mainly on the sufficiency of the evidence argument today but i will start by addressing the court's memo regarding jurisdiction to hear that first issue regarding the double double recovery by the government  we agree that the case cited implied he did he did hold that the issue not brought before the district would not be able to be brought in front of the circuit court but as mentioned in our twent polani hasn't been cited in this court or in fact in any other court in any published opinion but that being said this court has heard issues just like this before they have heard issues for the first time on the second appeal that weren't brought up at the district level and for that reason we would just ask a plain air standard be applied to that first issue moving to the bigger issue the sufficiency of the argument sufficiency of the evidence argument for a second issue involving the exhibit a and the restitution order itself i think it really does come down to just looking at the evidence that was provided at the restitution hearing the government presented two pieces of evidence they presented exhibit a which is the excel spreadsheet and then they presented the testimony from agent de maria who was the agent who created the excel spreadsheet to try to lay foundation for what the spreadsheet was  the agent started off by saying that this spreadsheet was all the fraudulent charges brought against mr daniel hankins but as her testimony went on and it became clear that it wasn't actually that the government had hurdles they had to get over here they had to meet a preponderance of the evidence standard for both proving that these charges on this exhibit were fraudulent and then they had to prove that these fraudulent charges were connected by some proximate cause daniel hankins our argument is they didn't even meet the first hurdle to prove that they were fraudulent it missed the maria as in her testimony explained that the transactions  what were considered flagged upon both direct and cross the issue of what a flag charge was was brought out she said it was any suspicious looking charge on one of the credit cards used in the in this year depots database of credit cards that they had for their vehicles she explained a suspicion meant it was used in some way that wasn't normal just odd is the way she wrote she said it could be any with thing from arm cards or charges charges so charges end up being over three hundred different charges so how much of how many different cards i believe it was about thirty one i least twenty five i remember them talking about twenty five well twenty of the cards were used at the mark right outside the base isn't that right correct your honor and those were and some he pled guilty to and some he didn't plead guilty he pled guilty to the forty nine charges which were actual detailed in the excel spreadsheet those forty nine are in the spreadsheet but then there's additional two hundred seventy five to two hundred eighty charges that he did not plea to and those are the ones that we have issue with but some of those  that he you object to were at the same location correct using the same card they were i mean they were different cards and in fact there were nine cards not in those and it just all forty nine counts that are being alleged in these additional two hundred seventy five so it's a mix of all of them but our argument is that the government had a preponderance of the evidence standard to me and like i said they first had to show that these charges were fraudulent during her cross agen maria said many of these locations in the charges she never investigated simply because it was too far away or she just didn't have the time to do it or most of those the weren't there other charges on the same card that there was evidence connecting your client to so many of the charges include exhibit a she said were she only included them because they were had been used previously so it was a strictly propensity kind of situation where she said they've been used once so therefore every other time this had been used it must have been him that was really evident was there any evidence though that anyone else was using these cards improperly there wasn't but these cards it should be clear what the cards are used for the cards belong to separate vehicles within this year army  depot looking out with the army depot is they have hundreds of vehicles on this depot and they're maintaining and moving them around so a flag to charge can appear any time that credit card was used outside of normal business hours if this vehicle was being used to be transported somewhere in somewhere to someone were to use it outside business hours or to different gas station for any reason it became flagged flagged itself didn't mean fraudulent though and that is the hurdle that the government had to prove is these flagged issues were actually fraudulent and that's where the evidence issue becomes because the agent did not provide she claimed she had evidence but you know provide any at the restitution hearing and even for some of them she claims she had zero evidence to prove that they were actually fraudulent just that they had been used in the past fraudulent leap but these actual charges were not fraudulent well they didn't did it there was no proof that they were not fraudulent right you're just saying there wasn't sufficient proof that there that they were fraudulent correct that were saying there was insufficient evidence to meet the preponderance standard the courts have held that you still have never libel sufficient evidence to meet the preponderance standard it isn't on the defense to then negate that the government has to get to the preponderance level before and that's just to prove that they are fraudulent and then there's the whole the hurdle of getting to where they connected to mr daniel pink and some self but i think the first hurdle is the one that hasn't even been met here this court has held that just finding of a lack of evidence in the record for the judge's finding can make clear if there was no evidence at all to meet that burden but there was evidence for many many of the charges so i mean do we strike down the whole thing because maybe one one percent of it could be wrong there was at least during the cross examination miss linda allison brought out seven different charges and then there were additional ones so what percentage do those seven charges represent of the overall of the seven are not all your honor there was one instance where in it was the rockridge i so that was the only evidence in that and that i would find out right now that transaction appears multiple times in the spreadsheet but i'm in mountain charges appears multiple times in here  eighteen different cards of the twenty pled to eighteen different cards he used them at these similar locations is not circumstantial evidence he pled to using them in those forty nine times and he  had he confessed to those forty nine times these additional ones though as it can be circumstantial still won't meet the burden of proof i mean by parameters of the evidence there still has to be sufficient reliable evidence to meet that standard just good morning your honor justin leave the united states may please the court there was no clear error in this case where the court relied on the defendant's admission to law enforcement that his fraud involved between fifteen thousand and eighteen thousand dollars and lost and there was evidence presented to the court that corroborated that the court considered exhibit a which was a spread sheet prepared by the united states as well as holding an evidentiary hearing the sworn testimony the court ordered it considered supplemental briefing and twice gave the parties an opportunity to argue before the court regarding restitution this was not clear air with respect to hankins argument about the apportionment of restitution this court should decline to consider that because it was not raised at the district court it was raised for the first time of the ninth circuit that's consistent with the eleventh circuit holding in plotty and also consistent with how this circuit handles issues that are not raised in an opening brief before the court has some difficulty in which the case front of the appellate court so i have some difficulty applying the law of the case doctrine in this context that's correct term of the law the case is generally the same consideration at the same level however the law of the case would allow for consideration the argument on a discretionary basement under the under the waiver doctrine and that would be consistent with how this court handles law of the case and also how this court considers an argument that waved in an opening breaching you think of another king and another instance on our circuit where we've applied a lot of the case from the district court to the appellate court no your honor i was not able to find that i looked at bankruptcy court where that might apply i don't think it exists that's the issue at all your honor my reading of bloddy did not suggest that it was jurisdictional and prohibited the court from reviewing the court implied he specifically cited to a law in the waiver standard suggesting that in the appropriate case manifest injustice or some other appropriate circumstance where we ever are going through it would be appropriate the court would consider despite the law case doctrine you would agree i assume that if we got to the merits of the case that joint several liability applied to this case would mean that you were limited to the total amount of restitution you could not exceed the amount of restitution ordered by the court yes your honor that's regardless of whether or not it was ordered joined several or each defendant was argued and held accountable for the full amount of the loss what's so odd about this issue as it seems like both sides agree on that so there's this whole discussion about whether there's another plane or and then a whole discussion about about how it was a portion but ultimately it seems like both sides agree that their client cannot be responsible for money that the son paid is that right that's correct the court held in stanley that there cannot be double recovery by a victim or a windfall for the victim so it seems that you wouldn't object would you have any reason to object to a disposition from us that clarifies that there can't be more recovery than the total amount that was lost there be no objection your honor but there's no basis for that because there's no error by the by the magistrate judge in the first instance so there's no reason for this court to correct that so is there any problem with us saying there's no error because the background law is that you can never have more recovery that would that would be fine your honor and that's consistent with what the seventh circuit did intrigue on plane air analysis they held that there was no plane air notwithstanding that fact they still modified the order to explicitly state that there could be no double recovery but i gather the government's position is as a matter of law there is no double recovery in there for us on necessary is that your that's correct your honor and there's no error here so there's no reason to disturb that underlying restitution order julie you asked how many question how many cards were used in total there were a total of twenty four cards in exhibit a so there's three hundred twenty three transactions twenty four cards of that total seventeen of those cards were in counts one through forty nine those are the subset of counts that the defendant pleaded guilty to so there were seven cards that were not involved in the subset of counts that were included in exhibit a now is it not true that for some of the locations outside o her long that the the mario said that she didn't have any evidence linking the defendant or members of his family to those transactions what do we do with those transactions you are it's correct that the special agent testify that she had not then do every single gas station and did not have direct evidence for each and every one of them however as the court noted there circumstantial evidence to support that the defendant was responsible for each and every one of those transactions he specifically told investigators that he grabbed the same cards over and over again and he told investigators that the amount of loss was somewhere between fifteen thousand and eighteen thousand and special agent di maria testified  card included in exhibit a there was at least one instance where through a concurrent personal credit card transaction or video recording evidence could link mr hankins or a family member to that card so each one of those cards had previously been used or used at one time by mr hankins or his family inconsistent with their official use if there are no further questions i think we have your argument and thank you would you put the two minutes on you will give you two minutes thank you owners just briefly i'd like to address the first issue of the joints of reliability we're only asking that the the court amend the order just so that mr hankins if the time were to come where both parties have paid what they were ordered to pay which they were both ordered to hunt to pay  percent of the restitution orders don't run into some conflict and then have to go and find some kind of remedy to the issue of who gets reimbursed and what happens at that point i would ask for the orders why is this issue right i mean it seems that the son has not paid so there's not really a problem yet is there there is not yet your honor but looking at the son's restitution order he is asked to pay one hundred percent of that in fact the judge laid out a monthly payment plan for him to be paying so you can see from his order that the judge expected him to be to be paying this amount well maybe the judge just expected that one or the other wouldn't actually and so there wouldn't be double recovery and i do you deny that it's proper to allow joint and several liability as long as there's no debt double recovery yes or no or that we are asking for it to be just amended to be joint and several as i said why should we rated as not already like that well there is the box on the rest to start or that hasn't been charged and as i said the judge on jeremy hankins restitution order has ordered one hundred percent with those monthly payments but one hundred percent doesn't show that it's not joined in several several right like if the box had been checked i hear you that the box wasn't checked but if the box were checked everything else would look the same wouldn't it correct and we only ask for them and just to make things clearer when the time comes that the remedy doesn't become messy i'm moving to the second issue quickly the government and the court have addressed the circumstantial evidence issue with sufficiency of the evidence while it may be there has not been provided in from the court the agent at the restitution hearing said she had it but she did not produce any she just claimed she had this i see my