rejecting defense counsel's request for frank's hearing notwithstanding testimony from the government's star witness calling into question the only facts in the warrant affidavit providing a connection between the alleged criminal scheme and commonsense inference that the judge took as to modern technology or that or the or the agent statement of training and experience to look into those two factual statements the first statement and really the most important of them was whether mr hiler told the affiant that ms heiler and ms white discussed this case at ms white's residence and the government admits on appeal that quote taken as a whole ms huyler's trial testimony called into question that fact and the government further admits quoting the district court that the quote rather emphatic denial now in the words of the government of that discussion may satisfy the first prong of the franks test where is evidence of reckless or rather emphatic denial by ms filer as to whether she discussed business with agent david's there was only doubt in the only question was whether there may have been some passing conversations regarding ms milne and any of those second statement relates to whether or not ms white has a home office from which she conducts business now miss haile testified at the trial that she had never been inside that room and she did not recognize photos of the room which were presented to her during the trial and the bare fact that the home office or room referred to as an office we don't know how it was actually used and miss heiler displayed no knowledge of that fact is not sufficient to provide a nexus to evidence of this particular crime was an emissions case which is subject to a higher standard in the affirmative misrepresentations here but this court stated that where the statements were central to probable cause and the officer would know that the statements were central to probable cause that could give rise to  that the statements were not merely negligent but they could rise to the level of recklessness now without these statements under the second prong of the franks analysis there was no probable cause remaining for the search  the only remaining recitation that this report could rely upon was the proposed training and experience of the officer that it is common for individuals in these types of crimes to keep evidence is at their home based on the purported blurred line based on modern technology between the home and office but there's good reason to discount any indication of training experience here in i think i would be inclined to add to that common sense right but you don't even have to address that go ahead it just begs to hear how you disco train experience in this country yes your honor first the training and experience invoked by the officer and the training experience that the district court relied upon was all in the in the realm of drug cases and there hasn't been a similar invocation of training experience to establish that type of connection in fraud cases which of cases often  that's correct your honor but as this court said in law all and in williams the connection in those cases is between the contraband but the drug dealer is presumed to keep on or around their person or their residence there hasn't been a similar finding by any court in this circuit regarding fraud cases that at this the mere fact of having a home office would be a dramatic expansion of the nexus requirement and would be contrary to what this court others held up the mere advancement of technology and not if this rate the fourth amendment fundamental guarantees a ruling for the government in this case would mean that any professional that's accused of criminal wrongdoing could have their residence searched without any more evidence supplying that nexus just based on this intuition as to what individuals may do you in the yes it said that one of the main features in that case was whether the advance of technology would circumscribe the fourth amendment guarantees and it said that with respect to the home which is at the apex of the fourth amendment protections that the mere advance of technology would not mere advancement of technology does not if this rate the fourth amendment and the nexus requirement that this work and others have have required has generally fired a factual basis i was your best case with your second this perhaps riley versus california it's not in the briefs but again it applied this technology and so more broadly to state that the mere fact that people are holding a troves of data on an electronic device is doesn't mean that we can expand searches in  speculation based on based on the people lurk line between home and offices as the judge said i don't want you to read yes argument i'm happy to feel you're honest questions but i would like to transition to the sentencing arguments if i mean at this point first that the procedural errors in this case and there were two the first being the misrepresentation that the defendant was acting on behalf of a government agency and the government has pointed to no case in the district court cited on where this is where this principle has been applied to an anonymous document based fraud such as here the text of the guideline commentary further intuition however if if this was a speculation based on an accomplice that was not a misrepresentation i have the defendant asks the defendant's own authorities who even under that interpretation it wouldn't satisfy that and moving to the second hand sophisticated means the guideline commentary there says that the scheme must be especially complex and we need to take something outside of the ordinary generic fraud and here this is essentially a basic money laundering case which is not anything beyond the ordinary engineer of the government at trial explained that this was a commonplace fraud using commonplace tools and indeed beyond the commonplace tools there were numerous errors littering littering the notices and other fictitious entity if it did anything which is to accomplish merely the bare facts of what was required for the money laundering count so i don't believe we're outside factors yes your honor i believe this is a it's a common it's a common scheme this for good measure which is inappropriate under under the gall case which requires a subset a substantial justification for an above guideline sentence and the more substantial justification for significance of the shoe all he said was that the district filed affidavits saying i don't work at home could have i have clients make similar affidavits could have cross examined the case agent who testified at the earlier suppression hearing all of these things are things that could and should have been done earlier now i don't want to requires these two prongs and they're essentially two parts to the first one is your false statement and was it either knowing and intentional or made with reckless disregard for the truth now at most the defendant here can show that there is possibly a false statement but the district cross examination does suggest a full statement but the redirect testimony is judge talking points out walks that back and says i may have had some conversations and the fact that those conversations were about health care that still of the case but having conversations about health care as heiler testified were about this case and then event that only gets you to state i think is both judge keenan and judge duncan pointed out there is frankly no one not intended no evidence of recklessness or deliberate conduct on behalf of the agent and if anything the evidence seems to point the other way heiler made clear that she had numerous conversations with the agent in question or it's that would suggest that there's a free flow of information she may well mention at this one time which is simply not all that fact in the franks case itself what this court the supreme court was concerned about is agents essentially making this stuff up possibly never even meeting with witnesses and so you have so the district court recognized that the evidence was stronger with respect to the office not the home office in the residence but the defendant's office was in the house but it did find as your honor quoted evidence after hours and i would just couldn't be couldn't be we don't know well in fact the district court the evidence of after hours activity the district court of page fifteen twenty four of the about taxes and obligations that were sent at hours of the date in other words the district court wasn't making up out of thin air  the home office and whether she ever discussed anything short of answering evidence isn't inconsistent online it's consistent correct i think but the evidence was certainly inconsistent whether there were discussions regarding that was followed by a reference to the specific thirty five fifty three a factors and importantly that reference itself refer back to a very extensive thirty five fifty three analysis that the district court had already done and talked about the nature of the offense the severity that sort of i think you used the words the trail enormous magnitude and very importantly the need for deterrence and protection from the public one of the pieces of evidence that came out during the sentencing hearing was th of course think those were properly applied by the court if you make two arguments on the question of misrepresentation by the defendant i think are stronger argument is the second phone call i think it's it is within the ambit of the of the language of the guidelines the argument that the fact that her fabricating tax documents wasn't fact a misrepresentation that the defendant was acting on behalf of a government agency only the government collects taxes certainly the defendant didn't identif herself on those fabrications so i think that that would be a justifiable basis to uphold the enhancement but really there can't be much of a question on the second of our two arguments which is the phone call as judge duncan indicated the only person that that would have benefited and it's not clear from the record whether in fact it was a benefit whether the arrest came before any benefit flowed from it was the defendant and section one b one point three it's a one way of the guidelines makes clear that applicable not only for the defendant him or herself but with respect to any act that the defendant causes aids or abets and in fact the district court recognized that the defendant likely if she hadn't made the phone calls herself perhaps altering her voice that she had caused someone else to do it that's not a clear case fine i think that's a very common sense with respect to sophisticated means i think the court identified exactly some of the the reasons why that was appropriately applied account to daughter and for other things judge can and i don't think there's a specific case law as to whether the scope of the length of the scheme is directly relevant it's certainly the case that the court should consider as and the district court did all parts of the scheme working together but the fact that this lasted for three years and she was able to deceive someone who had a ph d and was an intelligent individual i think does speak to the fact of its sophistication alongside of touching all the boxes of their being  it's such if i can i just want to circle back and say one or emphasize one point because before going on to the sentencing issue if you really want to size the fact that there is essentially no evidence that there was this is back to the franks issue into the first prong that this experience you have a problem but i'm not sure i'd go that i didn't go that far i think we could make an argument and i think that i mean the districts and i take judicial notice of the fact that it's just common sense in this environment in this type of product if and i think we  brief and so it's been said that some do take things literally and some things seriously you really think the district court david zero i do with respect to the updated diagnosis and the district court's reasoning for that was was rejecting the precise methodology that it accepted previously specifically relying on interviews from those closest to miss white and the closest connections with her and the district co helped previously in the dark hearing that that was exactly the type of thing that an expert should you when trying to come to it to a diagnosis but the district court completely reversed their reasoning at the sentencing hearing holding that that same methodology know propre it and further the district court relied on true clear errors in attempting to discount that new diagnosis the first the government admits the district court discounted these interviews claiming that involves an attempt to undermine the motives of the family members and the district court claims this is only coming after the trial when when they know that conviction is coming and it's time to lessen the sentence i really think the judge didn't think th way some serious psychological issues she certainly has issues beyond that the dissociative identity disorder in this case so it's hard for me to understand or appreciate  them as he should hear and determined that dr hundreds prime gnosis was not entitled to any weight because the method used was unreliable and sufficient facts and data to support the opinion did not exactly  government said they said we can just rely on training experience not in every case but there are some recent predicates here but if you look to the other aspects of the warrant affidavit here we have that same agent invoking their purported training experience that evidence drug smuggling would be found at the home and the evidence of bank fraud would be found at the home neither of which were charges in this case neither of which were ever proposed to be charges in this case this is a cut and paste job from one warning to another and so it lends us to doubt the implication of training