that that is something that this court does not do lightly that it can take into account that irregularity and how the restitution award came into being and making the determination about whether reassignment is advisable to good morning and may please the court my name is martin bell i was the lead attorney at the trial that resulted in mr seabrooks conviction and i also represented the government of mr hubert fell sentencing proceedings and of course here on appeal  thank you judge pooler with respect to mr seabrook when mr seabrook went to trial for essentially betraying his union's membership by subjecting their funds to a massive and unpalatable risk so that he could profit personally the fact that the risk turned out to be massive and unpalatable came into evidence that itself was not uncommon or terribly extraordinary indeed in garden variety fraud trials the fact of the loss winds up coming in fairly often the court is not required to essentially freeze the bullet in mid air and in many such trials the loss comes in with out having the specific relevance that it does here two things that the government actually has to prove and two issues on which mr seabrook actually joined issue and both the st and the nd trial that being materiality which we've sort of conflated here with the reasonable forsee ability to sue and with respect to intent  materiality needless to say is an element and in so far as this court's precedent in the actually establishes that you can to some degree demonstrates the objective as your honor pointed out before judgement reasonable foresee ability and thus materiality of the risk and risk is a key notion here your honour's that mr seabrook was subjecting his union to the losses admissible for that reason but that is particularly the case here because at the st trial and again at the nd trial mr c brooks very able trial counsel specifically put at issue not only the question of whether mr seabrook understood this to be a quote unquote good deal or bad deal but in fact whether it was in fact a good deal or a bad deal to the extent that we talk about a four or three analysis or to the extent that we talk about sort of at the opening of things  whether this was relevant or approved of it all it certainly i would bring to it that it is objective lee but it certainly is up against that backdrop of seabirds protestations that it was not that the deal was good and that the risk itself didn't really matter and sue with respect to materiality i would submit that the case law is relatively clear that if only for that reason the quote unquote time work that mr leavitt refers to actually does exist in so far as the results can in fact shed some light on materiality the same i would submit is true with respect to intent we are talking about a scheme based offense here and we cite law that makes it pretty clear that in order to that the loss are the result of the consequences of the dishonesty can shine a light as to the intent and the intention and that be in this he wasn't intending that the investment would be lost if only because of that happened it makes it all the more likely that he's going to be caught and prosecuted and to be clear and to mr leavitt's point to that and i'm not suggesting that it was mr seabrooks hope that the whole thing would tank but we what he did intend to do as part of perpetrating this act is to subject the union to a risk that otherwise would not be palatable to them and the question that we then have to ask ourselves judge i respectfully submit is how do we actually express that risk the way that we ordinarily would expressed just loss just loss the point here is that the laws is representative of the risk that mr seabrook intended to subject his union to in order to personally profit risk is a matter of is is a matter of probability or a matter of chance it's not the easiest thing to express in the way that sheer loss is but a reasonable way to represent that that risk actually was an unpalatable risk is what happened and that's consistent with this court's precedents and so i would respectfully submit that for both of those reasons there was a substantial probative value here both in a vacuum against the context of what it was that seabrooks again very able counsel took great pains to establish in both trials with respect to this not only not being a material termination but the deal objective we being good that was something that we i think had every right to push back against in a reasonable fashion and ultimately did that's the whole reason for seeking to put in the laws and frankly the vigor with which mr seabrooks trial counsel pushed back at those notions and the st in the st trial is part of why we saw fit to attempt to introduce this in the nd trial because issue had in fact been joined mr leavitt speaks think they should look at it is you brought the elephant into the room and in half do you bring the open into the room and you're really saying you know pay no attention this elephant i recognize it's a really big elephant and it's right there in front of you is going to be hard to look past that look around and see anything else in the case because that elephant is well you know it's going to cause the last all these people that don't don't think about that now that you've spelled out what the consequences have been don't think about that that  i would raise two reasons your honor why we didn't play those specific elephant games the st of these reasons is what i followed that statement up with is a very careful notation that seabrooks crime was essentially committed before the last actually took place before the catastrophic events at platinum and that the jury should keep that in mind but i also followed the legitimate argument i guess you  say that mr seabrook did the union by subjecting them to that he did play games with their retirement money and i suppose all that stuff about the people with the dangerous and the important would be relevant even if the one billion  dollars come into and it would be relevant in part because what part of what we have to establish part of what we have to prove and perhaps more importantly part of what the record at that point supported was that there was indeed a fiduciary duty that mr c violated in the absence of that you don't have private service fraud and so i think that referring to that that basis was above board the other thing that i would note is that both in the st trial and in the nd trial counsel also elicited a lot of relevant information to that particular sentence with respect to the fact that these folks had dangerous jobs and the depended on norman seabrook when he spent a substantial amount of cross examination with our st witness the successor to mr seabrook demonstrating that mr seabrook had done a bang up job leaving the union and so for that reason even further those things were above board items to evoke as part of that closing and in fact i mean i i think whether the claim that mr huber fell is counseled makes is true that we are solely using mr solely using judge hellerstein declaration at the end of the sentencing proceeding that he would have come out of the same result in a pure three thousand five hundred and fifty three dollars world and i would i would respectfully submit and this would continue want to point that judge lynch raised earlier is that there are other data points that we have in the constellation of potential data which is the lengthy colloquy this was a forty four hour sentencing but it was at least a couple of hours where judge hellerstein expressed substantial concern about the source of the pungency as you noted earlier the fact that this was a that were the basis upon which you had actually sentenced him of course he did not but i also don't think that that's a controlling consideration in light of the other considerations that were utilized here and i want to point to just two  full context i think the answer is actually yes one because the material difference between what the guideline that judge hellerstein did not use would have been significant but not necessarily mean he would have been something but not necessarily significant in light of the full array of other factors here let me get to those other factors if i may just been asking that may help philip philip appoint a couple of days before this sentence judge hellerstein had sentenced mr seabrook to fifty eight months incarceration for his role in the fraud fifty eight months gets you about roughly twice what it was that mr huber feld wound up getting for his involvement in as convicted the crime that enabled the crime there was also a twenty four month recommendation from probation that was part of the p s r but i think it's gone forgotten here all of these are data points that i think could help further triangulate the fact that something within the range of thirty months was reasonable and had an anchorage in the total mix of factors that courts can and do consider for who is going to go to the lowest number in the range sentence based on the lower amount six times i am without counsel explained any kind of an explanation i do think judge that it may not surprise you to learn that i like to think of it a bit more as two years higher rather than five times higher but in any event i think that but i do think and i suppose this moves us into substantive land here part rain and what i'm what i'm suggesting there is that there is a meaningful distinction that could easily account for two years time between a sixty thousand dollars fraud a hedge fund in a vacuum and sixty thousand fraud that serves as a contingent component in one of the more infamous and reasoned bribery schemes in the modern history of the southern district in one that ultimately led set into motion a chain of events a tragic event for countless and so we might not just agree with you but we're light sentences where every step is fully explained and you cannot tell us that this sentence has those explanation i think that your honor the very best that i can do is note as judge lynch did earlier the full record of concern articulate which articulate it's not in the most succinct sort of way in a in a sort of according to hoyle statement of reason sort of way why this particular twist on a sixty thousand dollars fraud was so troubling and i can understand i candidly your honor i think that this is the strongest point of mr huber felt to me ever it's inherently troubling when you start out sort of off the guidelines to begin with but i do believe that the sum total of what mr of what here but it's seems to me you've got a hard row to hoe to say we we have to think that this is exactly the sentence that the judge will come out with even if for example he realized that the bottom of the commercial bribery guideline that he paid a lot of attention to was actually twenty four months which just happened to be exactly the sentence that the probation department recommended in this in this situation it seems to me it's a pretty reasonable possibility that if this went back and there was a recalculation even that factor alone could make a difference i'm not sure that you know where a judge is clearly saying i put a lot of weight on this commercial bribery and i thought well that's a reasonable thing for him to do as a cross check on what's reasonable in this circumstance he got that wrong and i did get it wrong he got it wrong even getting it right this soon is that this four hundred thousand dollars number comes out of somewhere other than the judge's own personal recollection of typically charge it's  very hard for me to see that there's not a problem the one arrow remaining in my quiver judge that i would add to the sum total of what can be summoned for suggesting that what happened here was not the naked application of and i would have done that anyway let's go home type statement is the following through out the transcript of mr huber fell sentencing proceeding judge hellerstein makes reference to possible guidelines  in a vacuum that might be what is somewhat troubling judge lynch because the guidelines aren't supposed to be an exercise that works that way but one can reasonably interpret judge hellerstein remarks along those lines as having a set place in mind for what the severity and seriousness of this crime actually warranted and i think that to the extent that this court assesses the total mix of information in determining whether hellerstein you're talking about there being a lot of data points which there are which there are i don't think a reasonable person looking at this record will respect your adversaries would think that there is any chance that this judge would have given a six to twelve months sentence if there weren't of commercial bribery guideline in the book he understood that this was a more serious crime he took that into account no question about that but picking a number is always a somewhat mysterious exercise in sentencing it's one thing to say this is way worse than as you put it a sixty thousand dollars invoice fraud against a multi million dollar hedge fund this is a different thing than that that's easy to look at to assess to think is reasonable but does that mean it's twenty four months does that mean it's thirty months does that means thirty six months of difference between those in the grand scheme of things makes a big difference to the defendant and it's hard to say we know even the judge hellerstein knows what he would have done under a hypothetical different set of circumstances where a guideline that he paid a lot of attention to comes out a little differently where he is and also thinking that actually under the guidelines the twenty four dollars to thirty dollars or thirty dollars to thirty seven dollars is the right guideline rather than the wrong guideline when you take all those factors into account where do you where do you come with the judgment that mr you befehl deserves more than the six to twelve months of the guidelines  and thirty change the mix of factors it may change how it comes out it may be judge and obviously at bottom sentencing is are finally mysterious in a commentary of somebody who did make that calculation and judge in judge hellerstein who said i would have reached the same conclusion had this entirely been within the realm of the three thousand five hundred and fifty three factor consideration in a vacuum reasons but nevertheless being able to curb that impulse of points and say well that guideline would be too high well that guideline strikes me as being a bit too much oh it was done cul de luxe this is just right i and  with regard to the last evidence of course is that for three analysis the district court's decision is entitled to due deference only if the court undertook a conscientious assessment of whether unfair prejudice substantially outweighs probity value the supreme court in all chief explain that what counts as the four o three probative value of an item of evidence as distinct from its rule for a one relevance may be calculated by comparing evidentiary alternatives comparing evidentiary alternatives here the district court did not at all discuss the evidentiary alternatives to admitting the loss evidence and yet those alternatives were obvious and they were powerful for the government as well and included platinums offering plan which laid out the risk very clearly and which also include attorneys tourney actually whether it was a good deal for the well it was it was it was certainly argued to the jury that there were pluses and that there were pluses and minuses to the investment it was never argued it was never argued that loss was not reasonably forseeable because anybody i think you could probably anybody in this courtroom whether or not they understand that a hedge fund could lose money every hand with a lot and you could certainly if the public does not believe that that's a sure bet nobody believes that loss is not reasonably forseeable and eleven last point here if i can make it please with with regard to to the arguments the government made to the jury the very arguments that the government agreed not to make to the jury i just want to note that judge pooler you have previously said that one of the ways we can assess prejudice is to see how the prosecutor utilize the evidence in question because the prosecutor knows his case the best and in this case the government used that evidence in precisely the way it acknowledged was improper and he said it would not utilize and it did conceding not just that the commercial bribery guideline was miscalculated but it is also conceding that that was an applicable guideline and that the use of the cross reference in to be one dollar c three was legally improper or so on the issue of procedural reasonableness i think the sole question for this court is whether it is clear in the words of molino martinez that the judge would have imposed the same sentence and we would respectfully submit that it is not both because the judge sentence aware before him for the other guy he did that because he thought that they were wrong and that he thought that the commercial bribery guideline was the applicable guideline and part of the reason why i think this is difficult to untangle is precisely because of that it was only at the end  and fifty one dollars that he swerved and he said even if the other guideline applies i would still impose the same sentence and i think mr bell in an effort to defend this focuses on the disparity in sentencing between mr seabrook felt but i would submit that that's a bit rich because of all people it was mr bell who before the district court very eloquently explain why such a disparity was warranted starting at page one hundred and thirty six of the joint append and i think th thing one last thing on substance of reasonableness and that is that i think that one of the most troubling things about what judge hellerstein did is that he refused to conduct a hearing on the foreseeability of the loss in the face of an rebutted expert reports that  issuing twenty five million dollars a month in returns well only a five million dollars in this was not just rhetoric this was really serious at this moment and they needed to get new investors and that does not acquitted and so again i would submit that get acquitted they can all get acquitted that's fine that's a jury the judge gets to decide by a preponderance of the evidence what the facts are and that's a pretty potent fact to me it's very hard for me to say that it is unreasonable for a judge to make a fact finding by a preponderance of the evidence on the face of that record that it was foreseeable risk of this fund was going to go under well again judge lynch we are operating in a somewhat contra factual world because what we don't know is whether a judge how or seen would have made that same determination if you thought that the applicable god winds rain six to twelve months and that brings me to the issue of reassign and i just want to say one quick thing on the issue of reassignment again i realize that that is something that this court does not do lightly but here i would submit that all three of the reassignment factors point in favor of reassignment unwavering focus on the bribery offense does suggest that he would be unlikely to act differently be relatively modest and it would not be a great burden on another judge if this case were reassigned indeed judge carter who heard this case the st time around would be in a similar position and any other judge i would submit could conduct the reassignment quite