a lower court erred by introducing large quantum of evidence under the guise that it was intrinsic evidence when in fact it was not the charge conspiracy charged mr otoh with being a part of a convenience check theft scheme whereby a various groups of people would steal mail from mailboxes and then get student accounts from students at local universities and deposit the stolen checks and process them through those accounts this  conspiracy was alleged to occur between march of two thousand and seven and september of two thousand and nine the government then proceeded to introduce evidence that related to material that was seized from mr a toy his backpack upon his arrest in late two thousand and ten this evidence included images of checks on a laptop and at which point to the creation of counterfeit checks it had nothing to do with the m o of the original charge conspiracy it did not share to any appreciable extent the same coconspirators as were involved in the original conspiracy and you know again it was eighteen months later in in runners as well as this woman tommy who was at the center of the thing had fallen away by this time and were not involved the only other indication at all that there was a similar coconspirator was a call coming in from some of them sick who was introduced in one line of testimony by one coconspirators being involved in his involvement was never fleshed out secondly i argue that the modus operandi is is not the same getting it is a is a switch in time and it is a switch in scheme  fact the government argued on appeal although not below that it was somehow less risky to work through a bank employee in fact it's not because of course by the time that type that type of activity involves individual victims having money removed from their individual accounts whereas the convenience check scheme all the money came directly from bank of america so i don't think that it isn't any way less risky  a lack of knowledge of what i mean his disappearance really was more along the lines of it you know it wasn't me and i wasn't there and i didn't do it and i think that you know mcbride sort of said it's you know in intent is an issue in every case this isn't some sort of really specific type of intent that he's showing he knows because he's involved in this leader activity is simply propensity that if he was involved in some nefarious activity involving bank of america at a later time then he must have been involved in this earlier time the government needed to prove through the case that it put on which was the three runners that this was his picture at the bank and he was depositing these checks the fact that eighteen months later he did something else involving bank of america potentially does not mean he was the person in the car with these women transacted these checks it's not a it's not a case of some sort of you know i didn't realize that i was using someone else's account and later i am shown to have knowingly done that it's simply it's just a propensity argument it's not clear to me that the lower court even really made an alternative for a four ruling i don't believe the jury was instructed it was  four or four and again the in order for it to be for a for evidence the modus operandi would have to be something closer you know to a to a signature and these two schemes were really not come in in our opinion the difference in the type of checks and the type of scheme that was being conducted is far more different than say the crack and the cocaine at issue in mcbride i mean this is stealing convenience check which the which the person never even knows that they received they probably never even knew that a withdraw was made against their account the credit card company probably backed it out right away whereas a counterfeit check targets that individual person involves bank employees and any bank fraud is going to involve money transacting progeny through accounts we would argue that that's not sufficient to make these eighteen month apart different course of conduct different coconspirators to be either intrinsic or four for b and again the the the lower court did not admit it as for for b she admitted it as intrinsic it did not fall within you may however the jury was not instructed not to consider this evidence is propensity evidence i don't believe and you know it's a it's a it's a different consideration of how they should've applied that proof to the to the case it i mean i can hear that the court thinks that the modus operandi is the same and that the victim is the same and i can simply move on to my second  argument which has to do with the application of the identity theft statute and the corresponding two year mandatory minimum sentence to the use of an identity voluntarily provided and paid for and coconspirator it was our argument that that is not the intended target of an identity theft mandatory additional to your sentence as the suppose a victim was a coconspirator participant in the crime has the fourth circuit recently found in helton a criminal statute should not be applied to punish conduct of the person could not reasonably understand to be prescribed and in fact it doesn't appear from reading the legislative history that congress intended a coconspirator to be considered a victim resulting in a two year additional mandatory sentence it also appears from the supreme court's characterization of the government's position in florence figaro that the government did not understand that statute to prohibit the use consenting use compensated use of a  identity when they said the government to find the statutes purpose as quote providing enhanced protection for individuals whose identifying information is used to facilitate the commission of crimes that is not my understand the government generally provides a lot of legal protection for in crimes by sentencing people to additional two year mandatory minimum sentences and dition a case recently came down the judge can authored in a case called words in which the instruction given was not at issue but the instruction given was that to act without lawful authority means to have transferred to use the means of identification of another person people's information lawfully for a purpose a and unlawfully used it for purpose b and so these actually were because those identities were given with permission from the identity holders and they were legitimately victimized when their identities were used for an improper purpose it was not as here where a coconspirator said here i'm giving you my i am selling you my information to use in your scheme i'm therefore a coconspirator i'm helping you i'm participating and i'm that act is now and mr to an additional two years the indications all are that the that the of that statute was to protect people who suffered from having their identity stolen and having to go through all the you know the things that go with that in clearing one's name in and having to restore your credit and all of these things none of well this this story the indication is that when congress created the statute they intended the without lawful authority language to imply a victim in fact hilton suggests that there is supposed to be a victim it said the statute leaves us to speculate as to the class of victim meant to be protected by the statute and the supreme court in florence figaro said that  figaro it would have come out a different way because it would then if the if the the crime the sought to be addressed by this aggravated sentence is simply that a crime is made worse by the use of someone else's identity it wouldn't matter whether i'm sorry to channel ten today it wouldn't matter whether i'm sorry i lost my train of thought but it would matter whether the person knew that it was a idea of a real person or not a real person if the crime to be target was the use of a have transfer or use the means of magic the dedication with of another person without the person's consent or knowledge had mr to have been tried in the what's court he would have been acquitted don't know but that because i know the words court didn't quote just what i got it was not it was not intended to punish somebody for an extra two years by using the identity of a coconspirator who is not harmed or who volunteers for his own harm or who by his action good morning or honors may please the court robert her on behalf united states in this case a jury convicted the defendant of membership in a well orchestrated scheme that exploited weaknesses in the united states postal system in the banking system to line his pockets w and specifically the evidence show that the defendant and his cohorts stole mail from residential mailboxes in effluent neighborhoods pulled credit card convenience checks from the mail that they stole deposited those stolen checks into the bank accounts of college students  recruited to join the scheme and then quickly withdrew the stolen funds from those student accounts before the bank of america where the people whose mail is been stolen were any wiser chief judge has now as evidence or rulings and conclusions at sentencing are proper and the government's admits that this court should affirm all spend of just one moment on the first argument the misconduct spent some time on and that is the question as to whether the evidence was properly admitted as intrinsic evidence or alternatively appendix two thirty six through two thirty seven i want to move to the second argument the ms khan addressed and that's the appropriate reach of ten twenty eight big and i do want to address the woods case that was the subject of my friend ms const when a j letter from the woods case i submit is something of a puzzle in that it does at least appear to at least superficially address jury instructions that address the scope of the ten twenty eight a statute but i would submit that the what decision is being read a little bit broadly  decision she would have at least that decision would have at least cited were discussed at some length nor to judge cain's opinion in the woods case cite any of the other opinions from this court's sister circuits that have squarely addressed the question as to whether or not ten twenty eight  includes assist in a misappropriation element and those are opinions from the first third sixth eighth and eleven circuits all of those decisions out of this court sr circuits squarely rejected the proposition that ten twenty eight includes an element of misappropriation and again with respect i submit that had judge keenan intended and the panel intended for the woods opinion to have departed from the opinions of all of its sister circuits and established itself as the lone outlier on this issue there would have been some more detailed analysis and lengthy analysis a bit in that opinion i do want to spend some time now on the third argument presented in this con's brief and that is the issue of whether or not chief judge has now appropriately and hance the base offense level sentencing on the basis of the number of victims involved in the offense and i do want to spend the bulk of my time on this because it's an issue that regrettably was not present in the government's response brief but it was raised in i believe a footnote at the last page of the defendant's reply brief and judge a g noted that earlier that this court may affirm the holding of the district court on any basis that's fairly presented in the record and the government's admits that there are two alternative bases here alternatives to the district that's correct your honor and and the bases that was last winter that's correct so i apologize judge as you know i understand there is a circuit split on that issue and the government's admits that we certainly don't concede the judge has now is reliance on the fact that some of the account holders here are some of the folks whose mail was stolen that they did suffer some some portion of a loss and they should be considered victims of the first prong of section two be one point one's definition of victim the government does recognize though that that in light of the circuit split is probably of much tougher row to hoe then these alternative grounds that rely on the commentary section to be one point one that expand the definition of victim in cases do believe that chief judge has now is rationale and the basis on which he relied did fall on one side of the circuit split specifically i believe part of the rationale was she looked at the evidence that was presented with respect to the folks who'd had their mail stone and it had stolen credit card to means checks used by the defendant his cohorts and said those people have suffered any inconvenience they may well have been eventually reimbursed by the bank of america or by their credit card companies one of the worst things  and victims of identity theft or know other people friends and family who have been and more importantly iran or the united states sentencing commission in amending and expanding the definition of victim under section two b one point one sided exactly what your hon r simply went through it in explaining its reason for expanding the victim definitions section to be one point one in the amendment that was affective on november first two thousand and nine the united states sentencing commission said even those who are fully reimbursed by a bank or a credit card company must often spend significant time resolving credit problems and get related issues and such lost time may not be adequately accounted for in loss calculations on the got lines  way that you to judge wilkinson and said that's why we're going to expand the definition of victim in section two b one point one and that your honor the government's admits is a rationale and a basis that supports judge chief judge has no ruling and remand is not necessarily on this issue because the record that's before this court is replete with evidence tallying up the number of folks whose means of identification were on lawfully used and without willful forty for example at page one ninety of the joint appendix one of the cooperating witnesses to the to testify testified that when she went to a bank in order to cash a check in order would draw some of the stolen funds that line to defend its pockets the defendant the defendant himself gave mr hess fake account numbers names and checks bearing the names of other people as the number of victims specifically most test also then went on to say this is a page one eighty nine of joint appendix that she made twenty separate visits to banks to deposit or withdrawal and that's just that's totally up a number of times that's one witness one person that participate in this conspiracy and she said that she went to banks twenty times at the behest of the different malea foerster she was the bank insider who was bribed to provide account information to members of the conspiracy miss forster said that in one session and this is page two sixty nine of the joint appendix in one session when she logged on of the bank of america database and pull down account information to give to members of the conspiracy in that one session she accessed fifteen account profiles makita to farah another cooperating witness who testified at trial about a similar role that she had she gave similar testimony about the number of times and the number of victims that were afflicted by this so the record is replete with evidence that supports this basis for affirmative judge has no sense in hansen and the government's admits that that would be a proper way to go for this court to decide the issue with respect to the mail theft a different mission the record also amply supports the fact that this is a case in which the united states mail was taken from residential mailboxes remain on this point is also not necessary because the record contains ample evidence that at least fifty persons had their mail stolen by the defendant in his coconspirators for example pages ninety five to ninety seven the join elias another cooperator says that she conducted thirty to forty transactions with checks stolen from the mail that's thirty to forty done by one member of the conspiracy ms elias also testified that when she went on these car trips to drive through neighborhoods have someone lean out the window and steal mail out of someone's mailbox she saw a trash bag in the front seat of the car full of stolen mail and that was only on one mission ms to z to to farah at page three fair also said that she lent her court to other members of the conspiracy page join page three thirty seven the joint appendix she lent her car to other members of the conspiracy ten different times to go on these male retrieval missions that's what members of the conspiracy called so again the government's admits that on this alternative rationale the definition of victim as those whose mail has been taken the government's admits that remain is not necessary in the record contains more than enough evidence to affirm chief judge sentencing advancement in terms thank your honor with regard to the number of victims guideline and handsome and like to point out first that the two guidelines that the government has just been discussing the definitions of victims were not applied by the lower court not raised by the government in the lower court not  prefer the government for this court if the it seems to me that the government simply want to start doing some supplemental briefing via twenty eight j letters the applicability of those definitions of victims have not been addressed by mr transactions that he was referring to to even be attributable to mr toyah to satisfy as testified that she went to bank to withdraw money on about twenty occasions of those or two i was present for four or five of the thirty to forty transactions alliance conducted in two thousand and eight she got checks a few times from a toy and no relationship between those trends any other transaction that they needed a mystery to it was a wrist stablished i with regard to the victim and handsome and that was applied by the lower court i do believe that there really is a circuit split j g i believe that the authority is squarely on our side that the way that the lower court interpreted victim was incorrect there has to be an actual cuny ery loss the hassle that has gone through does not count under er or or the by a while with that victim i believe in this to penny in case they were talking about skimming devices which actually involved debit cards and that is an actual cash withdrawal from your account now that definition definition may arguably apply to the class of victims from our extrinsic evidence in which the counterfeit checks were drawn on accounts and money actually did come out and the government only presented evidence of one of those people that had to spend time and money and and actually had money come out of their account the convenience check scheme was charges made to credit cards and there's no evidence that the cardholder was never build or paid those debts before the  a credit card debt that is never charged or paid by the consumer would qualify as an actual loss so even under to penny and you know there's no authority for the lower court to find that the victims of the credit card scheme were victims government if if we're going to start and recounting the victims because for example when you look at their chart their victim their victim is listed they appear to be married there are some victims here that appear twice and if we're going to start calling considering it as i'm saying i believe that we would need to be able to argue whether the theft of a community is theft of an identity we'd have to count how many victims that applies to of the ones that th significantly fewer than the other seventy eight entries here and some of these are the same people some of these appear to be i mean for example in entries thirty two through thirty five that's the same person entries thirty seven through thirty nine that's the same person some of those the lower court found were forseeable to mr two and some not you know why i put a footnote in i did and i got these guidelines existed the government didn't the