claims in the same order as the three beginning with the of these a position of trust in the briefing there were some detail about how to do the grouping under two at one point wanted but there's no dispute about that so not if the court has any questions i'll move on to the wrong side of the line so what would what would be an example of a of an abuse of the position of trust in a money one hundred contacts could you ever happen absolutely your honor that would be for example i defendant who weren't around for them to be laundering and tell the tell the abuse that already occurred that's your conclusion right that's exactly right there were no proceeds at the time that they tracked the checks were directed to be endors source of the fund in a real sense is bandar it's not pertinent at all to begin with because vanguard is not a bank so when describing black letter law about the relationship between a bank and it comes to merge it's not describing vanguard which is an investment management company a bank in shock and loan out the fund in vanguard tecate it's the account owner who benefit term investment vanguard merely charges feed it is bandar not the kind of institution that included in the the meaning of the guidelines what it talks about we're right back to saw that's that's exactly on what sharp sanctions are saying yeah they count holder on the money but there's a property interest there's a kind of an ownership interest in the bank to hey it's not a bank different from a bank and the question i'm asking you i know it's not a bank but isn't it exactly in the position of a bank in the sense that it's covered by the guidelines interpretation or guideline it wanted to the bank can't do that here to thank mike turn it over to the state to be protected for the owners this is not the case where stanton would be not if for example we were talking about a financial institution own operating funds such as that that from payroll or inflated billing to a financial institution for capital improvements or if we were talking about it different type of financial institutions such as an insurance company which was the owner of its own fun here vanguard an investment management company and it did not meet the capital and because it is not the accept that there was a mistake prong three is met and after the th prong the supreme court says morale is that where the guidelines have been miscalculate a reasonable citizen with their right error then i think your honor is correct all right then were were all were talk about prawns one and two so please take this to you position and add why this is not fair speaking specifically to m horn's point at the p s r talks about things that mr kappes did to get the money out of the vanguard accounts not about things that he did in abusing a institution has the ability to defraud the financial institution has the ability to direct where those funds go to further into cilla save the money laundering he directed the funds to his brother in law you don't have the ability to delete any record of that from vanguard all that's understood and all there and they're searching is that all goes to the fraud and if you if we take your interpretation of this we come ple ignore and undermine the application no to see because that is the abuse of the position of trust with respect to the underlying act not with respect to money laundering how is that  will always be a buy for cause obviously you can't money launder proceeds of criminal activity unless you've got criminal activity that's the whole point of the application notice to say to district court judges look if you're going to do this don't hit the person for the underlying action only use this application know and use and handsome and if if it's not associated with that underlying activity you've got to answer that assertion that your argument proves too much because there will always be but for causation except when in the circumstance she outlined where the activity is itself a banking person money laundering drug dealer stuff well not not every fraud necessarily creates the ability to engage in money laundering a fraud committed by someone who's working on a financial institution with  i'm not sure i'm not sure i understand what's left of it if we accept your argument that it's a budget for cause it's good then what does it wall off what does that patient note say it's meaningful if that's the case mr gelb and how could they be convicted of laundering the funds we're talking about somebody who did both which i take it is the whole purpose for the application no to say you did and if you did vote in a if someone in a bank simply longer drug trafficking proceeds that person would abuse it's a different trust only with respect to money laundering money laundering right there are a lot of circumstances where i think in this case from the proceeds of those two large checks to other people that is the money laundering that's my understanding is that correct that's correct ok so what of someone else through those checks not mr where the funds are going and then set it up server farms have been diverted back to him in a way that conceals the source that is money laundering his position allows him to do that if the money laundering were scared me i don't see how is the it allowed him to commit both offenses you know maybe a circumstance that the conduct that allowed him to steal the money is an abuse of the position of trust once he's got the money what position of trust is he abusing and passing  explain what position of trust he is using at that point he's got the money in hand that he did view the position of trust now what position of trust is he occupying when he gives that money to his compatriot in crime when he passes that he's no longer doing anything with respect to vanguard at that point he's already stolen the money he's got the money at this point he's handing it to somebody how you say he had that he had to use the vanguard system to decide where it goes he's using the vanguard system to collect the money at some point he's got the money he diverting it then into an account where he can launder it if understanding very correct term ok so here's here's a hypothetical he he i mean sure it's a hypothetical to this point he's stolen the money now he's got the money getting that and stealing the money in the way he did i don't think anybody disagrees that abuse of the position of trust i don't think his horn is saying that i don't think anybody on this panel is confused about that now the question that we're dealing with he's got the money and hang on the application notes seem to be saying now ignore how he got the money because that's not what you're supposed to be thinking about as you apply this question of and he has been for abuse of position of trust don't think about that now think about indeed using a position of trust as he does the next thing with the money that's what i'm trying to get you to answer what the position of trust he's occupying having stolen the money in passing it off to his cohort inclined but the feeling of the money and the passing off are done at the same time the way he steals the money and to remove it from a given account and then directed to his brother in law if he were to turn that money into cash and walk out with that i think there'd be a different situation where what he does with the money after that would would be different it just can't be separate it have a bearing when we're asking the question of whether the financial institutions reference with respect to these crimes is one covered by the guidelines dollars that were the proceeds of this fraud where they derive from a financial institution and they government doesn't talk to correct the growth receipts doesn't talk about them that they are returning from or being owned by the financial institution it says they must be to understand what would the purpose be of the outlining financial institutions including mutual funds and investment companies if it if it weren't the case that they could be viewed as the source of funds when there's embezzlement or that i think that's why they're included in there i think the concept is anytime a financial institution loses a significant amount miners at risk of losing a certain amount of money that deserves a guideline unhandsome it doesn't matter whether put them in terms of jeopardy but the what's the answer to her argument that definitively that the intent of the did not apply because the records aren't clear as to whether the two investment firms in this case invested any money on behalf of their clients so even under the stinson facts where money simply went institution he's putting the financials he's not just at risk of loss but in addition where they've actually lost more than two million dollars so i can't imagine a circumstance where this enhancement would apply to any firms with and then card are within their dominion and control they have the ability to every make those funds and in fact they have an obligation certain circumstances to alienate those loans and send them to the state d when they're gone and i th that's a distinction without a difference because vanguard is responsible for those funds and money is fungible so the bear we had a minimum that the f they commission was to the trouble of including investment funds and mutual funds in this because they were worried about them getting ripped off by their contractors because that seems a bit of a stretch  trying to figure out whether it's a financial institution from which these funds were do not derive and i guess i'm not here what is an argument that they're not they are financial institution now you're arguing that it wasn't really do right problem and so we're back to the question of whether being unfairly at least enough right exactly would not derive from vanguard and being a family remember that maybe even some minimal property right which is enough for bank fraud but we're talking about one million dollars that is van let's move on to the and have you answer mr ignatieff argument that in these in this factual circum you know it cannot untangle the that from the money laundering those things are happening at the very same time and so the distinction that you've drawn in your briefing and that you argue for it doesn't hold up because the facts here are views of the position of trust happening because there are no proceeds there may be other statutes that are fuzzier but the money laundering statute is not there has to be a discrete predicate crime before you get the money laundering the transfer from the dormant accounts of vanguard to mr toben now frog and then tobin