down so keep track and we'll try to help you do that but sometimes we get carried away with our questions but in any event will make sure you get a chance to respond thank you and based upon the briefing for the amount of fraud loss as well as the number of victims the second issue is whether the district court was clearly iranians in finding that there were over two hundred thousand dollars a fraud los judge said i'm going to hard to curry convincing evidence standard even though i'm not sure i have to so is your argument that the judge didn't apply to the evidence wasn't sufficient to establish it or is your argument was giving its oral ruling it did see that well it doesn't feel as though it's a preponderance of the evidence standard was met but definitely not i'm sorry so so if we found that the preponderance standard was correct is the government argues then your client loses some have point and i mean i guess i'm trying to figure out what their makes a difference what standard we look at we would argue that it doesn't make any difference because in regards to what was presented sentencing hearing you had the affirmative declaration of six merchants who stated under penalty of perjury for them under penalty of perjury that we did not suffer any losses or attempted  there was mission by the teaching for the government who basically said that some of these on the list of merchants were not the victims and so that sort of thing consistent because if some of them suffered credit card losses i'm so the merchant would not have been the victim so the fact that some of the merchants and we wanted to make them is consistent with the credit card loss issue yes in regards to that and i mean i read it i think the same way georgia could be suggesting which is that you reserve the right to challenge the amount of loss because maybe one credit card fraud was fifty dollars and the judge found it to be fifty thousand but did you reserve certain amount of loss a hundred thousand dollars and you want to say that was erroneous you could say some of the victims weren't victims or that but but the loss could say the same so in other words some of the merchants if you argue some of the merchants didn't actually suffer a loss because they got paid a great card via credit card so the number of victims may have been smaller because it was the same bank that issued all these credit card but even if the loss amount is reduced it doesn't necessarily mean that there's a change in number of victims more or less and without specifically reserving the right to challenge the number  i just don't see how that isn't covered by the appellate waiver you have which the amount of loss is not dependent on the number of victims if you have one picked up that separate everything yes your claim that these were not victims who were trying to steal your last theory which is a separate issue which is that the merchant didn't lose any money because the credit card company reimbursed him or because he couldn't find a record of it we can count that as a loss but agreement i can only you know we're reading if you say we have the same we come into it the same way you do we're trying to read it on its face and determine what it what it waves and what it doesn't and if it doesn't seem to reserve the right to challenge the specific subsection of the sentencing guidelines and it lists out the fraud loss calculation and the production of confit access devices as to issues the defendant specifically wanted to reserve for purposes of appeal because he felt he wasn't responsible for the total loss because other people were out there committing transactions though by his own admission he was the phone guy and had to participate in every transaction because he was manning the one eight hundred number which through social engineering would allow him to convince the merchant to put through a transaction that had been declin addition the defendant reserves the right to contest the production of the credit cards the credit cards that or at issue for a large portion actually a large portion of the transactions were held by the defendant's girlfriend jennifer to their intent the h and r block card is one of those cards and a net spend card is the transactions and you go down through how the cards were used he was claiming that he didn't know or he wasn't responsible for the one eight hundred nine hundred number on the back but the court found that he was because today's testimony when testifying identified him a score so he was at the core of all the transactions and therefore when that number that he applied for was put on the back of the card even if he didn't do it of a con if it access the vice was created and the judge properly small companies they may not have good records they may not want to appear in court whatever is that sufficient so with respect to those lawsuits that are disclaimed by the merchants there is still clear convincing evidence of those and the reason is for a number of reasons number one the credit card records show that the particular card use was swiped the agent could see the merchant involved could see the date and could see the amount so there was a at least an attempt made to conduct that transaction at that particular location and then the two in the issue with respect to the issue of actual loss where something was actually obtained from the merchant they testified that they remember going into the stores they could tell you what they got and they were present and it was in fact co op board erik ledford who was on the phone assisting with the transaction by acting as a card services representative so there was a lot of evidence corroborating each one of the transactions that the court found and the court did not disregard all of the affidavits or declarations the court found in two instances and it's the two instances that defendant raises the joy to vive and food pantry i believe it is a court had the declarations from submitted by the defense and he said these do not match up with any of the losses that i'm seeing here so i'm not going to count those any losses with a so with respect to those the court did address the issue of the timing and the timing of the declarations going out the occurred approximately two to three years after the transaction some of the transactions were back to two thousand and nine so the court looked at that and gave it the weight it thought that location joy to be response we didn't have a loss that's western there's police reports there was an actual loss when the card was used for one night and then went to the rich and tried to obtain additional nights the police are called and she gets arrested so there's a lot of proper eating evidence and the court on the on the bold face assertion of a of the document i was not satisfied that that was enough to overcome the the credit card records the direct testimony of the witnesses the agents testimony the corroboration by the by the use of the phones the one eight hundred number and in some circumstances the link chart that the agent drew up showing how the defendants communicated with each other to carry out one of their frauds am i correct in reading judge's finding said the judge did not consider any transaction for which two three times testimony was the only cooperation yes it is a matter of fact there were two transactions that the court felt were not  corroborated and those were jake's action video and royal garden hotel and the court specifically stated that and this is where i would argue that the court was very methodical and didn't just rubber stamp  government's exhibit one the court went through it itself and it said i find that there are two where there is only to their instance testimony and there doesn't appear to be by phone or other means of says that didn't make it clear and convincing that's what he felt at that point and he disallowed them and the reason why the total in the chart doesn't match up to the total that the judge found is because he actually subtract out those two and in our grief we went through some of the math to show how what he found minus those two is an accurate total for the last or one of the other things that is important to mention that every one of the merchants where there was an actual loss they had these individuals come in pass a cart the cart is the client through social engineering mr ledford convinces them that they're good to go and the transaction sounds and they're going to receive payment they believe with the merchandise this is i think just to unsigned legal point if you used the term social engineering a couple of times does that mean scam yes oh and by by phone he is calling in and he's convincing van you know i understand what he did you just call him a social engineer it's your honor  but the issue is that each one of the merchants had merchandise walk out of their star store with the individuals and then when the computer comes back online after the offline transaction or there's an issue about payment with the card the merchant has actually lost the value of the item and it's not temporary the merchant would have to be reimbursed or there would have to be issues to settle and if that the merchant didn't offline transaction that's not within the system in the normal course of their operation when mr camorra argues about the loss he also there has to be for the attempts time assumption he'd like to somehow yes you're for the attempts where there is no actual item that walks out the door concern i have two minutes one only but two minutes on the clock i just wanted to pick up what the government left off with the all ruling by the district court is that they were going to be disallowing because of that as well as the case is agent testimony that the victims may not necessarily be those that are listed on the exhibit one char so your honor in summary i basically would argue that based upon the merchant declarations and the admission by the case isn't that does not meet the clear and convincing burden of proof that is required for the judge to find that there was over or more than one hundred or more than one hundred twenty thousand of fraud laws and more than fifty victims our position is