organizer or leader or manager or supervisor it is not appropriate in the context of the four level adjustments where precisely what distinguishes a leader organizer from the manager or supervisor is control and authority over corporate structure here at least as regards the promoters maybe there wasn't enough c b executive suite in hong kong or whatever but with the promoters there's no there's no nothing like you might see in a corporation or even a mafia unit for them and then you can keep the cash but that's not that's not an order from on high that's not that's not an order from a company it's not something seeking the needs to happen that's something the for motors are doing among themselves to have to grab cash i do with by the very nature of the organization i don't and so here you know if you look at the if you look at the things that the that the notes say it's talks about the nature of that in addition to degree of control or authority i guess one of the issues is like whether you can control people with whether whether the only way to control people is to like to have the right to order them to do something obviously doesn't seem like he had that but also does seem like he had the ability to get people to do what he wanted them to do and so that seems to be to be a trial the other things are nature of participation the commission of the offense i mean he's dog other than the folks back  recruitment of accomplices i mean that speaks for itself here claimed right to a larger share of the profits of the crime i think that speaks for itself year degree approaches a patient in planning or organizing the offense your point as well say it all happened back it with howard stern but you know he was making videos maybe a rd direction but he was making videos and figure out how to make this work better but you're really focused on line or like i said like a military style hierarchical control but what what about the idea that he could he could and did exercise a high degree of control by using what you would call soft leadership skills i don't think  that the st overt act which was in october of two thousand and eleven well as a member of the conspiracy there is no question that he joined the conspiracy at some point october of two thousand and eleven as the government claims and supporter going with the evidence on a trial or you look at the later day when whoa explicitly agreed with others to continue the conspiracy anything on the record where the prosecution made that suggestion and in fact and i think this is quite important when the prosecutors argued the case for the jury in fact they are the prosecutor argue coconspirator in closing argument government counsel made that clear in the argument that would be one of the necessary things for the jury to find show that was one of the reasons why  we argue that it would be harmless here and not prejudicial because the jury would not have been ingenues by the instruction and in addition to the fact that other instructions he believed when read in context with the bankers instructions convicted on an ending and abetting liabilities and there was no challenge on appeal as to that aiding and abetting instruction and the government argued that there was ample evidence to establish that glow aided and abetted those involved namely his downline in soliciting the investors who provided the wires which are the subject of wall procured or induced those individuals to commit wire fraud and here there was ample evidence of that he trained them he trained them basically in how to lie and misrepresent what  was offering to investors he personally profited from his down lines development of and recruiting of new investors and so we would submit that all the challenge  connection to be in furtherance of the the wire fraud scheme and as i believe the government argued in it and its papers there was sufficient evidence standard in particular that that wiring was in furtherance and the reason i want to know the plane air standard is because in the district court there and the wiring because it wasn't in furtherance he made a rule twenty nine motion on other grounds and because he did not make the argument for the rule twenty nine on the grounds that he now uses on appeal absolutely taking into consideration the evidence at trial that l n was one of the top down lines that he started working with well in july or august of two thousand investor funds and that her pyramid raised one hundred and thirty seven million dollars and she was only one level below well in ranking i think we submit that there was ample evidence for the jury to reasonably investment fraud scheme involving a pyramid which is what we have here is quite different than a drug conspiracy or a violent crime conspiracy here pyramid was responsible for raising over half of the two hundred and sixty million that was raised by c k v and he was the top producer he had a right to a larger share of the fruits and indeed three percent of the overall does speak in those terms and to the extent that the court needed to look to some participants some coconspirator in the scheme who well have organizational  over i think there was sufficient evidence that he he had a fact the fact of control over when the elite when they leave is a person who he trained who he spoke to on a regular basis when investors complained his relationship with her was such that he came out to los angeles where she was based multiple times to present to her group she had tremendous influence over her ability to succeed with her own group  soliciting others so to the extent that they law requires that there be some control over at least one of the accomplices or the coconspirators i would submit that there was de facto control degree in terms of how much they were involved in organizing and how big their pyramid was and it was pretty well she was full of well but yes she had a substantial pyramid she made i believe a couple one million dollars or so that she derived from th you didn't think they were after early leaders that are going to be frank i was not involved in that part of the case so i would only be speculating about what was worked out between the prosecutors and the cooperating w it would not be unusual for a prosecutor to work out a cooperation plea agreement that took certain factors into account and weighted others more highly than some others but i would only be speculating on the record as to how that worked  i think i would submit that the court is confronted as as well as counsel is noted with a somewhat if not novel not common situation here i've also looked at three b one dollar leader organizer cases hoping to find one that dealt specifically with a pyramid scheme that was applied to a high level organizer or a leader in a in any kind of comparable role and i was not able to find one but i don't think that that should the turn of the court from finding that the district court abused its discretion or did not i should say did not abuse of discretion and concluding in applying the factors that the court didn't use the specific words control or organizational forty the court did take into account among other things the relationship that i had with when do you leave that i mentioned so i one that's how we arrive i submit a two hundred and sixty million of investor money taken in a relatively short amount of time because of the aggressive organizational on promotion by well as a leader he was basically the leader of the promotional arm