in our brief and we argue that the court the sentence imposed by the just record should be reversed for two reasons i will devote the bulk of my comments this morning to the first of those two returns which is that the method chosen by the di that the court should impose the higher of actual or intended lots and the argument was that the actual last established by the government's expert of a little over three hundred thousand dollars worth of the on authorised transactions for curtains for there were different starting gates for each of the nine accounts and then she took it or assessed the value of the various portfolio or securities on each of those unique style engaged and valued at the end period it was determined that mr o'neill neither relinquished or with grip of his control over the account what's wrong with that  any consideration of any other factors such as the defendant's expert john mark he articulated for the sentencing court factors such as market any kind of up a long winded fashion mr o'neil with gets to a consent agreement with the state of montana auditors office of the entity that controls dark brokerages within my channel and that consent to agreement provided certain fissioned for which for a period of time that mr legal would be subject to one of those had to do with supervision by the branch manager for a period of time over the transactions that mr o'neil was conducting for his clients so the clients testified that actually the transactions were in fact on authorized but not to put too fine a point through the government's expert had a different take on this and i think it's to give rise to some confusion she looked at the transactions in common stocks and whether they were authorized to run authorized she excluded from her consideration of transactions which damages were calculated well that was the government's approach that they were all unauthorized but whether they were whether all of the transactions were authorized to run authorized was the point in government makes an argument that wholly apart from that if you are over two hundred thousand dollars in commissions that clearly were losses and once the two hundred thousand dollar level is mad the offense level would have been the same anyway and other words they're saying even if even if you're clearly right and here total loss calculation it's harmless because clearly the commission's justice if the transactions were unauthorized and the commissions total over two hundred thousand that is correct you're under the government's theory if you if one is to get away from the actual lo defendant's expert gave a different methodology offered a different calculation for determining loss and he came up with an actual last or in intended to last far less than are distinguished from the case that we have inside of us with with a fraud on the market case and investor purchase start later misrepresentation is corrected publicly and the value of the stock drop e evidence of what the nice safe mutual funds and fixed securities might have done fixed income for curators might have done in the period ending in march of two thousand  certain that they would have dropped in value over the entire time period we're talking about time periods in some cases from the beginning of nine hundred ninety seven through march of two thousand and one but it would you're right you honor it would depend if it is relevant to look at what the court what would have happened if they were stayed in their investments however the difficulty of computing at both was was very difficult and looking at the knesset versus mcneil case and the unsuitability of these trades are the experts calculate is the last part based on what actually happened in the market again these victims were subjected to market risk that they didn't bargain for even may argue that he wasn't all in one stock he was investing his people back and forth in various stocks primarily technology stocks and so maybe he thought he was going to recover those commissions and fee however if you take a look at michael have thousands account that client paid about fifty six thousand dollars in commissions and fees ten thousand dollars in margin interest and he watched his account drop from a balance of forty thousand to a total of eight hundred fifty eight dollars basically he paid out one and a half times to piper jaffrey what he invested in the account and he ended up with nothing component there were some different calculations on market loss but not on steve's interest and commissions the spin it also argues as a matter of fact that similarly to the senate are used as a matter of fact that he did not make an authorized trades during the time period of special supervision by his employer again taking a look at the evidence summarized and pages five and six of the government's the analogy for lost purposes but it's the actual statutory definition of the offense that's relevant under trask's for abuse of trust purposes for last purposes we've already discussed the defendant's conduct is similar to the churning  requests by customers thus unauthorized trades in such a circumstance would not constitute abuse of trust and therefore the statutory definition of securities fraud thrown out right straight is charged here does not require the government to aided in from part by the united states supreme court's recent articulation of the proper causation theories in the dura pharmaceuticals case so we are not arguing that this case factually is a fraud on the market  certainly damages but this was a situation in which market volatility played a critical role and the government's methodology that which was adopted by the court failed to appropriately take into account the other factors and for that reason