this morning your honor is my name is karen who care and i represent the appellant nancy jacobs this is the case for the appellant was convicted of making false statements during real estate transactions and mistake are you into the otherwise extensive category and you're saying there has to be at least one other participant besides the defendant is that right dr that that's that government made that concession i thought that i thought the district court was was not impressed if that's the right word by the secretary i forget her name who kept the double files and also by the  record conclude that there's at least one other if you take either one of those two people are obviously his sister based on their testimony by virtue of what they should be whether or not commit the offense and those words are in the record but the question is whether or not then its activities were otherwise it stands right and and why can't the district court look at the fact that double sets of files were maintain mulford signed all these documents even though he obviously wasn't purchasing or selling any of the pieces of real estate and conclude just from those facts alone and the size of this fraud that it was you know confusing the first problem with the second if we're talking about otherwise extensive isn't that a different i mean let me ask the question different members will grow in the light of now that we're in this world of post book and simply say without regard to whether or not and handsome and for a role in the offense as appropriate based on the nature and extent of this fraudulent scheme i still think that the sentence that i imposed is a reasonable sentence based on the conduct of his jacobs without regard to the to the niceties of whether or not she has to make a specific finding as to whether or not the two people were participants if this case was remanded to district court certainly can do that and make a record of that i don't know that personally but they both testified at the trial yes they did ok and neither one of them testify that they were doing so presented to a grant of immunity not to my recollection mr wells they thought he was helping people by signing documents you'd get  hundred dollars and he didn't realize that he was doing anything wrong and i don't i'm not quite sure about his how do you know she was a secretary and she just she just did her job and i don't think that their conduct rises to cram a participant anyway license real estate broker are correct so why can't we conclude from those two facts alone that where her position as the escrow officer and as the broker was as well as let me ask you i mean maybe i'm getting hung up on a legal technicality here and i'm just asking a practical question if she's signing a certification that essentially says you know this transaction complies with all of the requirements and there's no hidden source of money or anything here and you're telling me that i had relied on that then why did this representation to he had he didn't have to specialize relationship with the government for that that's set up for that position isn't an escrow officer in los supposed to be a essentially  a neutral person who sort of takes the money from the buyer and sees to it that it goes to the seller and otherwise makes sure that all of the documents are in the correct form  qualification then isn't she in essence harming the trust relationship that the buyer hands because she is procuring the insurance under false pretenses and letters and she supplies the money which then gets turned into a cashier's check which to make it look like the money is coming from a third source you don't think as a matter of law that that's sufficient to show from the head agent he says this is the most sophisticated scheme that i've ever investigated you know i read that affidavit and after i read the district court relied on it did it not yes and after i read i did research to see if i can find another case that was similar and i did find my experience as a fraud investigator this is the most sophisticated scheme i've seen how can we declare that it's clearly wrong to look at the other two cases that were cited and never published by the ninth circuit that discussed this issue  is it more complex than the normal f h a phosgene i think that's where socialists but we've got a declaration by a person who specializes in investigating had fraud cases it says this is the most sophisticated one that i've the united states to avoid paying taxes in when he learned the government was on to him he was to costa rica knowing that it was no extradition agreement between canada and using it for tax evasion and that was considered something of an above the normal frankly the district court and i formation officer all just did not really focus on that because well frankly it seemed settled that ms howard at least had it in a case that seemed to say then for the otherwise extensive increase to occur you have to find that there was at least one other quote participant unquote now i think the issue boils down to do we send this case back to the district court to make that finding or should we or can we as an appellate court look at the record and say well you know we didn't hear him testify or things that we look at this for the record we can say there's enough here and so it supports a fine you will make or it's fairly undisputed i mean fact i think that's why everybody missed it i believe that there was everybody knows what they did right nobody focused on it that we were focusing on ok let's find out the five participants and evaluate whether they were criminally responsible i think it will be mended back to the district court the district court recites all of these facts which everybody agrees upon and then the district court says and i find that there's been no showing that there's another participant and then i guess the probably be and that's a very i mean let me just read you a little quote from the testimony of cindy how are you saying that i first started working there didn't realize how bad this was and they made it seem nancy and her husband they were just helping people out it didn't seem like it  mr milford although i have to say i do agree somewhat with the defense that milford was led to believe that he was doing something to help people out but there's also the appraiser of the appraiser was noted by in the p s r and also mentioned by the district court when she kind of did not make any finding at all i did want to say that she did not make a finding there were no other criminally responsible just that she's to make finding either way and focused on the otherwise extensive pro so the appraiser vander wier she would give according to the testimony of cindy howard she would the defendant say hey i need you to appraise this property for this price and say ok sure i'll do it he wasn't always able to do it but that was the testimony  howard also as i say mentioned in paragraph fourteen of the p s r and these things are also set forth in defendant's brief at page twenty seven where she's laying out the facts of the case i mean and all three of those witnesses came in and testified without any consideration that they might be exposing inquiring with miss howard she asked is this witness been given immunity and i said w asked which is the case and it just never came up she never asked for anything so you got those with regard to the role so i think that the court can make the determination here that look there's evidence on the record that really can't be does not have to be a trust relationship that's that's not in the guidelines a guideline just because the person is either in a position of public or private trust and in this case i mean it's horribly ironic that the argument the defense is founded making is that an e officer is not any position of trust the very purpose for an escrow officer is to be in a position of trust party bring me your money bring your deeds bring me all your documents but i mean i have to admit that was my  me to be honest and rely on me to do whatever i'm asked to do with integrity and not perpetrate some sort of fraud scheme by virtue of being in escrow officer that's i mean the the primary factor to look  was abuse of position to try to set forth both in technique services and in the isaacson case is basically just that does that position provide you the freedom to commit a difficult to detect wrong and by saying to the world i'm an escrow officer trust me and people do yeah it does put you in that position but here's another factual thing to factual things that may make a difference with regard to if the court views it as as a relationship as there must be an actual  stablished relationship between the person who the defendant is abusing trust and a party who approaches them two things one is with hud specifically provides these forms to the escro officers and in this and on the forms if you look at the excerpt the record it's eleven page eleven of the defendants after i mean there's a certification there over a warning from hud say a false certification on this can get you into trouble and charged with one thousand one which is that is exactly what happened here so she's provided with hud forms second of all a party to the transaction was nor were asked mortgage and norwest mortgage working for norwest mortgage and actually testifying at trial was a woman named the line that's been dollar who was certified as what's called a direct indorsement underwriter by hut hud cede some of its authority to prescreen  loan applications coming in for f h a insurance to these direct indorsement underwriters they take classes with hud they can be decertified if they're doing it improperly so what actually has some presence in the actual part of the bank that prepared it has to be signed by the fire and the seller and herself now if you think about it the seller has no relationship to the bank there's no way that hide could get something from the seller other than relationship that does exist beyond the buyer and the seller it includes the lender the title insurance company and in this case which is also insuring the loan itself from the fall what i was giving you was facts to show that the actually are there is an understood relationship certainly in the industry there's no actual contract between i mean no seller goes to hide it says ok i'm going to sell my property so i need to enter in a contract of use so that we're all well it in this case in the title company are all relying upon the escrow officer to perform escrow functions with integrity and the borrower slash buyer and the seller and this is in addition to the borrow in the south so it's more than just the buyer in the seller yes the response to them is booker that's correct and not only again your honor i would i would stay away from i think i think the court has correctly that everyone relies on this they ask for officer as part of the  as an industry practice and just as a completely well known practice in this industry everyone understands that the extra officer is the one you can trust to honorably and correctly discharge all of the functions mak calls for it just calls for being in a position from the perspective of the victim not a relationship with the victim with regard to these sophisticated means adjustment well actually let me say one more thing about borrowers also the court kind of started to touch on this the borrowers can be viewed as victims in this case and the defendant was in a position in fact the court a five a vulnerable victim enhancement on the basis of the way t borrowers were victimized in this case which was not challenged either in the district or appeal actually might in the district court banal appeal but in this case the dean of the borrowers are being given these mortgages that they cannot afford they are being told that the that the home is being sold to them at a certain price and then it turns and their mortgage payments are going to be you know seven hundred bucks a month then the bill clinton is nine hundred fifty bucks and that price surprise they go belly up but it's that the defendant has already made her money moving on of the sophisticated means is very fact based inquiry and so that's probably why you don't see a whole lot of circuit court cases on it you know the guideline you know look at the sophistication of it and from the perspective of the you know the ability to weather the crime was particularly sophisticated such that it became difficult to detect that it could continue for a long period of time and in this case you know obviously the courts pointed out some factors that would made it fairly sophisticated and it's important to you know as far as a double counting argument scheme to be sophisticated but not involve a position of trust so this is this case in the hands of it does get at a different harm and and also a scheme can be very sophisticated but not widespread and not involving a lot of each other they because they get a different harms and there are facts to support in this case  it seems like the jury instructions aren't really the issue that much anymore but to the extent they are the government's argument is that the jury was properly instructed the timing instruction was really super false statement was made by a seller of property to a third party that third party then acted upon it and bought this property then the property was then resold to the for the park service national park service and both the park service and part and the you know intermediary party relied on the false statement that was made by the senate and the defendant didn't know that he was making a false statement that was going to be spastic on to the park service but it was and he was prosecuted for it and basically the to the test for george agency jurisdiction is very very broad it's simply does it involve a matter as to which the agency has power to act because the false statement was made at a time that the park service could purchase property which pretty much would be from its existence that it was within the agency jurisdiction it is ultimately passed on to so it's a very broad test the timing instructions were just basically of on the facts of this case where the statement was made directly on hud form that says don't lie and is formally be prosecuted to get heard insurance it's fairly clear that the timing is simply irrelevant and immaterial answer and i just want to read this one sentence from the excerpts of record page three twenty three it's this is the district court and the district court says it appears that the government tacitly is conceding that although there are five person helping the defendant and they're only need to before actually because she can be the fifth the government seems to be saying that since they were doing so with the knowledge to make them participants within the meaning of the deception of the guidelines that