convicted of a number of wire fraud cases false statements of tax evasion and cetera and one of the issues involves  whether there was obstruction of justice by mr bosch corrino when he falsely declared to in as he see investigator that he did not have a prior felony conviction that statement came in a deposition some fifteen months before statements were material to the investigation of mr bhaskar you know we contend that because it was fifteen months before hand in the investigation the british government didn't know that somebody in front of them had been convicted of fraud the case law requires that material that is significantly impede the investigation and that wasn't shown at all by the prosecution in this case when we raised that objection the government relied on a number of other things including that he referring to some other faults was that he made during the time that he was being investigated in a deposition the fact that there was some documents that were destroyed and the that the district court must make findings with regard to each element of in that case perjury essentially and our contention is that if the government is going to rely on lighning during a deposition or destruction of documents it also has to meet those statutory elements and the court has to make specific findings are expressed by news about them because all of those things constitute or could constitute a struction of justice it's not enough to simply say well the defendant lied during the time of the investigation whether or not that constitutes obstruction of justice has to be found specifically has to be proved by the prosecution and has to be found specifically by the court the same thing with the destruction of documents the government claims that there were some documents that were destroyed and that was a basis for obstruction of justice the supreme court has held it's not just the destruction of documents in fact if the destruction of documents is pursuant to a file retention system or some other reason not related to corruptly trying to obstruct that the investigation then it can't be obstruction of justice and it shouldn't be found to be so in this instance we don't have any findings to that effect and so we contend that the courts will rely on what is your understanding that district judge relied not only on the false statement to the s e c investigator but also relied on the intimidating a witness she says so during the hearing she said ok and that was that improper i don't think that it's improper but i don't think it's supported by the facts to simply say well there's other things that the defendant in fact i think with the with the judge says i'm relying also on the allegations made in the pleadings by the government in support of that finding that there was obstruction of justice our contention however is that if those are production of justice if that's going to be a basis for obstruction of justice there's got to be specific findings by the court with regard to the act and the intent of the defendant with regard to those acts in order to constitute obstruction of justice well he did say it was material and it was willful he made finding he said that it was material and willful when he falsely stated that he did not have a prior conviction our contention is that the judge's finding materiality is not supported because of the fact that that statement was made fifteen months before the indictment in this case and there was no showing by the government that it significantly impeded the investigation in any way the judge refer to cumulative conduct and she said perhaps standing alone it wasn't enough but when you put it with the other things there's a cumulative conduct well and the problem with that is this that custer points which we rely on heavily it says that there's got to be some explicit findings by the court it's not simply saying there's humility of conduct and therefore you can find more to the court have to find and she addressed the elements she addressed she addressed what she was finding she said it was cumulative conduct she referred to all of the all of the various facts she didn't discuss it in detail but again this didn't just in follow a trial was following nobody but it results in a two level enhancement for my client and to simply say i mean that was the problem with with cust that the defendant lined in there your client like that but you don't dispute that no i'm not disputing that but there's got to be explicit find these that make it actually obstruction of justice and we've cited in our briefs the reason why certain types of offenses certain types of line are destruction of documents or interviewing witnesses i know it's like so again we're going to go back to where you started i thought that the two elements of obstruction of justice is that has to be a false statement and it has to be material  and that's why i say that it wasn't material and it's not apparent that it's material because it did there was no showing by the government that is significantly impeded the investigation as they say it happened a long time before the indictment actually occurr instance i mean the just a court obviously thought that it did and she had some familiarity with with the facts in the end and that's what we're asking this court to find otherwise because your time is going quickly so i just want to i just want to keep you on keeping on track there's other things that you want to talk talk to us about her couple of other things i have asked the court i had it get asked of court at the district court level for findings with regard to the number of victims what happened was in this case that before the light on the on the guidelines in effect at the time of the sentencing four months later approximately there were substantial changes to the sentencing guidelines with regard to the number of victims and what is necessary to prove as to those we asked the court through various because we understood that we couldn't ask for a departure on that basis but the court said i'm not going to apply the guidelines as they're going to be in a few months i'm going to apply them as the exist right now and under that circumstance the fact that there's over two hundred fifty victims in this case is adequate to find six little increase in the guideline calculation there's a number of in she also find this she say that even if i were to apply the new guidelines i still got twenty five at least twenty five people who have suffered significant financial hardship she did say that and then you know you're covered under both under both iterations of the of the guideline i mean that's that's that's that's like this is like there was like the judge was was very conscientious in trying to give you the benefit of your argument even if she disagreed as to what applied and said in the alternative i think there's good evidence here of twenty five plus no i agree she she considered what i'm saying is that she didn't consider it correctly because what happened was that they brought an f b i agent in who said that she had reviewed some statements made by alleged by some of the victims and she concluded on that basis that even under the proposed guidelines that there was substantial financial proposed guidelines have a listing of the things that should be a considered or should be inquired into by the court in order to determine whether there is substantial financial hardship and that wasn't done and the agent admitted that she didn't use any type of criteria she just looked at the stations concluded this shows substantial financial hardship in the courts that that's fine with me what we're saying is that that is not sufficient evidence is not it doesn't allow this court and review whether or not the ok that means that standard let's suppose that you're right on that i would get us back to the to the first the first problem is is that she applied the guidelines in in effect at the time that she sentenced yes so what's wrong with that well there's one of the issues that i've raised is that  she should have applied to the mass marketing guideline because there's there's a little bit of tension here between one of the guidelines that says if there are ten victims or more and it involves mass marketing that i want to i want to keep you want to keep you focused on the question  what's wrong with applying the guidelines in effect at the time that she sentences your client even if we all know that there might be some changes coming i don't think there's anything wrong with applying the guidelines but i think the court in adequate weight to the fact that the guidelines by the sentencing commission indicates the direction that the sentencing commission believes that the guidelines ought to be interpreted we sippin that it's a clarification so we should be applied retroactively the class that the clarification is this the guidelines that says commission is that there's too much focus on the number of witnesses there are should also be some consideration to the extent of substantial financial hardship suffered by victims and then you consider the number of people that might have been affected by two to the degree that there was substantial financial hardship the court didn't seem to do that the court looked at it she said i'm ok i'm thinking about all of that but what i'm going to do is apply the two hundred fifty victim guideline bump it up to six levels and you know you can make what you want to of the record i think with regard to substantial financial hardship and what we're saying is that the court should have given more weight to the fact that the sentencing commission indicated that just the number of victims alone is not an appropriate or it shouldn't be the only consideration there there's got to be consideration of other of other factors that counsel your over your time but i do want to hear if there's anything else  certainly before luis versus the united states there was a wholesale seizure of assets mr abbas had available to him and part of the reason for the that whites the seizure of assets was that the case law at that time allowed the government to seize all ss even assets that were untainted now i can see that there's not a very much of the factual basis or record on this ma this is not what habeas is for yes but i think the record clearly he would have to bring an i c claim would mean we have to bring a claim of ineffective assistance of counsel for faith because this is all this is all on even before us is now in plainer review right this was never really raised before the district court he might have to do that i haven't fully explored but that's that's often times that's often times where mistakes at this place at this point in the in the in the trial are our remedy it is even a further in the reason i bring it up here is because the indictment the forfeiture allegation includes not just the tainted assets it includes even substitute asset and we can tell that from the record i think you can from the wording of the  indictment it includes not just the material in fact there's that was there specific property that's named but then it also alleges other proper how because how can we tell that this is untainted well that's that's the issue i suppose and that's why good morning honor may it please the court i'm chris cavaney is from the district of arizona we'd respectfully ask this court to affirm the sentence and just addressing the issues as the defendant raise them first as this court noted there are multiple grounds upon which the district court found that the obstruction of justice and han was warranted it was the threatening of witnesses the destruction of the evidence at the defendant's direction to mr diaz who destroyed a bunch of joint venture agreements there is also a paragraph i wanted to mention when it comes to joint venture agreements at and that diaz point which i had intended to put in the brief there but it's an s u r one twenty nine you're going to see a paragraph describing that as well so i wanted to mention that first before moving to obstruction because again as as judge by be noted the court found that there were multiple factors so although the defendant spends a great deal of time talking about the false statement this is one part of the obstruction hanson it can be affirmed for the other reasons anyway but as far as the obstruction i just want to mention one distinction that's critical here is that this done again and castro ponce which is false statement that was material and willful and each of those three findings the district court made in this case there found it e r five sixty nine to five seventy two quote i'm going to find this plus to use an appropriate enhanced meant based on the statements made to the investigator which were one false i think they were material then she goes on to say you know it has to be what we call perjury so the court finds it was done with willful intent so in that respect it differs from castro knows the court did not make all three findings as far as that point the defendant makes about the significant hindrance i went back and looked at salon again as again and i was reminded that even salonica dina's recognizes that statements made under oath are different and don't require that significant hindrance and you'll find that it had no twelve page nine sixty four and towards the bottom there's a quote actual significant hindrance to the investigation is necessary when in that case it was false aliases but a false statement is given not under those during the investigation so when it's under oath then we're in the world of donnegan you only have to show those three things and you do not have to show significant endurance and i went back and i looked at the guideline again too and actually that quote that i just gave you that part about not under oath that's also in application note five capital b of the same guideline application of description so again i think that the obstruction and hanson was properly found also the district court relied on some statements and as the court already has observed at the change of plea transcript where the defendant admitted various things that shows that he knew it was material and that he was willful and everything else with that i think i think i would like to move unless the court has any more questions on that point i'll move  briefly to the comment and dealing with the six level enhancement for victims as this court knows and as the government has advocated the government believes a district court correctly applied the guidelines in effect at the time of sentencing that is this court's rule that is the law that applies so we think that the inquiry ends once you find there are more than two hundred fifty victims and the defense does not meaningfully disagree that there were obviously here were close to seven hundred victims that the defendant  fraud through his various sports gambling schemes so if you apply the guideline in effect at the time we're done but even as even if you want to move to the question of that november two thousand and fifteen guideline and you may recall the sentencing in this case was in july of two thousand and fifteen so several months before the court covered its bases as judged by be noted i would concur with the observation the court was very diligent here the government also just to cover its bases presented this testimony and evidence to support that we had at least twenty five victims that were  or were substantially affected or had substantial financial harm and there is i don't want to restate it but there's a whole page in the government's answer in brief we discuss you know some of the victim letters and some of the things that were summarized you can also find a summary financial harm twenty five i respectfully submit that once the court finds there is substantial financial harm that that's sufficient buy but if we are going to court just say i find it because i believe what the p s r you know i mean i think that we haven't had a trial and that's that a complicated thing and i'm not sure if i think that the government argued below that it should be a preponderance standard here i mean that would be the first thing would it be propounded into a clear convincing that under any standard but you have to get a name you have to have at least twenty six named people you know i got to show in or show substantial financial harm and with respect to some of these folks the financial harm is only five hundred dollars but they were but they were fairly importune yes folks and so they said it makes a difference i'm going to lose my apartment i don't have a house yes and i don't i would respect that it's not the amount of money that would govern that i really do believe that there is a certain amount that also depends on the impact with this individual five hundred bucks may not sound like a lot to some people but it's a great deal to others and that's a footnote i dropped in my brief but also we did have and there was an effort made to lay out each victim and that's in exhibit eighteen at s e r three o three to three o six there was a chart that laid out each victim and described what how much money they lost except for us and that's also described in the answer in brief forty one to forty two and ultimately the court's finding that there was significant financial harm i would submit is a factual finding that this court could only reverse if it was clearly erroneous and i respectfully submit on this record it was not clearly erroneous as a matter of fact there w to the level of a preponderance of the evidence i don't think under this record your honor i think with what the testimony of the exhibits the government well beyond preponderance here i mean did was it was taken very seriously so obviously defense counsel objected but they put in any contrary evidence into the record you know your honor i guess i'm focusing mostly on what we had done i'd have to look back at that i'm sorry i don't know the answer right now i just remember that there was i know there was cross examined on cross examination of the government's witnesses and i suspect mr leon would say that that is contrary evidence arguably but ultimately that's where the district court becomes the fact finder and that's where you have a court make that finding that there's been substantial financial harm that that is a finding that should be reversed unless clearly erroneous and on this record it was not unless the court has any more questions on that point just with it comes to the forfeiture i would submit that that's been waived again the defendant stipulated below that he was not contesting the order for future and also i think this court asked whether or not the avenue would be i'm not sure other than the bottom line is he does not have the ability on direct appeal after having stipulated to the forfeiture ruling and after having not made any record below about any kind of an impact under luis that there is no plan or even if it's reviewed and i would also note i don't think that he would be successful on a on a hey b s if he was to go down that road i just want to mention you know even under lease he'd have to show some pretrial restraint of quote legitimate untainted assets and we would submit that on the current record the district court forfeiture is well supported to show that these were not legitimate assets with that unless