then argued for and obtain the sentence for a far more serious far greater crime as a result all the trial court sentenced mr burns to almost six years longer in prison and ordered three point three million dollars more in restitution than the guidelines mandated for the prime of his conviction john byrne's was an employee of a company called usa retirement his that he made to investors during his sales pitch to be clear the government took the far easier route of trial approving only the more limited set of misrepresentations in of not having to establish that john byrne's conduct because the investors lost the government repeatedly made sure clear throughout the trial that john byrne's knowledge or lack of knowledge of the ponzi scheme was irrelevant to the crimes he was charged  before during and after the trial the government did two critical things the first thing is the government offered not a single bit of evidence that john byrne's knew there was a  government did one hundred eighty degree about face advocated for and obtained a sentence that would only have been appropriate if john byrne's had participated in the than the maximum number of possible crimes the potential recovery of victims of the crime is undoubtedly limited and so too is the potential sentence that may be imposed on the defendant well that's true for restitution right because it's limited to the calculation are different although both are required to meet the proximate cause standard in order to apply that's correct your program foreseeability i thought was the standard for  guideline last calculation that's correct right in order to apply the guideline loss the guideline sensing hanson for victim was the court needs to find by a preponderance of evidence at trial that the defendant without justice from this court john burns will spend an additional six years in prison mr mangas if i understand your argument though when in essence he was convicted of having deceived those to us he's lied to them to con them into making these investments without the government being required to prove that he knew they were going to lose them as it was part of the ponzi scheme nevertheless he lied to them to cause the investment i guess i'm i'm not i'm not i don't see the disconnect here so use since an essence what we've got is a wrong for these victims that was carried out by several people so your honor that where the distinction there is is as we discussed under the sentencing guidelines the trial court is required to find that the defendant caused the victim's losses and as they also say they would not have made the investment correct in that your honor is but for causation is one of the two types of causation that the court must find and certainly we would concede if burns made material misrepresentations to the investors then th remember it was her saying raising question i don't remember an objection but maybe you can guide me to the right place so it's sensing i'm talking about the sensing transcript page fifty three line twenty three through page fifty four line three that was when the victim was and yet came up in the context of sentencing in she made an argument that because he was not culpable for the larger conduct the ponzi scheme his responsibility for the ultimate was was relatively small requires only the objection to be made not to be made perfectly well it's it has to be coherent for the judge to have to respond to it for the life of me i'm trying to figure out how we would went to answer the first question first what he did wrong was not find on the record that john burns approximately caused investors losses forty and part of that finding would be that those losses the conduct of his employers or laws in prevail the decision to hold him accountable here based on circumstantial evidence in essence of this was such a great legitimate investment why were you lying to customers about it to get them to invest by claiming to have invested yourself in claiming a degree of expertise that he did not hold why is that not an unfair inference oh well your honor if that were the inference then that would be read foreseeability out of the sentencing guidelines in other words if you didn't believe in the larger fraud if you didn't know about the larger fraud you would have lied about the smaller fraud in the first place that would completely read foreseeability out of the sentencing guidelines how it is known i think it's just like a case i didn't your honor author called niko in that case the defendants were  husband and wife they lied on the hud financing statement agreed with the buyer to give the buyer a kickback they didn't disclose that information on the hud financing statement that was a fraud now it turns out that the buyer they were  case was that well they would have committed this smaller and if they committed a smaller fraud you can infer that they must be involved in the larger fraud and this court disagreed with that kind of what the language it's from page seven so the of the dum and just because the defendants were involved in a fraudulent scheme does not necessarily mean it was reasonably forseeable that all the subsequent economic damages were booker especially when there was no evidence they knew they were selling the house to what turned out to be a fictional buyer a second quote from don you go on page seven seventy sixty seven seventy seven which is what i was referring to about reading for see ability out of the guideline said quote we reject that argument because it removes any reasonable foreseeability analysis out of the sentencing guidelines if the government was correct practically every defendant convicted in every fraud case could be held responsible for every result me was foreseeable or not honor in this case john byrne's lied to investors to get their money there is no evidence on the record that he knew his employers were then taking the further step of stealing that money in a fact attempted and at least two occasions to offer evidence that he was unaware of the ponzi scheme government objected and judged of course sustain the objection and told john burns we're not going to hear your evidence we're not going to hear that you're doing this in good faith because it's not relevant you're a little time you're going to do it no to conclude there the argument is simply you cannot have trial when the government offers no evidence held responsible for the larger ponzi scheme he was sentenced he was convicted of his part in for his party and lying to investors to get them to invest some three point three million dollars with usa retirement that was the amount that he was sentenced for the ponzi scheme overall was responsible for an order of magnitude of was greater than three point three one is over thirty million dollars  burris is not sentenced for the thirty million dollar loss figure he was sentenced for the three point three million dollars figure he was sentenced and that figure that wasim out is an actual lawsuit by agreement with defense counsel there was explicit agreement at least twice in the record that burns agreed to that last for the probation office that p s are noted that that was the last figure that the government content you know was asking for and noted that there was no objection by the defense at sentencing the district court reviewed the p s r the guidelines calculations with with all the parties and noted there was no objection by the defense any fact there was no objection by the defense mr burns agreed to that amount as a last figure the reason he agreed that that was in the and thus he waived and contention that was incorrect was  so there was an agreement it was explicit it was on the record and it was first ricky egypt reason there was a good reason to waive any objection to the last figure number one it was the more limited figure that was restricted to the losses that burns himself because not the not the thirty million dollars loss figure caused by others in the ponzi scheme the three point three million dollars figure that he himself  that's number one number two that was the actual loss suffered by the investors and number three the reason strategic reason for agreeing to that last figure was  burns's strategy at sentencing was basically to it's consistent with his position at trial that has to portray himself as somewhat of an innocent do who thought that this was these were good investments and was taken by surprise when it all went bad and that he was going to do his best to make good equally rejected burns's claim that he was an innocent duped that he was naive about the whole thing and as such hamilton pointed out concluded from the from all the evidence in the cases and drawing inferences from the evidence that burns must have known what was going on and he must have had suspicions about what was going on and he went forward in the face of those suspicions and became the best salesman of this ponzi scheme that amounted to a finding if one was needed in the face of the waiver by the defense that he must have had suspicions and he went ahead anyway because three point three million dollars in lost counsel this morning didn't really focus on it but he overwhelming evidence that this that the lies and burns told to these potential investors was in fact material were in fact material they were and the jury properly convicted him fraud in in telling those misrepresentations those were misrepresentations that were capable and the jury was properly instructed that to find his target they had to find that they were the type of misrepresentations that were capable of influencing the investors decisions obviously they were the type capable and in fact they did influence events and i submit that that's exactly why burns told those he was in essence by telling these lies vouching for the safety and quality of the investments he was trying to sell that's fraud you can't falsely represent facts in an effort to get people to give you money that's exactly what he did so i think he was properly convicted of the fraud of the good faith is a non issue because even if you believe that these were the greatest investments ever he's not permitted to lie about you not permitted to tell falsehoods to get people would give him money  for the for the amount that he was personally involved in obtaining from the investors and restitution again burns waived any objection to that and agreed to repay it it was part of who the strategic reason for that here last amount of the guidelines restitution under the statute and forfeiture right they're governed by different standards on the forfeiture how do we go  one a to b the says proceeds are defined as the money wired through illegal transactions resulting give forfeiture less direct costs and under either  dollars and so we're done we're not done the three million dollars is not the indy analysis that's the beginning and the last requires the court to find it burns proximately caused three million dollars in other words that the he was reasonably foreseeable employers would steal the three million dollars that didn't happen as to the finding on the record by judge chorus judge court the course would not make an explicit finding on the record that the loss was reasonably forseeable rather was he not a clear and explicit factual finding it earlier i understood ok you mentioned the one objection having to do with the thirty million pages of the fifty two and fifty three what was the other one the other objection where you think this was raised before judge because it's the same objection your honor she says that he's not responsible for the whole three point three million i don't know where she gets to the number but she says he should be responsible for a mere three hundred some thousand because he was not involved in the pon scheme it's a poor articulation of causation and of the lack of forsee ability to fund the scheme but nonetheless she objected and that's all the water requires to find a waiver in that instance she  the government at mis that the defendant is not alleged to have knowingly participated in the ponzi scheme that happened to us in retirement furthermore that short appendix one forty eight and one sixty four the government argues in its motion t