rx me elsewhere and of course feel free to do that i'll start with the two sentencing issues there are two that remain contested restitution is now uncontested the first is the reliance on improper factors to deny acceptance of responsibility and the second is making a finding of loss caused by the fraud based soley on the bankruptcy claim i'll start with the second of those unless again the court wants to direct me somewhere else problem here what's striking is the government and the court completely brushed past the question of causation the evidence of loss which was prevented presented for sentencing was simply the loss in the bankruptcy what was not presented was how much of the loan was a result of the fraud that was therefore lost in the bankruptcy or whether the bankruptcy was caused by the fr defense made a very strong argument that this was basically a small business the grew too fast and that was the reason for the bankruptcy and can i just jump in and ask please i don't have a very hazy grasp of how the loss all played out but would a theory would a viable theory here be simply that early on in this lending relationship i don't know exactly when your client started falsifying or submitting fraudulent documents to the bank but is the theory that early on had had the truth been revealed to us we would have cut off our lending relationship altogether with this guy and therefore whatever was outstanding from the time the fraud started till the bankruptcy all of that all of those losses are in fact attributable to his fraudulent scheme because we would never have had any outstanding loans with him to be and we never would have loaded anything about for the price if there had been evidence of that and i got to be clear here i'm not saying it would be impossible to make a finding what i'm saying is there needs to be a rematch and for the finding to be made because there was no evidence presented if there was evidence presented showing what your honor just described yes if there was evidence presented showing that the bankruptcy happened only because yes but that evidence was not presented at the sentencing hearing and not found by the judge all that was looked at at the sentencing hearing was the loss in the bankruptcy and there was a the defense argued very very directly that the bankruptcy would have happened anyway and there was never any evidence that there would have been no loans at all but for the fraud well i mean i don't know i guess i seems to me a fair inference that a bank you know that's extending well actually i think if you look the only specific evidence about the fraud that was presented for sentencing purposes was basically what he pled to what he pled to was one  type of fraud in april of eighty seven and i forget whether it was the double pledging or the forged contracts there were several versions and then several types of fraud i think starting in the spring of eight so i think a fair inference from just that well is that some of this loans would have happened anyway and some wouldn't have happened but ok what i couldn't get a grasp of like when did this fraud start in terms of what your client pleaded guilty to there was there was never any evidence of that presented at the sentencing hearing with the government sensing pleadings so we don't know how much of the outstanding loans at the time the bankruptcy could like we don't know when correct and  particular the language i quote from the cases talks about a sentence being unreasonable either procedurally or substantively different courts put in different boxes if if the court relies on a finding that's without support in the record and there was no support in the record for a finding of causation here ok well then if that if the imperial loss is not sustainable on its own let's say which i think is the government's main position but to do that nonetheless clear that this law succeeded five million dollars by a pretty significant not even if we can't pay the exact dollar got to it was well in excess i mean a loss that was caused by the fraud overall losses not just imperial but to the islanders and there really is if you total all the government relied on sentencing and presented at sentencing was the total loss in the bankruptcy which has nothing to do with causation or at least there was no evidence tying it to cause ation and then the specific counts in the indictment i think i add up in my brief the specific indictment they add up to some tens of thousands of dollars not millions so i think i don't think the judge first of all the judge didn't make a finding of cause ation and second of all i don't think there was enough for him to make a finding of causation now maybe that could happen on remand i'm not i'm not arguing that the court's not entitled to have a hearing on re man and let the government present evidence but it wasn't presented here that that whole that whole  question of cause ation got sort of overlooked there was this idea that the bankruptcy was the frot i i'm worried about that when i read read the briefs but it usually issue to the district judge so that it was specifically before the judge there was your honor first of all the pre sentence report specifically raised that doubt by saying we have concerns that there is not causation of the whole bankruptcy fraud here  report yes and in the defense sentencing memorandum which is in the excerpt of record the defense strongly argued and it cited the sentencing commission's a primer it's called on loss it directly argued that there was no showing of causation tying the bankruptcy loss to the fraud and then with this when this was apparently raised as you said was did the judge did it just you judge make any comment on it the judge or the judge simply found there was a las relying on the government's totals from the bankruptcy and so no judge never did address the specific issue you have that you just can't rely on the bankruptcy court you have to find out the are much less than the very large amount that was determined and based upon which the judge made a ruling the judge simply said i find the law yeah i guess that's correct your honor implicitly the judge simply said i'm finding lost based on the government's evidence that was submitted with the about that a proxy i guess is before us and thank you there is also the acceptance of responsibility question which again i think requires three mand we're not saying a district court would have to grant acceptance of responsibility the district court listed three factors as the basis for its than alva acceptance of responsibility one of those of course was the motion to withdraw the plea which we can see could be considered but then he specifically said and the first two things actually that he listed were these first the fact that the plea was entered quote only after the court had dedicated its resources to trying what appeared to be a very complicated and long trial unquote second quote he relied on quote he put the government mr to the task of preparing the case unquote those fly right in the face of what this court has said a court can consider in denying acceptance of responsibility you can hold a defendant's exercise a constitutional rights against him as an affirmative factor and he can't i mean this isn't even exercising the rights it's not giving them up until the last day and the effect that has it it's not just the timeliness i agree that he might have doubts about the sincerity of acceptance based on last minute mess but he didn't just refer to last minute  terrible review i'm sorry undeniable review we can look at the entire record correct determine whether or not as a matter of law the district court erred in the nine acceptance of responsibility i'm sorry i'm not arguing that the district court  as a matter of law and tonight sefton's i'm arguing the district court erred us a matter of law and relying on the fact that the defendant made it prepare and made the government prepare ok so if we take away those two then i don't so i don't think you can then say well even then the court could have or would have i guess this i mean i don't i suppose you could go to harmless error though i don't know if the government's really argued harmless here but consider the fact that he well the district court could i don't think this court can do that balance i can tell review didn't i think all that the don't over review is was was it an improper factor to consider if it was an improper factor to consider then it gets remanded with directions to the district court redo the balancing without that improper factor i don't think this court sets the improper factor aside does the balloting itself that's a district  that we're reviewing the district court's decision whether or not to give a credit for acceptance of responsibility we only option is to remain and well i think says that i think basically virtually all the cases i cite in my give me your strongest case for the proposition i can't tell you which one is strongest your honor but i will give you four or so i don't want is for i want your best case for that pie can't tell you which ones best is what case supports the proposition that in reviewing the district court's decision to deny acceptance of responsibility that are only recourse is to remand it to the court do the balancing themselves without the factor they remained for the district court to redo it and reconsider it and of course here i'm arguing that there should be remained to a different district judge but that's a separate consideration now i've got three good morning me please the court ruth finkel for the united states from central just california your honor your honors i think it's important to realize that the district court had presided over this case for several years with lots of motion practice with lots of evidence presented to the to the court about defendant's conduct the attorney who represented defendant at sentencing had come into the case just a few months before had not been involved during this extensive motion practice and so would not have and so that the government and the court didn't just brush by his argument that there was no course at causation it was there was ample evidence in the record to show the defendant was the leader of a very extensive years a long scheme to defraud that was essentially a ponzi scheme with fancy window dressing and the window dressing being five separate companies twenty eight locations locations throughout california do you agree with your with opposing counsel that there really wasn't the kind of evidence that would support the view that well they basically they would have cut off the money relationship way back when and so therefore it is reasonable to assume that all of the losses that they were left stuck holding the bag for are directly attributable to the fraud your points as well know that you guys never put on evidence that would make out that showing well there was actually if you if the court looks on the record the government excerpts of record between one fifty and twelve in the government's excerpt of record and then also you can hear the the motion in limine a argument which begins at government excerpt a record of two fourteen which was the friday before defendant pled guilty and there's extensive or eight different ways that the business was permeated so that evidence was in the record for the court ok hang on a sec i guess i started out by asking about the last two imperial specifically right because that's all to me with the district court pegged the number t correct so there again that's in the motion in limine a hearing imperial had bought a huge portfolio of loans approximately the year before many of them i think of and come from union bank which also had been defrauded imperial started to realize in the spring and early summer of one nine hundred eighty eight just how extensive the fraud was and executives from n p r and this is this is in these declarations and in the f b i reports imperial executives come from san diego meet with the defendant meet with his c f o and start questioning him and auditing because they're afraid there's fraud they actually only discovered at that time a small portion defendant then through the month of june and july he tries to they were trying to work out a deal with the defendant and then ultimately he he couldn't they started calling him alone and his business is collapse so this all happened in a very compressed timeframe between the end of june and early august so before he left town he hired an attorney to file for bankruptcy so this was late late july because imperial was calling in the loan at that point they were owed about one hundred seventy one million and then the company's collapse in bankruptcy but they collapsed in bankruptcy because imperial was concerned about the overwhelming fraud and was calling in the law so the causation the evidence of the causation is in the record it's just that it's the court had presided over such an extensive period of time in this case that that evidence was there i did not point back to that specific evidence i made the arguments about the route of the sentence why then did the p s r basically just say look this is just too weird nobody's ever going to figure this out he doesn't sound like it was nearly as clear as what you just well it was and that was surprising we tried to work this out and file their objections to the p s r you know the original p s r we had given the banks the trustee thirteen thousand pages of claims data and the summary spreadsheets from the bankruptcy court my age and i went to the national archives and got all of these records and the evidence was there and there were summary chart showing the individual investor claims the bank claims when they were when the trustee agreed to them the support for the individual investors and we have a representative sample and in the record but the visual investor claims for example would be supported by a stock certificate mostly signed by the defendant and then was supported the and this is what these people filed in the bankruptcy after he fled after the defendant fled they would have copies of the checks that they w it and the stock certificate with the same amount of money signed by the defendant why the probation officer didn't go into that i don't know but we definitely we objected we called them we them they said just file your objections we're not going to speak to you about it so and also this is after the pre sentence report came out and you objected to the pre sentence report on the basis of their challenge that there was insufficient connection exactly and i just reported what i've read with the government was that discussed during the sentencing the object the objection i'm sure it was and i think i know that i said both in writing and at the hearing and pretty sure that i said i mentioned again that we've got thirteen thousand pages of claims data from the bankruptcy court from the national archives because numbers insignias we have to have a connection here because we're charging the person i don't have any sympathy for this  but we do have to follow the rules that we have and how did the district court agree with the government on what basis did the district court find that there was a connection to this entire group of  documentation submitted with the motions in limine in the court had refute all of that information and part of that had to do well the court reviewed all the information and made necessary determinations about how the fraud had occurred and defendant's role in that fraud and making certain rulings as to evidence that the government could introduce and so the court already had that information in the court reviewed what were sensually summary charts the government submitted claims and the individual investor claims and then you see if i understand correctly the district court had at that time a spreadsheet the referred back to specific records that the government had produced to justify the amou on and that was that that was submitted i believe with the government's objection but perhaps what they got the government sense into this and so the spread sheet was there a representative sampling of what the individual investor claims looked like as well as court orders from the bankruptcy case and specifically the because it was trying to streamline it the government submitted a court order for the bankruptcy finding the imperial loss after the settlement to imperial from sixty seven million to thirty three point five nine in addition to that we had the claim from the f b i see which had taken over from the r t c because this is so old and the f d a sees claim was essentially a spreadsheet that set forth how much imperial so this is if you see as a receiver for imperial how much imperial was owed at the time of the bankruptcy and then various amounts that had been produced from that and frankly were probably more generous to defend it because it was reduced for things that happened after the crime but indeed but in any event just as if conservatively we went with the thirty three point five million it could have been much much higher did i hear you earlier that you think there is a basis in the record to conclude that the bankruptcy itself was directly attributable to the supporting declarations that were filed by an imperial bank executive back in one thousand nine hundred eighty eight and i'm not sure which litigation that was filed and there was a lot of civil litigation and then you will also see the interview reports with both that individual's name is frank mercer who's executive from imperial about his confrontations with the defendant and with the c f o bruce lee their confessions of the fraud in the and i guess imperial's determination in the spring of eighty eight and some are that there was massive fraud and that's why they came from san diego to los angeles to look at the books and audit they confronted bruce lee and the defendant they confessed to some of the crime not all of it and then imperial pretty much stayed there and met with them over the next three to four weeks to try to work something out an additional contract with defendant and his company's it was signed by defendant personally was entered into a think approximately july twenty fifth of one nine hundred eighty eight and that was the point at which defendant decided to file for bankruptcy and he hired with louis and we have a portions of again how the ground rules for group of companies was operating under the imperial line of credit which at that point was about one hundred seventy one million dollars and started making some changes as to how any money was collected from borrowers because they were also served was servicing loans on behalf of the imperial harlan's among other things and using that money to front payments to make it look like the customers  so imperial was imposing lots of different requirements because they actually wanted to call in the loan but over late june early july tried to work out requirements with  grand will sure and then got the defendant to execute another dream and i can't remember the details but it they decided to call in line the entire line of credit and grand  hundred eighty eight depending on the financial institution but the bruce lee said and this is sort of a significant fact is that at the time of the collapse of grand will sure group of companies were fronting approximately four million dollars a month in carlin's for their customers who were in default which is a significant material fact for both bank fraud and false statements   i think the court was quite clear in saying that one of several that's not the only reason but one of several reasons i'm offering here is that he basically waited till the last minute and put me and you wait through all this hassle and analysis of whether or not you were timely in making your plea because the guidelines and especially the one nine hundred eighty seven guidelines had a number of factors to consider which included timeliness you know how timely were you when you came forward and admitted your  and so and i think what the court was what the court was referring to is we had actually because it was so complex to put this case together and we got into the eve of trial at least once i had set a deadline about four months before the trial to resolve the case of the defendant and not for the first time because this has been going on for years and that deadline came and went and then only at the last minute and just over the period of time the last few days defendant wanted to  get rid of this council he wanted to represent himself and he didn't want to represent himself and then he wanted to plead guilty and so i think what the court was were really referring to there was timeliness not his exercise of this constitutional rights because there had been you know there been attempts by the parties to resolve it in two minutes resources had been put into getting it ready and so the defendants the defendants  it's his plea was not timely and i think this was one of the many things the court said and what the government also said as we had been preparing there were we had the most amazing thing about this case is that the people involved in it at the time both his employees and the six cooperators that i prepped for trial three years ago and the bank many of the bankers they were all in their early thirty's at the time of the crime so there we were thirty's years later  preparing this case again and these employees were devastated by having to sit there and they did their cooperation was over but they sat and they met with the government many many times to prepare this case for trial and they had been devastated  when he left them behind and they were all of the defendants were filipino he was considered a rock star in the filipino community and and that's those are not my words and he just devastated these people once again because the filipino press was writing about this they had put it behind them twenty five years before and they were embarrassed because a lot of people they were now interacting with twenty five years later didn't know about this so the court's comments were not about the defendant's exercise this constitutional rights it was about whether or not he was timely and his guilty plea and the resources that had gone into preparing this case because as i'm sure you can imagine that was not an easy task and we had been to the ev we talk about other things as well but to get to your honor's question above in case i think a better case actually cortez also tends to say it united states versus a guy ten to sixty five f thirty eight thirty seven it's page eight forty free it is i don't i don't know for sure if that specific page site is but that's the page that says because the factual question of whether or cho a guy ten has accepted x responsibilities should be decided in the first instance by the honors in both addressing the except it's a responsibility question and what my opposing counsel just proffered and the last question to keep one of the disadvantages of a trial counsel arguing the appeal is it's easy to start putting things out i think much of what was said is not what was in the record before the district court so please go back and look at the record much of what was just said about acceptance or sponsibility i think is outside the record i think very sincerely the bottom line is the district court specifically listed three factors the way i count em and two those factors were improper under this court's case law on wass a couple points  the i think opposing counsel is for into a spreadsheet i wasn't clear on whether she was saying there was a spread sheet that had anything any evidence of causation in it if she was i sincerely believe there is not anything like that in the record certainly not an excerpt of record or government excerpt of record before the court so please look back at those documents very carefully there are these interview reports but those were not what the district court relied on  that was those were interview reports that were presented in a written opposition to a written motion in limine a year and a half before sentencing they were not referred to at all at sentencing either in the pleadings or the world argument  the pleadings that the government filed where pleadings said docket document number one thirty two and document number one seventy in the district court record those are in full i believe in full and the excerpt of record and the district court perhaps most importantly i suppose the district court could have relied on something that remembered an interview reports from a year and a half early and even those interview reports are not crystal clear about causation but the district court said it was relying on quote and this is an excerpt of record forty nine document number one thirty two and document number one seventy it was not relying on whatever it might have been gleaned from these interview reports that were attached to  opposition to a motion in limine a a year and a half earlier what about your opponents argument that the fraud really did present the taint the bankruptcy well that's the argument she's going to want to make it to remain and not sensing the problem is it wasn't an argument that they presented evidence about at sentencing and it wasn't an argument the judge addressed at sentencing or ruled on at sentencing date but surely the district court was aware of the facts that your opponent just laid out which is that the bankruptcy was precipitated by imperials calling of the line of credit which and their decision to do that was because they discovered this whole company was written with if he interpreted those interview reports the way the government wants him to it and he specifically said what he relied on your honor and this is why we know he wasn't looking at causation he said he relied on a document number one thirty two and document number one seventy and all those for the sentencing pleadings and all those pleadings presented was evidence about the total bankruptcy loss nothing at all about causation on the steps of responsibility courtin both courting and relied on the fact that the only reason given for the denial of the symptoms of responsibility were those linked to the exercise constitutional right so of course we don't have that here we have reasons other than dan the comments that you are relying upon but it may not be mad the reduction because of the choice to exercise constitutional right in spite of other manifestations of sincere contrition so there was a condition on that that language that you know there were other men there were other the facts of this case if i could just real quickly you want if there was other affirmative evidence of acceptance responsibility here not not just what he said it sends same but probably most important a train probation officer who interviewed him for the probation report found in the interview that he quote continued to accept responsibility unquote that's in the p s r agenda because if your court said the first time he expressed remorse was at the time of the sentencing and also the district court the he all he played on the eve of trial and tried to withdraw his guilty plea so there were other things in the record the point i'm making is that the cases that you're cited the district court only relied upon the fact of exercise of constitutional rights to deny the acceptance of responsibility and that's not true and i'm not certain of that era but i think there's other cases that say you can't consider something against the defendant as a factor so i don't