calendar we have an emotional argument today so before i call the calendar well here on the most the most in the united states versus daniel carpenter thank you court my name is michael levy i represent daniel carpenter daniel carpenter is sixty five years old suffers from significant physical and mental health issues including a bipolar disorder that was so severe that the district court on its own initiative broke off sentencing on the first day and ordered a full psychiatric evaluation at yale university the results of which were confirming of the court suspicions and led in the court's opinion to a very significant downward variance from from an exceptionally high guidelines range of two hundred ninety two months to a sentence of thirty well continue in the course of that for which has been found guilty both in massachusetts and before the district court judge after a bench trial where the judge got to serve mr and so the judge just didn't think that you could make a affirmative statement based on clear and convincing evidence that he would repeat this course of conduct while he was on so  agree with your honor and the standard at that point turn to exactly what it is today mr carpenter's obligation to show by clear and convincing evidence that he's not an economic danger leaving aside the fact that it's not actually clear that economic danger is covered by the by the bill reform act but from that period of time on the verdict as your honor noted mr carpenter was was well known his position on his being innocent was abundantly clear and yet for two years he was allowed out on bail with no objection from the government no suggestion by the court that he should be put in and it's the exact same standard that we have here today the likelihood of success on the merits of your claim  certainly your honor i think the principle one is the issue that dealt with sentencing guidelines last the sentencing guidelines here were about the underlying crime of which he was convicted the underlying crime of which he is convicted we are going to address in a couple of ways in a bill motion will constrained on setting them all out we are going to be challenging based on grimm the idea that many of the wirings that were the basis of the individual counts were not in furtherance of the fraud they were after the policies had been procured and were just ordinary regular innocent payments of the premiums to the to the insurance companies and can't support wire fraud on the money laundering and this ties a little bit into our sentencing argument on the money laundering our position is that the death benefits from that specific policy that was paid off are not proceeds of this fraud this was fraud about obtaining death benefits and stoli fraud doesn't do anything to shift the risk of death benefits being paid that's a risk with the insurance companies as as the correspondent base mark that's a risk the insurance companies take on knowingly every day they don't see that as a loss on the sentencing issue which i think is your main issue yes for the district court did say in the end that that was going to ignore the sentencing i want to start off by saying it's the framewor was going to ignore the guidelines but it did say they have an anchor in fact and they clearly wants to start there any you're obliged to start there and if we're correct that there was no loss in the guidelines range was twenty seven to thirty three months this is a different case there is no way to say that that's harmless and that and that the fact that the guidelines were saying thirty years basically i'm going to ignore it and this is what i think is an appropriate sentence and i think even so and i would point out in the next page of the transcript he says even putting aside the guidelines i think the things that inform the guidelines range in this case justify the sentence including actual loss so he's relying on the concept of actual loss one way or commission why isn't there actual loss in the worst argument is the insurance companies never would have issued these policies because they did issue the policies they did suffer some losses that is what they paid  paid there were fees and less what they received in premiums what why isn't that logical so it is perfectly logical that there could be actual loss and that's why we say we're not the case the defendants there said this can't be calculate there's just no way to figure out actual loss and as a result this court said ok if that's your position then we find that what the court did is not clearly erroneous we agree there's a way to calculate actual loss and we put forth a model below it measures the difference between stoli and non stoli that has nothing to do with the death benefits it has to do with how the policies are funded stoli policies they expect a little bit less  premium payments every month and it affects the lapse rates stoli policies you're expecting never to lapse where as the insurance companies accept some number of non school the policies they accept ignores the argument that they went to shoot  policies and and that the supreme court in this court have been very clear that but for causation that the idea that just because a transaction occurred everything that follows from it is a harm that results from that is not the standard for criminal law it is the standard frankly in that very narrow category of one fraud cases that the government relies on that trio of cases in line from everywhere else  criminal law and sentencing the idea is that you separate out the harm from the fraud and harms that just happened as a result of the overall transaction death benefits or just the harm that it's not a harm or just a fact of life for insurance companies and nobody misled the insurance companies in this case about the health of about that risk that they were taking on and that's what the circuit recognizing days more is if but for the stoli part of this being hidden the insurance companies got exactly what they thought they were getting in terms of the risk of a death benefit and that's why the death benefits can't be included and yet they were overwhelmingly the basis of the actual loss i mean it was essentially all death panel here from the government may please the court my name is david novick and i represent the government this matter your honour's the defendant cannot meet his burden for release pending appeal here for two key reasons first as to his argument on loss the method approved by the district court here was virtually identical to the one used in bin day and this court rejected the same challenge that mr carpenter makes today to that last model second as to his evidentiary arguments he fails principally because he does not challenge all of the counts of conviction and therefore which is a requirement under this court's law that has to lead to a reversal and b even if the challenge counts were excised from the case the guidelines would end up exactly the same the address briefly the calculation of loss first the calculation of loss that was used here was a virtually identical as i said to the one used  bin day and it's a straightforward analysis the evidence in this case was that absent the defendant's misrepresentations absent a frog these policies would never have been written and all of the loss in this case would be the loss the profit loss on each policy as a result of the defendant's lies this is consistent with how this court is assessed lost in fraud cases including in bin day on which this indictment was modeled on the alternative that the defend proposes here is the same one that was proposed by mr bin day in that case and that is to somehow link the economic rationale of the insurance company  loss in this court rejected it not only did it reject that argument it said that there was no alternative readily apparent notwithstanding the fact that alternative had been referenced in the defendant's brief in that case  this for good reason because the alternatives that were proposed the issue that this court identified and been day had nothing to do with linking the economic decision making issues to loss it had to do with whether you could assess losses at the time of the sentencing when not all the policies had been had been concluded had been terminated even putting aside this court's rejection of that argument there are still several fatal flaws of the defendant's argument and assumes that even if a defense excuse me the insurance companies knew about the loss that they could actually accurately price is still the policy the testimony from the insurance companies here wasn't that they would have been able to alter a lapse rates alter funding patterns thing come up with an accurate gauge of what the pricing would have been the testimony was we price based on thirty years of experience or more of experience and in this case we simply don't know how still the policies perform over time here's a couple reasons why we think that it would vary but we don't know the answer and so we're going to reject outright we don't want to take these risks that was a testimon insurance companies in this case it also conflates guilt the guilt phase of the case with sentencing the guilt phase of the case the issue is why the insurance companies would have rejected the policies we did reject these policies at the sentencing phase your honour's the issue is much more what was the last they made the decision not to accept the policies and what was the loss as a result and finally as your honour's mentioned the judge here specifically said he was ignoring the guidelines  that he as your honour's mentioned he sat through a six week bench trial with this defendant he ordered a psychiatric evaluation of the defendant and still came up and came up with a sentence based on his experience with this defendant in this case much more than any guideline second reason why the defendant cannot meet his burden your honor if he doesn't challenge first of all all the counts in other words a even a successful appeal here would not result in reversal it leaves in place a conspiracy and the counts involving the wires and mailings involving applications and not only that there's no chance of those being reversed correct your honor not based on the challenges the defendant has vance today that's right respectfully i don't believe it would because the guidelines would come out the c at the same on the wire mail fraud it's the same scheme so even if there are there's a quarrel over whether the guidelines correctly calculated so i mean it could possibly have an impact if there are fewer counts of conviction i'm just isolating out here your honor this sole issue as to because even if the you know the only thing challenge here is whether wires and due at the end of next month your honor so they could indeed by that time seek to overturn every one of the counts of conviction that they could your honor they have in advance the rationale for