errors on appeal yes but ultimately this is a one witness case where several of the district courts errors impaired mr savages ability to impeach the witness's testimony and hinder the journey's ability to properly assess her credibility further the district court erred in applying several sentencing and hansen's that were not supported by this court's precedent the record or were not added adequately articulated to enable this court to conduct a need for review unless your honour's have a preference i'll be begin by discussing  district court judge the government's required disclosures under brady and jenks and then our pete proceed to amount of loss and other sentencing concern it is simply not the case as as the government argues that the prosecutors notes were not reviewable in camera nor are we arguing that the prosecutor's notes are always subject to review instead in this case this district court strong mr savages defense by failing to review the notes in camera when they were the only memorialization of the government's four meetings with its critical witness that occurred over the course of months and years in what is essentially a one witness case and where the government and knitted that there were inconsistencies all the way through her story mr savage met and exceeded this court government's possession to which he did not have access and the government admitted again that there were inconsistencies all the way through the witnesses testimony but it did not provide a formal report  how do we know these groups are on this record were we argue that because the government never represented that the notes did not contain substantially court held that the it the defendant had made a sufficient found i had laid a sufficient foundation for potential jencks material for one document where he identified that single document and relating it to the testimony the witness we don't know what was in the notes in question because mr savage had no ability to you know further in the u s b smith this court did review the prosecutor's notes for else mr savage could have possibly made a further showing and because the government never made the representation that they did not contain substantially verbatim statements in either at trial or in its br we argued that strongly militates in mr savages favor in requiring the courts to review a camera and we don't again we don't argue that the in response to your question we would identify that the fact that the you provided disclosures consisted of army summarized statements of witness contacts said and charles over meetings that occurred years and months in the past but they contained minute details from these meetings that the government chose to disclose to the defense wanted to term and that it had been inconsistent with the statement she had a previous so the notes obviously contain substantially more information on these meetings including details such as how long the ledge first meeting lasted whether it was thirty minutes or thirty five minutes so these notes very possibly contain substantially verbatim statements given that they contain so much information that was only disclosed in bits and pieces to the defense and because no formal report was provided to the defense as is federal report was provided and the defendant identified only one document he knew existed and where the government and needed there was more material but did not make any even any representation that they didn't contain affect the loss that is the check amount of loss under the guidelines is a fairly mechanical measure used to assess the amount of loss caused by the fraud if the district courts wanted to increase the sentence based on the non harm to victims merely targeted by the fraud they could of course do so but not using the guidelines for not offs and amount of loss clearly includes amounts that are impossible or unlikely to occur but this is meant to open the door for narrow exceptions such as for a government sting operation or where the defendant just didn't have enough time to drain all the money from the account but this court has never so far expanded the definition to include amounts that were impossible because the defendants did not even have the ability to affect  to fend it had determined whether or not they had access however the argument is that the interpretation of the definition of intent a loss under the guidelines to lewd amount definition and if the court wanted to apply greater sentence because the defendants had merely been targeted the number of targeted victims then it could of course do so but it doesn't fit within the not yet seat but it didn't include amounts that the defendant had not yet even written any of the end voices for had considered submitting if there are enough for the questions i judge keenan very keenly pointing out that in this case the defendant did not get beyond mere speculation which would enable them to win in camera review and on that note i think that regard to an in camera view defense counsel and i should know this i was one of the trial counsel informs the panel's questioning but  words to be viewed on the plane plane air at the most but i will say it's a factual matter in your honor it's hard to say look in hindsight but i believe we would objected because our position is that what was provided to you since counsel at the trial no was a complete set of all the inconsistencies that we were able to identify throughout the various statements we received  and we identified it even matters that in our view were trivial which did not get to the question of guilt or innocence which did not really impeach the witness besides some trivial amount and if you look at what we  found out three days before trial and that is she had actually gotten some benefit out of skinny that's the biggest inconsistency that that we were presented with by miscounting which we immediately turned over to as we always try we're being consistent with our obligations under brady our obligations and i'll set aside jinx because i don't think jinx applies here at all it doesn't apply because it's just keenan pointed out there was sentence in light of that first of all there were no such reports what we had were counsel's notes that were taken in preparation for trial each time we met miscounted it was just before trial she was of course locked up in connecticut and we had to wait on the marshal service to get her to to us and that didn't occur right until right before trial we did have one meeting by video conference but in terms of a particular request that's just not  a it was it was a broad based fishing expedition what was provided to defense counsel defense counsel made much of the language used in our mothers in that these were statements from  potentially impeaching or that as it's called and that's what was provided in our letters to defense counsel and they have not made a showing that it that that one they asked for in came review or to that any information in our notes which is different from the information that was were for guards to the sentencing issues i was somewhat perplexed by the argument on the law so now i think the rule is pretty identified on calls during trial by two witnesses called into the bank and then took over the accounts ordered checks and then they wrote checks in order to drain the accounts now the actual loss in this case was just over thirty six thousand dollars and that is because it's one of the victims they were able to successfully take over the account and then write checks cash them in train the account they joined into the amount thirty six thousand dollars miss sylvia lloyd he testified at trial she was the challenger fraud person at the bank and she talked about the counter measures that the bank employed in order to stop the conspirators including the defendant attempted to drain each of these accounts and that's the amount that was was put forth judge judge russell sat over two trials he sat over the county trial he also presided over the savage trial and what the give the government did in an effort to be reasonable although in our subsequent investigation after misconduct a strong we identified additional accounts that she had access and passing information over to coconspirators there actually two additional accounts which would have added  laws is even a close one if you look at the plain language of the rule and after cation i don't know if the court is interested any in any of the other i think there's something other issues that were released i'm interested in the sophisticated means just means to accounts and impersonate the account holders i think you know if you look at a generic bank fraud in that case you might present some a bad check or you might present some simply of false identification in order to cash a check or you you i think this is so far beyond what it what a generic fraud might look like in this case it took extraordinary efforts by steps to conceal who he was he had i think there was a mr jag testified that mr savage on average would have four or five phones on him and he would be using those phones and he overheard the counter fraud measures at the bank and ask the judge as judge russell found that those facts constitute sophisticated means under the language provided in the and in a sense it's not on all fours been in the sense that's we're going to say did he took over the account and you know these were legitimate accounts these these were real accounts but he u every piece of the scheme has to be sophisticated but if you put all the pieces together and i think the language is that all the steps were linked together so that the defendant could perceive unexploit a case that is similar but more complex than the case before it today in the us he opposed to this court reversed where the defendant stole victim's personal identification information created a fictitious company including the employer identification number where the conspirator open to bank accounts in each victim's name and then deposited money using counterfeit checks provided allegedly by an insider official although it was a government sting operation where the defendant allegedly used five phones and had extensive forgery tools including social security cards and blank g the victims is the definition of bank fraud under thirteen or i'm sorry no they order them directly through the bank of sophisticated accounting techniques to do so and in jackson the defendant there accessed multiple different and she is as part of the fraud including he would call the banks the hotels the credit companies all to get information and then he would order various goods to hotels in different states get that sophisticated means from multi neither of those cases are relevant here relating to brady and jenks arguments if there are no further questions on sophisticated it's all that the defendant needs to here where the government has not provided a report is prove that the notes might contain some substantially forbade statements if the government wants to avoid disclosing these notes it can provide a formal report and thus the notes will be subject to review under him further the courts have a duty to determine whether whether materials contain potential ja because it is sufficiently that the foundation is sufficiently raid identifying in this case there was no substantially there was no representation that a substantially verbatim