[00:00:01] Speaker 03:
Good morning, Your Honor.

[00:00:02] Speaker 03:
Jeff Buchella on behalf of Appellant David McIntosh.

[00:00:08] Speaker 03:
Your Honors, there are, the court is aware of the issues that have been raised in this case.

[00:00:15] Speaker 03:
I just want to start with the issue of profit loss.

[00:00:18] Speaker 03:
There are many, many reasons why this court should remand the case for resentencing.

[00:00:26] Speaker 03:
Some of them are fairly obvious.

[00:00:28] Speaker 03:
In Mr. McIntosh's case, his sentence went up approximately two and a half to three years I believe based on a loss calculation made in the district court.

[00:00:42] Speaker 03:
To begin with, the court failed to file the, failed to prepare and make findings that are clearly required under federal case law.

[00:00:55] Speaker 02:
Council, the district court said that it adopted the PSR.

[00:00:59] Speaker 02:
Is that not sufficient?

[00:01:01] Speaker 03:
Your Honor, I don't believe that is in this case.

[00:01:04] Speaker 02:
If the district court read the paragraphs in the PSR, would that be sufficient?

[00:01:09] Speaker 03:
No, Your Honor, I don't believe so.

[00:01:12] Speaker 03:
And the reason for that is the PSR didn't itself make particularized findings.

[00:01:19] Speaker 03:
As far as I'm concerned, they did not make kind of particularized findings that required

[00:01:24] Speaker 03:
to support the amount of the fraud loss.

[00:01:29] Speaker 03:
If you look at the pre-sentence report, almost every attempt to connect a victim to Mr. McIntosh is made and this only takes place in two or three places in the report.

[00:01:44] Speaker 03:
It doesn't even cover all of the victims.

[00:01:48] Speaker 03:
But the only finding that the probation department found

[00:01:53] Speaker 03:
and they used language such as the victim was contacted or used a telephone number that had some relationship to the defendant.

[00:02:10] Speaker 03:
But that's the extent of the, you know, of what the conclusions are in the report.

[00:02:17] Speaker 03:
So the question is, as a matter of law, is that sufficient?

[00:02:22] Speaker 03:
to constitute the kind of particularized findings that are required under the case law in order to find a loss.

[00:02:28] Speaker 02:
If the judge had said, gone victim by victim, said here's how much they lost and said this victim is connected to Mr. McIntosh in this way, in this case Mr. McIntosh fielded a call

[00:02:45] Speaker 02:
and actually spoke with the victim.

[00:02:48] Speaker 02:
In the next case, Mr. McIntosh never had any contact with the victim, but he supplied the telephone list that was used to contact the victim.

[00:02:58] Speaker 03:
Is that going to be sufficient?

[00:03:00] Speaker 03:
Well, if the judge made particularized findings, then we would be here and the posture of this case would be different.

[00:03:07] Speaker 03:
I would have.

[00:03:08] Speaker 02:
But that would be sufficient as a matter of law?

[00:03:12] Speaker 02:
That would not be sufficient?

[00:03:13] Speaker 03:
Well, as a matter of

[00:03:15] Speaker 03:
I would say as a matter of law, but also as a matter of the record.

[00:03:19] Speaker 03:
First of all, there's no evidence in the record that I'm aware of that indicates that Mr. McIntosh made a phone call to any of the victims.

[00:03:29] Speaker 01:
What about his admissions that he was sort of the middleman between those generating lists and then sending the list to those who were making the calls?

[00:03:40] Speaker 01:
So if the PSR included information that

[00:03:45] Speaker 01:
these victims were on the list that Mr. McIntosh forwarded to the callers, would that be sufficient?

[00:03:58] Speaker 03:
Well, I think the issue that you have there is whether or not Mr. McIntosh did those things knowingly.

[00:04:07] Speaker 04:
He's sending a list and he doesn't know what the list is being sent for, really?

[00:04:12] Speaker 03:
Well, there's a difference.

[00:04:14] Speaker 04:
May he plead guilty.

[00:04:15] Speaker 04:
We all understand that he was involved in a scam operation.

[00:04:21] Speaker 04:
His role, you can argue what it was, but knowingly I have a hard time understanding, oh, I didn't know this victim, this person was going to be a victim even though I'm pleading guilty because I'm involved in this large scale conspiracy.

[00:04:35] Speaker 03:
Well, one response to that is when you look at the record as a whole,

[00:04:42] Speaker 03:
What you really have is these lists are generated by people who are distributing so-called leads lists.

[00:04:51] Speaker 03:
Some of these lists, not all of them, but some of these lists are really analogous to the kind of leads lists that are distributed to all kinds of commercial operators out there, real estate salesmen or everybody else.

[00:05:04] Speaker 01:
But we have more than that because there's

[00:05:06] Speaker 01:
There's testimony from Mr. Malcolm identifying Mr. McIntosh as a leader, his boss, a recruiter, the person who was the closer.

[00:05:20] Speaker 01:
If a victim wasn't coming forward with money, they would forward the call to Mr. McIntosh.

[00:05:29] Speaker 01:
And I know he denies all that, but nonetheless, the testimony is there that these things occurred, which

[00:05:35] Speaker 01:
I think would be sufficient evidence to tie him to the conspiracy and to the actual mail fraud and money laundering.

[00:05:44] Speaker 03:
Your Honor, it's our belief that the requirements, the burden on the government in profit loss estimations, to make a profit loss calculation for a victim in a case like this,

[00:06:01] Speaker 03:
requires more than just finding that the defendant is guilty of a broad conspiracy.

[00:06:08] Speaker 01:
I agree with you and I think you're circling back to a stronger argument for your client.

[00:06:13] Speaker 01:
It seemed as if you were venturing into a sufficiency of the evidence argument there for a moment, which you've made.

[00:06:19] Speaker 01:
I understand you've preserved it.

[00:06:20] Speaker 01:
You've made it in your brief.

[00:06:21] Speaker 01:
But that, I think, is a different issue from whether the evidence was sufficient to tie him to all the particular victims and roughly $2.5 million in loss, whether the district court then made the appropriate findings.

[00:06:39] Speaker 03:
Right.

[00:06:42] Speaker 03:
The problem with this case, and it is somewhat analogous to the Lloyd case, but the problem with this case is the government's theory is so broad.

[00:06:54] Speaker 03:
I mean, if you're going to believe Malcolm, then there are hundreds, not hundreds, but there are thousands or tens of thousands of people in Jamaica that are involved with this kind of fraud.

[00:07:06] Speaker 03:
So let's assume for the argument that... Well, wait a minute.

[00:07:08] Speaker 01:
How did Mr. Malcolm implicate 10,000 people?

[00:07:12] Speaker 03:
I don't understand that from... Well, I don't remember the exact figure or even if he made a figure, but during his testimony, he said, in Jamaica, everybody knows about sweepstakes fraud, and I don't remember the exact number.

[00:07:32] Speaker 04:
Well, I know about sweepstakes fraud.

[00:07:34] Speaker 04:
That doesn't make me guilty of conspiracy.

[00:07:38] Speaker 04:
And we're focused here, I guess your principal argument has to do with the

[00:07:43] Speaker 04:
the calculation for each victim and nobody's talking about everybody in Jamaica being liable for all the losses suffered by all the victims.

[00:07:54] Speaker 04:
There's a focus here on, what is it, 13 or a specified number of people and you can and have quarreled with the calculation for each of them.

[00:08:04] Speaker 04:
I think there's a serious question as to how detailed the calculation by the court has to be to justify

[00:08:11] Speaker 04:
the sentence that was imposed.

[00:08:15] Speaker 04:
I'm perhaps more interested in that than this notion that everybody in Jamaica knows about the scam.

[00:08:20] Speaker 03:
Well, the only reason I was discussing the Jamaica thing is that Malcolm would have had the jury believe that there were very large numbers, I'm going to say in the range of thousands of people in Jamaica involved in this kind of fraud,

[00:08:38] Speaker 04:
But the calculation for your client isn't based on thousands of victims.

[00:08:43] Speaker 04:
It's based on a small.

[00:08:44] Speaker 03:
No, but it's very similar.

[00:08:45] Speaker 04:
Well, it's not similar.

[00:08:46] Speaker 04:
I forget whether it's 13, but that's not thousands.

[00:08:51] Speaker 03:
Okay.

[00:08:51] Speaker 04:
The number of victims is not thousands for which your client is held accountable.

[00:08:57] Speaker 03:
So for the victims that are listed in the government's brief, they list all of the victims that were not trial victims.

[00:09:08] Speaker 03:
Among those listed victims, I don't see anything in the record that supports anything at all except the implication that the probation department makes is that there's, probation department says there's some kind of connection.

[00:09:26] Speaker 03:
We don't know what that is.

[00:09:29] Speaker 03:
To say that McIntosh was responsible for everybody who received

[00:09:37] Speaker 03:
a leads list.

[00:09:39] Speaker 03:
I mean, it seems to me that violates due process and it violates the spirit of the rule.

[00:09:46] Speaker 04:
I want to make sure I understand.

[00:09:48] Speaker 04:
Everybody who received a lead, you're really talking about everybody whose name was on a lead list that he gave to somebody that led to pursuit of that victim.

[00:09:56] Speaker 04:
Why can't he be held responsible for the victims that resulted from names on his lead lists?

[00:10:04] Speaker 03:
Well,

[00:10:06] Speaker 03:
There's two reasons.

[00:10:07] Speaker 03:
Number one, I think it would violate due process.

[00:10:10] Speaker 03:
We'd be putting people in prison much longer than Mr. McIntosh or going to prison on the basis of just distributing a leads list.

[00:10:17] Speaker 04:
Well, no, if John Doe was victimized and John Doe was roped into this because John Doe's name and number and so forth were on a list distributed by your client, I'm not sure how that violates due process because without your client, John Doe doesn't get victimized.

[00:10:36] Speaker 02:
Isn't that the nature of a conspiracy?

[00:10:38] Speaker 02:
I mean, is that a co-conspirator is liable for sort of the foreseeable things of the other members of the conspiracy?

[00:10:49] Speaker 02:
Your client was convicted of conspiracy.

[00:10:52] Speaker 02:
Right.

[00:10:53] Speaker 02:
He wasn't convicted of having directly defrauded victim A. Right, right.

[00:11:01] Speaker 03:
The case law requires, as I understand it, the case law requires a particularized finding that the defendant is connected to this each specific victim, that there's reason to believe that... Well, if the name's on the list, isn't that enough?

[00:11:19] Speaker 03:
If the victim's name came from a list?

[00:11:22] Speaker 03:
We don't even know.

[00:11:23] Speaker 03:
I mean, there's so many things that are missing in the record.

[00:11:26] Speaker 03:
We don't know whether McIntosh ever opened the email with the list.

[00:11:31] Speaker 03:
They don't know whether he ever read the email with the list.

[00:11:36] Speaker 03:
We don't know if other people are... But why would that matter?

[00:11:38] Speaker 01:
Because if he admitted that he forwarded the lead list to the people who were making the calls, he doesn't have to read the hundreds of names on the list.

[00:11:48] Speaker 03:
His admissions are not tied to any particular time chronologically.

[00:11:58] Speaker 03:
Malcolm's testimony.

[00:11:58] Speaker 01:
But there is evidence.

[00:11:59] Speaker 01:
I mean, there is evidence that ties him to a particular time.

[00:12:02] Speaker 01:
He signed for the receipt of the packages of cash, I think in 2017 when he was in Hawaii.

[00:12:08] Speaker 01:
There's the email accounts that he's associated with, you know, that those have dates on them.

[00:12:15] Speaker 03:
Yes.

[00:12:16] Speaker 03:
I mean, that's correct, but Your Honor,

[00:12:18] Speaker 03:
When he signed for the packages ostensibly of money that came from NK, and he is not disputing that he's responsible for that if the court upholds his convictions, that was an incident which occurred almost five years after Malcolm's meeting.

[00:12:39] Speaker 03:
According to Malcolm's testimony, he met my client I think in 2012, and then he says, and after a time I went off on my own.

[00:12:49] Speaker 03:
And I started doing this kind of thing on my own.

[00:12:52] Speaker 03:
I got my leads directly from other people and so on and so forth.

[00:12:57] Speaker 03:
So it seems to me a little bit of a stretch to say that what somebody may have been doing in 2012, they must necessarily have been doing in 2017.

[00:13:10] Speaker 03:
In particular, when one of the named, well, Malcolm was not

[00:13:16] Speaker 03:
a named co-conspirator simply because he cooperated, but he was a co-conspirator.

[00:13:22] Speaker 03:
Malcolm essentially testified that he departed from the conspiracy, departed from working with my client and doesn't have any other dealings with my client until he claims he has dealings with my client on NK.

[00:13:46] Speaker 01:
Did you want to reserve any time for rebuttal?

[00:13:49] Speaker 03:
Yeah, let me reserve what's left of my time, a minute and 15 seconds.

[00:13:53] Speaker 03:
Thank you, Your Honor.

[00:14:02] Speaker 00:
Good morning, Your Honors.

[00:14:02] Speaker 00:
Terry Criss for the Government.

[00:14:04] Speaker 00:
May it please the Court.

[00:14:05] Speaker 00:
The district court did not clearly err in calculating the fraud loss to exceed 1.5 million, and the nature of its findings was not plainly erroneous.

[00:14:14] Speaker 00:
I mentioned that plainly erroneous standard, even though that isn't how we articulate it in the brief, because to some extent, I think the argument being presented now, the oral argument, and perhaps in the reply brief, is somewhat different from what was actually raised in the objections in the sentencing memorandum.

[00:14:29] Speaker 00:
The defendant's sentencing memorandum was more a categorical argument about how we shouldn't consider losses outside of what was presented at trial.

[00:14:37] Speaker 00:
And now it looks like the argument is, well, the losses that were presented at sentencing are somehow insufficient.

[00:14:43] Speaker 00:
The court didn't make these particularized findings.

[00:14:46] Speaker 00:
I would also note that the nature of what the particularized findings are meant to be under the case law is not a line by line analysis of each victim and their connection to the conspiracy.

[00:14:57] Speaker 00:
According to Lloyd, who is quoting Treadwell,

[00:15:00] Speaker 00:
a district court need not proceed item by item.

[00:15:04] Speaker 00:
Instead what it has to do is make a particularized finding about quote the scope of the criminal activity of the particular defendant that they agreed to undertake.

[00:15:13] Speaker 01:
Where in the record did the district court make that finding?

[00:15:18] Speaker 00:
The court made that finding when it said that it believed the defendant was a leader or organizer in this conspiracy.

[00:15:26] Speaker 00:
The court didn't

[00:15:27] Speaker 00:
go all the way to apply that enhancement, but factually the court did believe, and said so on the record, that this defendant was not a middleman, this defendant was not a bit player, he was in fact a leader or organizer.

[00:15:39] Speaker 00:
That was not a clearly erroneous finding in light of a lot of evidence, particularly trial evidence from the cooperator Danny Malcolm.

[00:15:46] Speaker 00:
who says that the defendant recruited him.

[00:15:48] Speaker 00:
He was his boss.

[00:15:49] Speaker 00:
He had multiple offices full of people who worked for him.

[00:15:52] Speaker 00:
He distributed lead lists.

[00:15:54] Speaker 00:
He distributed money.

[00:15:55] Speaker 00:
He handed out scripts to tell people what to say on the phone.

[00:15:58] Speaker 00:
If they were having trouble, they could refer the call to him because he knew how to, quote, crack a victim.

[00:16:04] Speaker 00:
He's making direct calls to victims.

[00:16:07] Speaker 00:
He's coming to America to pick up money.

[00:16:09] Speaker 00:
He is creating email accounts.

[00:16:12] Speaker 00:
He is clearly monitoring the activity of co-conspirators when they're forwarding emails to him that they're sending to other people.

[00:16:19] Speaker 00:
His involvement is vast, and it's far beyond what he said it was in his admissions.

[00:16:25] Speaker 00:
So the court recognizes all of that.

[00:16:28] Speaker 00:
And the higher you go up in a conspiracy, the more of its activities are going to be reasonably foreseeable to you.

[00:16:33] Speaker 00:
So cases like Lloyd and Treadwell are making the point that membership in the conspiracy

[00:16:38] Speaker 00:
does not automatically make you liable for everything that conspiracy does.

[00:16:43] Speaker 00:
However, if you're a leader in the conspiracy, much of its activity is going to be reasonably foreseeable to you.

[00:16:48] Speaker 00:
And so the court, in finding him a leader or organizer and adopting the PSR and rejecting a minor role reduction, is saying, look, this defendant is a leader.

[00:16:59] Speaker 00:
His involvement in the conspiracy is such that its activities are reasonably foreseeable.

[00:17:04] Speaker 04:
The court did not appear to hold him liable for the losses of all the victims that were victimized by the conspiracy.

[00:17:13] Speaker 04:
There does seem to be some individual calculations for each defendant.

[00:17:20] Speaker 04:
One of the difficulties is that the calculations are reported in the PSR, but it's hard to ascertain what was behind the calculation.

[00:17:32] Speaker 04:
Isn't that something of a problem?

[00:17:34] Speaker 00:
The government submitted a sentencing memorandum which included a summary chart which contained more information than simply what was in the PSR.

[00:17:43] Speaker 04:
So you're saying we can infer, the court made reference and adopted the findings in the PSR and you're saying we can properly supplement that by referencing the sentencing memorandum?

[00:17:58] Speaker 00:
Yes.

[00:17:59] Speaker 00:
And one of the reasons I think the record supports that is because the probation department responds to the objections in the defendant's sentencing memorandum, which means that it was considering what the defendant said.

[00:18:11] Speaker 00:
Also, it would be considering what the government said.

[00:18:14] Speaker 00:
And the probation department's response includes explanation for why it thinks the defendant was involved and this was relevant conduct.

[00:18:23] Speaker 02:
Council, if this were a jury finding, we probably would be able to look at the government's chart.

[00:18:30] Speaker 02:
It's a little troubling for you to ask us to look at the government's chart, which was submitted to the probation department for the preparation of the PSR, because we have no idea whether the probation department said, ah, the government's overreaching with respect to this one.

[00:18:43] Speaker 02:
So here are our calculations.

[00:18:45] Speaker 02:
And when the district court says, I'm approving what's in the PSR, doesn't that just limit it to what's in the PSR and not allow us to look behind it?

[00:18:57] Speaker 00:
No, I don't think so, Your Honor.

[00:18:58] Speaker 00:
The probation department is making this decision about whether it will sustain or overrule the objection.

[00:19:05] Speaker 00:
And then, of course, the district court has to come behind that and make its own determination.

[00:19:09] Speaker 00:
And that would include anything submitted to the probation department.

[00:19:12] Speaker 02:
Well, it would be fine if the district court said,

[00:19:15] Speaker 02:
I've looked at the PSR, I've looked at the party submissions to the probation department, and I agree with the government's submission to the PSR.

[00:19:25] Speaker 02:
That would get us straight to your exhibit.

[00:19:29] Speaker 02:
But when the district court says, I agree with the PSR, doesn't that just limit us to what's in the PSR?

[00:19:37] Speaker 00:
No, Your Honor.

[00:19:38] Speaker 00:
I think we can consider what the probation department considered when computing that PSR.

[00:19:43] Speaker 00:
I would also argue this is one of the class of things that would be reviewable for plain error, because this is not what was objected to in the sentencing memorandum.

[00:19:51] Speaker 00:
At no point did the defendant say, hey, you can't consider this evidence the government is submitting.

[00:19:55] Speaker 00:
You should only

[00:19:56] Speaker 00:
consider what was submitted at trial.

[00:19:59] Speaker 00:
Well, I mean, they did argue that loss should be limited to trial, but that was more this categorical, you aren't allowed to look past the trial evidence, not there's something insufficient about the government's presentation now.

[00:20:09] Speaker 00:
So I would say that's a plainly erroneous standard we're looking at for that.

[00:20:13] Speaker 00:
But more importantly, district court's findings are viewable for clear error.

[00:20:18] Speaker 00:
The finding does not have to be very precise.

[00:20:20] Speaker 00:
It needs to only really be an estimate.

[00:20:22] Speaker 00:
Something else important to consider here is we could lose half of these victims and still stay over the $1.5 million threshold because the court finds fraud loss of about $2.3 million and the sentencing guideline we're looking at, the threshold is $1.5 million.

[00:20:38] Speaker 00:
So even if there were some problem with a handful of these, it would be harmless because we would stay over that $1.5 million threshold.

[00:20:45] Speaker 00:
And if you do look at the evidence, there are many connections to the conspiracy.

[00:20:49] Speaker 00:
Some of these people are sending their boxes of cash to the same address as the trial victim sending boxes of cash.

[00:20:55] Speaker 00:
Some of these people, their numbers, phone numbers, are appearing in emails and correspondence between the co-conspirators.

[00:21:02] Speaker 00:
We don't have to have a one-to-one connection to the defendant himself, given that he's a leader.

[00:21:06] Speaker 00:
The activities of the people in the conspiracy he's involved with are also relevant.

[00:21:12] Speaker 00:
As for this timeline issue, I would add that we shouldn't cut the timeline for the conspiracy short.

[00:21:17] Speaker 00:
We absolutely can consider all the way to 2017.

[00:21:20] Speaker 00:
One of the facts that's important to keep in mind here is, indeed, that's the year that the defendant goes to Hawaii to pick up that box from the victim NK.

[00:21:29] Speaker 00:
Malcolm testifies that he worked on the victim NK.

[00:21:32] Speaker 00:
He actually called her

[00:21:33] Speaker 00:
transferred her over to the defendant and they had a bit of a squabble about her because each of them was independently calling her trying to get more money out of her and this led to a disagreement between the two of them so even if we thought that mostly Malcolm had gone a separate way by then although the timelines hazy on that too clearly they're still working together on some level at least up to that point so I don't think it's fair to say that they're essentially independent conspiracies at that point also

[00:22:01] Speaker 00:
If looking at the sufficiency of the trial evidence for just a minute, all of those counts aren't really regarding that victim anyway.

[00:22:07] Speaker 00:
They're regarding a different victim, LG.

[00:22:09] Speaker 00:
And if you look at the other summary chart that we submitted in the SCR with all the connections, it's very easy to see that multiple co-conspirators are working on all of these people at the same time.

[00:22:19] Speaker 00:
This is not a situation with parallel conspiracies.

[00:22:22] Speaker 00:
These people all have some connection to each of these victims.

[00:22:26] Speaker 01:
So if we were to conclude that the district courts

[00:22:31] Speaker 01:
errors on the amount of loss, that the district court's findings were not sufficient.

[00:22:35] Speaker 01:
What would be the remedy?

[00:22:37] Speaker 00:
The remedy would be a remand for the district court to recalculate that loss.

[00:22:43] Speaker 01:
What about the rest of the sentencing issues because that loss calculation affected the total offense level number?

[00:22:55] Speaker 00:
That's true.

[00:22:56] Speaker 00:
I think the court could do a limited remand simply on the issue of fraud loss.

[00:23:00] Speaker 00:
And if the court came to the same conclusion, then there would be no need for a full-on resentencing.

[00:23:07] Speaker 00:
So I don't think that the remand has to be a full resentencing immediately, since we can handle this issue through a limited remand.

[00:23:14] Speaker 00:
If the court were to decide that it would not have reached the same result, then perhaps we would have to proceed to a full resentencing.

[00:23:19] Speaker 00:
But I don't think we're there yet.

[00:23:22] Speaker 01:
So you're suggesting

[00:23:24] Speaker 01:
How would that work?

[00:23:25] Speaker 01:
We would do a limited remand.

[00:23:27] Speaker 01:
The district court would make findings on the loss amount.

[00:23:32] Speaker 01:
If they reach a different conclusion, then what?

[00:23:36] Speaker 01:
Then the district court opens it up and has a full re-sentencing.

[00:23:40] Speaker 00:
Yes, I think that would be right.

[00:23:42] Speaker 00:
But if the court came to the same conclusion that it exceeded the 1.5 million threshold, then the court would not, we wouldn't need to reopen the full re-sentencing.

[00:23:49] Speaker 01:
Well, why, what difference would it make from

[00:23:53] Speaker 01:
I mean, if we send it back for re-sentencing and the district court reaches the same lost conclusion, the district court may then reach the same result on all the other sentencing issues.

[00:24:05] Speaker 01:
I mean, I don't see why we would just carve this up.

[00:24:08] Speaker 00:
Essentially, for a judicial economy, there would be no reason to re-litigate the rest of the sentence if the court is going to come to the same conclusion that this sentence enhancement was valid and the sentencing guidelines range remained the same.

[00:24:19] Speaker 04:
Wouldn't you still have a question about the restitution amount?

[00:24:24] Speaker 04:
That's a finite, precise number.

[00:24:28] Speaker 00:
True, but that's not an issue on appeal.

[00:24:30] Speaker 00:
The defendant has not objected to the restitution amount.

[00:24:32] Speaker 00:
It's not been raised as an issue on the opening brief.

[00:24:36] Speaker 00:
To the extent that there are any issues about them, they're waived and abandoned.

[00:24:39] Speaker 00:
So there's no reason to think that there would be a new restitution inquiry in this case, even if the fraud laws were recalculated.

[00:24:46] Speaker 01:
So in the defendant's brief, he argued that if this case were remanded for resentencing, it should be

[00:24:54] Speaker 01:
It should be a do-over.

[00:24:55] Speaker 01:
It should be a complete resentencing, not just a partial resentencing.

[00:24:59] Speaker 01:
And I didn't see any response in the government's brief.

[00:25:02] Speaker 01:
Could we conclude the government's waived any argument on that point?

[00:25:06] Speaker 00:
No, because we argue that their sentencing was valid.

[00:25:09] Speaker 00:
His argument is largely based on both of his sentencing claims.

[00:25:13] Speaker 00:
And his other claim is the rejection of the minor role reduction, which we respond to in the brief.

[00:25:17] Speaker 00:
And I've briefly alluded to here the finding that the defendant was a leader or organizer is

[00:25:23] Speaker 00:
mutually exclusive with finding a minor role.

[00:25:26] Speaker 00:
So the court correctly didn't clearly err in rejecting minor role reduction.

[00:25:31] Speaker 00:
So really the only sentencing issue that would be at play is this fraud loss calculation.

[00:25:36] Speaker 00:
And as I've said, I don't think it's necessary for a full remand when the court could have a limited inquiry into that, assuming that that would be legally compelled, which of course we're still maintaining it's not.

[00:25:46] Speaker 01:
I think that's a different issue.

[00:25:48] Speaker 01:
Yes, the government argued in their brief that the

[00:25:51] Speaker 01:
lost calculation findings were sufficient and that the district court's findings with respect to whether she should have minor role reduction were sufficient.

[00:26:00] Speaker 01:
I understand that.

[00:26:01] Speaker 01:
That was all in your brief.

[00:26:02] Speaker 01:
But I didn't see anything in the government's brief saying, well, we're responding to the defendant's argument that this should be a full resentencing.

[00:26:10] Speaker 01:
And instead, we think it should only be a limited resentencing for these reasons.

[00:26:16] Speaker 01:
I mean, is it in the brief?

[00:26:17] Speaker 01:
And I just missed it.

[00:26:18] Speaker 01:
I don't think it was there.

[00:26:19] Speaker 00:
I don't believe I explicitly make that point.

[00:26:23] Speaker 00:
I think it's more implied in the idea that we think there's no error in this case and that if this court were to fashion a remedy, it would be the most judicially economical one.

[00:26:37] Speaker 00:
If this court has no further questions, we respectfully request that it affirm both the conviction and the senses.

[00:26:41] Speaker 01:
Thank you.

[00:26:50] Speaker 03:
Your Honors, just briefly, number one, by my calculations, looking at the record that I have available to me, the amount of fraud loss that can be proven is only marginally above the 785,000, I think, that was calculated for the trial victims, the three trial victims.

[00:27:18] Speaker 03:
the rest of the victims, I think it's really up in the air.

[00:27:23] Speaker 03:
The conclusions that the probation department reaches really are so vague and so ill-defined that they amount to speculation.

[00:27:39] Speaker 03:
And this court has no record

[00:27:42] Speaker 03:
Frankly, the victims that were listed in the government's brief, this court has no record about those people at all other than what probation said.

[00:27:51] Speaker 03:
And probation is making, you know, generalized comments speculating based on there's no evidence that this court has to look at to resolve those particular issues.

[00:28:04] Speaker 03:
I would add one final thing.

[00:28:06] Speaker 03:
Lloyd and some other cases have emphasized the importance

[00:28:12] Speaker 03:
In cases where fraud loss is in question, to look at the defendants, try to trace profits, look to see if there are profits coming from a victim that the government seeks to include in the fraud loss calculation.

[00:28:33] Speaker 03:
And in this case, there's no evidence of that.

[00:28:36] Speaker 03:
Only the trial victims.

[00:28:38] Speaker 03:
the three trial victims are the only victims that I am aware of where the government can tie those victims to any profit that went in the direction of Mr. McIntosh.

[00:28:54] Speaker 03:
Thank you.

[00:28:54] Speaker 03:
Thank you.

[00:28:55] Speaker 01:
Council, thank you both for your arguments this morning.

[00:28:59] Speaker 01:
This case is submitted.