to additional errors in its relevant conduct finding first it applied the wrong standard of proof in holding mr igbo nouveaux responsible for all losses beyond the counts of conviction because that was the tell that wag the dog had a disproportionate impact and therefore under hind this i know judge smith you are on that panel in your highness the court need to apply the heightened clear and convincing standard second under any not an exceptional circumstance and you don't need to have a clear and convincing has never proved you prove that i did so one argument about what is today is what happens with a twelve year period is that the appropriate  misconceptions that in terms of the burden of proof argument that applies to all losses beyond the counts of conviction that's our argument in hind this is very clear on that point  says is we are going to divide the losses in a fraud case into two categories we're going to look first at the losses admitted in the counts of convictions then for uncharged or acquitted or non convicted conduct we're going to look if those lawsuits and if those losses have a disproportionate impact on the sentence we're going to say the district court had to apply the clear and convincing standard here the counts of conviction the three counts have a total loss value of approximately six thousand dollars we know that the relevant conduct losses had a six hundred thousand plus value though that money was not admitted to he was not ever held accountable in terms of his the factual basis for any money beyond the six thousand therefore we feel that stuff that we fit directly under hi is instruction that for the remaining six hundred thousand plus total loss figure the height in clear and convincing standard was required that said even if the court were to disagree and now i'll transition in less the court has questions about the standard of proof not only question three more question is this correct my understanding is that your client has thousand dollars and in i can in the the complicate the calculations get a little bit confusing but we can i can point the court to a peach thirty two of the opening  to lay those calculations out deriving from the six thousand dollars i go point by point through the guidelines calculations so i guess i'm unclear how you're lining it up with the ninth circuit is we're going to look at we're going to divide the losses into two categories the odds of conviction relevant conduct in this case counts of conviction the three counts have very small dollar amounts they lead to a grand total of  thousand and forty five dollars mr igbo new go was held responsible for not six thousand and forty five dollars under the relevant conduct under one b one analysis the district court held them for accountable for over six hundred thousand stronger highness everything beyond that initial six thousand from the three counts of conviction so the remaining six hundred plus thousand to make that determination to hold mr it going to go responsible for the vast  amount whatever that is you know hundred fold increase that would have been a clear and convincing standard under how confused by your argument today because you're not up here on appeal for the first time so on the last go for the first time no your honor i respect but i'm not arguing as if it's up here for the first time and my colleague i think does a good job in her brief of merging the issues and doing my best to separate them the actual amount that is the dollar figure was not sent back and i agree and we're not contesting the dollar figure the dollar figure doesn't matter it only matters to the extent he was held responsible for it so that was the t so you're argument is that the relevant conduct which in this case i assume would be the district judges findings about the fact that they live in the same house the two perpetrators live the same house and i give you a sort of the answer is really sort of i hate to end it to not answer yes or no but the the answer is truly sort of and this is candidly this is a this this is the problem with relevant conduct to begin with this gets confusing so our first argument is under high miss to hold him responsible and i see on him getting close to my three minutes here but under high miss to hold him responsible for any of the losses above the six hundred thousand dollars not to i agree with you that is what it is the spreadsheet says what it says in the court previously found that number responsible but the number is only one part you know the more salient part is not how much but is he responsible for that we can agree that mr cyril the codefendant he's responsible for that but the question is is mr it going ugo responsible for that over and above the six thousand now the second part going back scheme the lottery scheme should be counted as relevant conduct going through all of the evidence that smith recounted why isn't that enough right and in this context i think it's a little bit like when we learned about multiplying any number by zero right any number multiplied by zero zero is that's my last math reference speculation is the same thing right anything's speculation multiplied by speculation doesn't get you evidence that's reliable it doesn't get you even per pondering said the evidence speculation time speculation just equal speculation and that's what we have here such a thing as circumstantial evidence i mean it's really really difficult to conceive of the fact that when you look at the similarity of the scheme the fact that the computers were in the home the fact that they were involved with each other the cold defendant's lawyer or the coconspirator said that they operated the lottery scheme with others of the number of contacts between your client and the others it's hard to conceive that he did know about the lottery scheme as well well let me i understand that point but let me tell you that there's equally i would say if not more circumstantial evidence going the other way because we know that evidence is not just affirmative evidence evidence is also a lack of evidence so i would like to talk a little bit about the lack of that you are serving your time  i'd like to answer judge what was going on up to you question and i mean i don't think if i sat down right now i'd go ahead the lack of evidence what's your best case so let's talk about the lack of evidence here so first of all that he lived in the house we w then imagine that if he was involved in this lottery scheme not just the secret shopper there'd be some affirmative evidence of it something found in his room maybe the postal inspector could tie him to a computer that had that had lottery scheme evidence on it there's nothing there's no dominion and control i think not i thought that on the computers there was evidence of both schemes and both parties having used it no your honor backs the key and i'm glad you brought it up because there because this all happened in canada the canadian authorities were able to essentially link cyril to pursue one computer and then my friend made the argument that well if searle's going to one shouldn't we just assume that mr knew go use the other well no because there's no evidence of it that we need evidence this court has made clear that the in the mistake with his use case in our brief preponderance of the evidence is a meaningful standard it means that you have to be convinced that of the fact of the proposition and the fact that you live with somebody well that's guilt by proximity guilt by association why if that the question the court would ask is why w go so passionately and repeatedly deny any involvement in the lottery scheme why would the first prosecutor not my friend here go out of her way to tell the district court we're not putting anything in a factual basis about the lottery scheme why would the district court  ends on behalf of the united states i have listened to my learned opponents arguments and despite all the issues raised for the court today there is really only one critical question that matters to the resolution of this appeal and that is was the district court required to use a different standard than it did when it found defendant was responsible for the lottery scam losses as relevant conduct the answer is no for two reasons first of all the conduct at issue in this case was part of one common scheme and i'll explain why and second the losses from the lottery part of the scheme only added to levels and as my friend has agreed that never requires a clear and convincing evidence standard now even though defended did not plead guilty to the lottery part of the scheme it was appropriate for the court to find it as relevant conduct the secret shopper pitch and the lottery pitch were two fraudulent devices used in the same scheme to defraud the only difference between the conduct that the defendant pled to and the relevant conduct was the initial pitch in every other way it's clear they were part of the same scheme same actors same timeframe forty four ice show the district court found that in quote two computers and little if you are which contained information and documents that reflect used by those persons of those computers to perpetrate the lotto of the shopper scheme was the judge referring to the defendant in this case and the other non and in those cases i correct yes your honor and i can i can describe what was in front of the court  search warrant on november twenty fifth two thousand in two thousand and nine at seven thirty in the morning what they found was defendant and serial in the house and up stairs at the top of the stairs there was an open area that was essentially set up as a boiler room and in that area they found two laptop computers a u s b drive a scanner a shredder a black and white printer a color printer rubber gloves paper and sixteen hundred pages of check stock in various colors now on one of the printer trays there were ninety seven secret shopper letters addressed to potential victims on the other printer tray were ninety seven fraudulent checks addressed to those same victims on the floor where the  package the secret shopper letters and the checks to be sent out on one of the u s b drives there was the scan of the original victim's check that had been fraudulent altered to create these ninety seven checks and in a box under the oven there was a lottery scam letter inside one of the envelopes and a set of envelopes now the computers are very important here i agree with you and on those computers the only two laptops in this boiler room area where we know the defendants were operating together on these schemes there was one computer that could be linked to serial by ip logons to his email and on that computer there was a lead list with names and contact information for victims there was a news article about con artists using money gram and there was information that she was a secret shopper victim the same victim that had actually been noticed in the trash hole from november twelfth november nineteenth on the other computer which the heart means the reasonable inference that this would be the computer defendant was using as theirs to front cers into computers there were numerous files related to forge checks they were lead lists of individuals in the united states there is secret shopper form letters and the customer service survey documents that the secret shoppers were told to fill out after wiring their money from understanding correctly that there was evidence of both schemes on both computers the evidence was that one computer was linked to serial by ip logon and they were evidence of you know secret shopper scheme on that computer and the other computer which the reasonable inference is was the computer that didn't defend it would be using had evidence not only of a secret shopper scheme but also it had three lottery scam letters including one from august two thousand and seventeen the victim they'd one hundred twenty thousand dollars and that this was a check for thirty eight hundred dollars if they could send it could be used to wire money for their certificate of clearance and their nonresident transit feet so there's evidence of both the secret of the computers no your honor and the rubber gloves were going to be even reason why there was not but again the only difference between these so for the defendant to prevail essentially it's the theory that what ties them together is the secret shopper scheme but unbeknownst to the defendant or at least without his participation the coconspirators operated the lottery scheme alone exactly and i think the court found very persuasive the fact that the other coast schemers in this operation had pled guilty to both pitches so cyril pled guilty to both the secret shopper and the lottery s terms of the money grants from transactions that he picked up were earlier and far more frequent he began picking up money gram transactions from coast here as here in january two thousand and eight whereas cyril's first pick up was in november two thousand and eight defendant picked up fifty five money gram transactions from as your serial picked up seven defendant talked to as your one hundred sixty six times on the phone serial talked to ninety seven so it can't be argued that  hundred sixty six times in two thousand and eight i think by phone yeah i think that the court is clear that that's something that was considered in the finding that this was relevant conduct and again these schemes the only different was difference was the pitch the words coming out of the fraudsters mouth were either congratulations you've won the lottery or congratulations you've been selected to be a secret shopper everyone received the letter everyone was told to call a claim representative everyone was told when they called to wire money everyone's money was intercepted by a close the merger and then forwarded on to defend in codefendant it's the only difference was the pitch here and the difference between the contact t defendant plan to which was the scheme and the relevant conduct that that's all there was was the initial pitch so i think given all of the evidence that the court had in front of it it was not a logical it was not implausible and it was not without support in the record to find that this was relevant conduct i don't know if i can transition to the argument that highness controls here i strongly disagree highness is a very different case and as your hon quoting he was not charged with a conspiracy nor did he admit in his plea agreement that he had participated in a scheme to defraud involving multiple transactions that's a twelve ninety one in the highest but here that's exactly what this defendant did he had a factual basis which spanned january two thousand and seven to november two thousand and nine the factual basis is written as a continuing course of conduct it says defendant would do this defendant would do that in many instances this in some instances in virtually every instance is that it's clear that the court asked the defendant four times in the change of plea to affirm that he accepted the allegations in the factual basis it was interpreted for him there was a recess there was consultation with stand by counsel in conclusion defendant has had two bites of the apple this is the fair result this is the just result this below guideline sentence twice imposed is the result of a correct guidelines calculation and a sentence that was imposed to equalize this defendant with co defendants cyril and a sense that the court expressly said did not adequately capture the harm to the victims i think you are out of ok thanks to both counsel we appreciate your excellent arguments