[00:00:04] Speaker 06:
We'll move on to our second argument set for this morning, United States versus Jau.

[00:00:12] Speaker 06:
We've got a series of case numbers, 24-6006, 24-6010, 24-6048, 24-6734, 24-6747, and 24-6749.

[00:00:31] Speaker 06:
and we're hearing remotely.

[00:00:32] Speaker 06:
I guess the way we'll do this, we didn't get into rebuttal.

[00:00:40] Speaker 06:
I don't know if each of you want to rebuttal, but we'll give each of you 10 minutes.

[00:00:44] Speaker 06:
And then if you have rebuttal time, any of you, you can choose to use that.

[00:00:50] Speaker 06:
We'll go through and then after that, we'll turn to the government and then we'll come back to any rebuttal.

[00:00:56] Speaker 06:
So we'll start first with Ms.

[00:00:59] Speaker 06:
Conrove.

[00:01:02] Speaker 02:
Good morning, Your Honors.

[00:01:03] Speaker 02:
May it please the court, Marissa Conroy on behalf of the appellant, Luella Zhao.

[00:01:09] Speaker 02:
Your Honors, I intend to use five minutes of the allocated time and would intend to reserve one minute for rebuttal.

[00:01:16] Speaker 06:
Thank you.

[00:01:18] Speaker 02:
This is a case about when the guidelines number is formed, not whether that number is ultimately correct.

[00:01:25] Speaker 02:
Rule 32 protects notice before the guidelines move.

[00:01:29] Speaker 02:
In this case, a six level enhancement was applied, which appeared for the very first time at sentencing that ultimately shifted the guidelines range and anchored the district court sentence.

[00:01:42] Speaker 02:
A later sentencing hearing couldn't undo the procedural defect.

[00:01:47] Speaker 02:
So we are respectfully asking this court to remand

[00:01:51] Speaker 02:
and a vacate and remand for limited resentencing with the loss aggregation disclosed and tested before the guidelines range is set.

[00:02:01] Speaker 06:
So going back to the- Can I back up because, I mean, so you want to limit it at $40,000 is basically, or what are you asking for?

[00:02:12] Speaker 06:
When you said the loss calculation before, what was that?

[00:02:19] Speaker 02:
So originally the loss calculation was approximately $17,000, which related to the commissions with Joshua Jow, and that was a four level enhancement, which was what was agreed to in the plea agreement and documented in the original and draft PSR by probation.

[00:02:37] Speaker 02:
On the day of sentencing,

[00:02:40] Speaker 02:
The probation officer provided a spreadsheet and indicated there was an additional $225,000 in loss, which would then result in an additional six levels of- Hold on.

[00:02:51] Speaker 06:
Oh, go ahead.

[00:02:51] Speaker 01:
Wasn't the discovery that all of these calculations were based on provided to the parties, that wasn't a surprise.

[00:02:58] Speaker 01:
Am I right about that?

[00:03:00] Speaker 02:
The data is not a surprise.

[00:03:02] Speaker 02:
It's the methodology that was never provided and the ultimate basis for the methodology of getting to the additional six level.

[00:03:10] Speaker 01:
So then the district court asked the probation officer to give a little bit more detail, a final calculation.

[00:03:18] Speaker 01:
Objections were raised and the district court continued the hearing, correct?

[00:03:22] Speaker 01:
And gave the parties an opportunity to look at that and have their arguments figured out or what their challenges were.

[00:03:28] Speaker 02:
going to be before she actually did the sentencing.

[00:03:39] Speaker 02:
But by the time that sentencing hearing happened, a PSR had already applied the additional enhancement.

[00:03:45] Speaker 02:
The district court was operating off of the fact that this was now a 10 level increase rather than the original four level.

[00:03:52] Speaker 01:
I'm struggling to find out, figure out like why that's different from the ordinary course in terms of, uh, if, if you, if, if the district court had not granted a continuance and allowed the parties to assess the calculation that was done sort of last minute,

[00:04:07] Speaker 01:
will give you that, then I would understand the argument.

[00:04:10] Speaker 01:
But the district court did continue the hearing and allow that period of time for the parties to look at the information and formulate whatever objections and arguments that they had.

[00:04:18] Speaker 01:
So I'm struggling to see how that's a due process issue when all of this was ultimately based on, as you've acknowledged, data that the parties had anyways.

[00:04:27] Speaker 01:
That wasn't a surprise.

[00:04:28] Speaker 02:
Yeah, well, it's a Rule 32, Issue 2 is what I'm saying.

[00:04:32] Speaker 02:
And so by the time that second sentencing hearing was held, the district court was already anchored off the new guidelines.

[00:04:40] Speaker 02:
They were operating off the premise that this loss was established and it was merely contesting the facts.

[00:04:46] Speaker 02:
So that's where the deprivation occurred.

[00:04:48] Speaker 02:
What never happened was the district court's determination that that additional $225,000

[00:04:54] Speaker 02:
was relevant conduct under 1B1.3.

[00:04:59] Speaker 06:
But the district court took testimony on that.

[00:05:03] Speaker 02:
The district court took testimony as to the numbers, but not as to the foreseeability.

[00:05:08] Speaker 02:
Was this attributable, all of this, to Ms.

[00:05:11] Speaker 02:
Zhao?

[00:05:12] Speaker 02:
Temporarily, her role, all of the analysis under 1B1.3, that did not happen.

[00:05:17] Speaker 02:
The district court was already operating off the premise that the enhancement applied.

[00:05:24] Speaker 01:
Is there something that you would have done on that point to defend your client that you weren't able to do at the continued hearing?

[00:05:31] Speaker 02:
Absolutely.

[00:05:32] Speaker 01:
Tell me what.

[00:05:33] Speaker 01:
I don't understand what that would have been.

[00:05:35] Speaker 02:
So first, the theory for the loss should have been disclosed, the basis for that, and we would have been able to go through, we're not disputing those aggregate transactions existed, but was each one of those transactions attributable within the scope of what's defined as relevant conduct under 1B1.3 as to Ms.

[00:05:54] Speaker 02:
Zhao?

[00:05:55] Speaker 02:
Was what her role was defined in that conspiracy, did that limit whether those transactions were attributable to her?

[00:06:01] Speaker 02:
Temporarily, were all of those transactions attributable to her?

[00:06:06] Speaker 06:
Back up, because if I understand this correctly, what's up on appeal to us is the sentencing.

[00:06:11] Speaker 06:
You have not separately challenged the restitution award, correct?

[00:06:17] Speaker 02:
My co-counsel is addressing restitution.

[00:06:22] Speaker 06:
Is that up on any of these appeals?

[00:06:24] Speaker 06:
Is the restitution award up on any of these appeals?

[00:06:28] Speaker 06:
I'm hearing a nod.

[00:06:29] Speaker 06:
So it sounds like I'll wait and hear from your co-counsel.

[00:06:32] Speaker 02:
Ms.

[00:06:32] Speaker 02:
Bell is addressing the restitution issue.

[00:06:34] Speaker 02:
Yes, that is correct.

[00:06:36] Speaker 02:
I am simply addressing what we are contesting is the rule 32 issue, deny the opportunity to challenge that enhancement before the district court used that as the anchoring guidelines at the second.

[00:06:49] Speaker 06:
You don't disagree with the fact that you knew that the district court was not bound by

[00:06:57] Speaker 06:
you know, with the government stating that we weren't going to seek sentencing based on any more than $40,000 in loss.

[00:07:06] Speaker 06:
So you knew that the district court could go above that, right?

[00:07:10] Speaker 02:
Absolutely.

[00:07:10] Speaker 02:
We're not disputing the district court.

[00:07:12] Speaker 06:
So you're just saying that the way that the district court went about it didn't give you fair notice to be able to challenge?

[00:07:20] Speaker 02:
Absolutely.

[00:07:21] Speaker 02:
It was the process.

[00:07:22] Speaker 04:
But I thought I heard you say that you weren't challenging the figures.

[00:07:28] Speaker 04:
that you were only challenging whether your client was related to that loss.

[00:07:32] Speaker 04:
Is that correct?

[00:07:33] Speaker 02:
I'm not challenging the existence of the figures.

[00:07:36] Speaker 02:
It's what's properly attributed to Ms.

[00:07:38] Speaker 02:
Zhao.

[00:07:38] Speaker 02:
That is correct.

[00:07:39] Speaker 04:
Okay.

[00:07:39] Speaker 04:
And what did she plead to?

[00:07:44] Speaker 02:
Are you asking me the factual basis or the price?

[00:07:46] Speaker 04:
I'm asking what the charge is.

[00:07:48] Speaker 02:
18 USC 1028.

[00:07:51] Speaker 02:
Is that a conspiracy charge?

[00:07:54] Speaker 02:
Yes, it was a conspiracy.

[00:07:56] Speaker 04:
OK.

[00:07:57] Speaker 04:
Then what kind of argument do you think you can make in defense of your client to a conspiracy charge if you're not really challenging the figures?

[00:08:07] Speaker 02:
Because a conspiracy and relevant conduct are different things, as defined under the guidelines.

[00:08:12] Speaker 02:
1B1.3 specifically says, just because it's a conspiracy, you still need to assess whether the relevant conduct can be attributable to that individual defendant and their particular role in the conspiracy.

[00:08:23] Speaker 04:
But if it was attributable to any of the defendants, wouldn't it be attributable to your client under a conspiracy theory?

[00:08:30] Speaker 02:
No, because individuals all play different roles in conspiracies.

[00:08:34] Speaker 02:
The temporal duration can be different.

[00:08:36] Speaker 02:
As it was in this case, Ms.

[00:08:37] Speaker 02:
Sauri Jow joined the conspiracy at a later date.

[00:08:41] Speaker 02:
So all of those factors are part of the relevant conduct analysis.

[00:08:45] Speaker 02:
Conspiracy and relevant conduct are not the same thing.

[00:08:49] Speaker 02:
And I see my time has expired.

[00:08:51] Speaker 02:
So with that, I would reserve for rebuttal.

[00:08:53] Speaker 06:
OK, thank you.

[00:08:54] Speaker 02:
Thank you.

[00:08:56] Speaker 06:
And we'll hear next from Mr. McDonald.

[00:09:03] Speaker 07:
Good morning, judges.

[00:09:05] Speaker 07:
May it please the court, Charles McDonald on behalf of defendant, appellant Joshua Zhao.

[00:09:11] Speaker 07:
Your honor, the facts of my case are somewhat different from the other co-defendants.

[00:09:16] Speaker 07:
In my case, the forged signature calculations were never mentioned in the PSR.

[00:09:22] Speaker 07:
until the judge created a dispute with the PSR.

[00:09:26] Speaker 07:
So she manufactured the dispute so that she could enhance the amount of the loss.

[00:09:33] Speaker 07:
Well, wait.

[00:09:35] Speaker 06:
Oh, you're saying the officer manufactured the dispute.

[00:09:39] Speaker 07:
Well, the record reflects your honor that the officer amended the PSR following a phone call from the court.

[00:09:47] Speaker 07:
So this is at 280 to 281.

[00:09:51] Speaker 07:
The officer said that

[00:09:53] Speaker 07:
The court called him the night before the hearing.

[00:09:55] Speaker 06:
They discussed at length the case.

[00:09:59] Speaker 06:
Wait, I just want to be clear who you're saying manufactured the dispute.

[00:10:02] Speaker 06:
You're suggesting the district court, the judge, manufactured the dispute.

[00:10:08] Speaker 07:
That's correct, Your Honor.

[00:10:08] Speaker 07:
There was no dispute with the lost calculation when it was presented to the court in the PSR.

[00:10:13] Speaker 07:
The government agreed.

[00:10:14] Speaker 07:
The defendant agreed.

[00:10:15] Speaker 06:
No, counsel, that's not true.

[00:10:18] Speaker 06:
That's just flatly not true.

[00:10:20] Speaker 06:
The government said we're not going to seek sentencing based on more than $40,000.

[00:10:27] Speaker 06:
But the government never said that was the total loss.

[00:10:29] Speaker 06:
To the contrary.

[00:10:33] Speaker 06:
So I mean, and maybe this goes to the disqualification, which I thought was very

[00:10:39] Speaker 06:
ill-founded to try and disqualify the judge based on this.

[00:10:43] Speaker 06:
And that's a little bit what I'm sensing.

[00:10:44] Speaker 06:
That's why I'm asking you these questions.

[00:10:46] Speaker 06:
Because to me, look, we have a separate question about whether the district court approached this correctly in the procedure.

[00:10:55] Speaker 06:
But I don't see any problem with the district court asking the question of, in fact, not a problem with it, exactly what a district court should do.

[00:11:06] Speaker 06:
Is say, is there evidence of more loss here?

[00:11:09] Speaker 06:
And if so, you know, let's do an investigation on that and let's have that.

[00:11:13] Speaker 06:
I mean, are you saying that the district court was acting impartially or discriminatory, you know, without partiality?

[00:11:23] Speaker 07:
That's correct, Your Honor.

[00:11:25] Speaker 07:
And the probation officer stated on the record that the phone call caused him to amend the PSR when it was otherwise agreed to between the parties.

[00:11:34] Speaker 07:
And this call happened the night before the hearing, Your Honor.

[00:11:37] Speaker 07:
And what rule does that violate?

[00:11:42] Speaker 07:
Well, the court created the dispute, Your Honor.

[00:11:45] Speaker 07:
There was no dispute.

[00:11:47] Speaker 06:
But counsel,

[00:11:49] Speaker 06:
A court can create a dispute.

[00:11:51] Speaker 06:
That's what you're missing.

[00:11:52] Speaker 06:
You seem to be coming in here arguing, well, the government, we got a sweetheart deal from the government on sentencing, and we wanted the district court to bless that.

[00:12:02] Speaker 06:
Our case law flatly rejects that position.

[00:12:05] Speaker 06:
No defense counsel should have that expectation.

[00:12:09] Speaker 06:
A district court is always free to ask questions.

[00:12:13] Speaker 07:
Yes, Your Honor, I agree, but we believe she went beyond asking questions, Your Honor.

[00:12:17] Speaker 07:
She prepared the probation officer.

[00:12:19] Speaker 07:
She created the exhibit.

[00:12:22] Speaker 07:
by amending the PSR, and then she tried the case.

[00:12:25] Speaker 07:
She prosecuted the higher loss amount, and that's the point we're trying to make.

[00:12:29] Speaker 04:
It's not unusual, counsel, for us to have a judge sort of sniff out that justice is not being fully served in a good deal that's been negotiated between the United States Attorney's Office and the defendant.

[00:12:44] Speaker 04:
This is not

[00:12:46] Speaker 04:
I mean, this has got its own set of facts, but it's not a profile that is new to us.

[00:12:55] Speaker 04:
So that's why I'm asking, what rule here are you arguing is a violation of the due process clause?

[00:13:02] Speaker 04:
Is it a violation of the federal rules of criminal procedure?

[00:13:05] Speaker 04:
Is it a violation of some other statute?

[00:13:07] Speaker 04:
Is it a violation of the sentencing guidelines?

[00:13:09] Speaker 04:
What rule of law here prohibits the judge from inquiring as to whether there's been any other loss here that was not accounted for in the PSR and the plea agreement?

[00:13:20] Speaker 07:
It's due process clause, Your Honor.

[00:13:22] Speaker 07:
We feel that she lost her impartiality.

[00:13:25] Speaker 07:
It's really disqualification that you're after.

[00:13:29] Speaker 07:
Yes, Your Honor.

[00:13:31] Speaker 01:
And the more I listen to the argument, both from the briefing and what you're presenting today, it seems the root of all of this is almost like an estoppel argument of the district court was bound by the PSR.

[00:13:43] Speaker 01:
that the parties get to object to the PSR if they have things in there they don't like, but the district court just has to take it and run with it, absent a party objection.

[00:13:51] Speaker 01:
And that's just not how this works.

[00:13:53] Speaker 01:
So I think you're sort of hearing a little bit of incredulousness or surprise or something from the entire bench of just like, that's just not how this works.

[00:14:02] Speaker 03:
Understood, Your Honor.

[00:14:07] Speaker 03:
OK.

[00:14:07] Speaker 03:
Do you want time for rebuttal?

[00:14:14] Speaker 06:
Yes, Your Honor, I reserve time for rebuttal.

[00:14:17] Speaker 06:
Sounds good.

[00:14:17] Speaker 06:
And now we'll hear from Miss Bell.

[00:14:21] Speaker 00:
Thank you, Your Honors.

[00:14:22] Speaker 00:
May it please the court, Alyssa Bell, on behalf of Miss Sayori Zhao.

[00:14:26] Speaker 00:
I wanted to make clear at the outset that my client has finished serving her sentence and has been deported to her home nation of Japan.

[00:14:33] Speaker 00:
And that is why I'm addressing solely the restitution issue that remains outstanding as to her.

[00:14:39] Speaker 00:
I, your honor, I heard a question at the outset as to whether any issues with respect to restitution had been preserved.

[00:14:47] Speaker 00:
They absolutely have.

[00:14:48] Speaker 00:
That was one of the key arguments in my client's opening brief.

[00:14:53] Speaker 00:
The government has responded to it.

[00:14:56] Speaker 00:
It was a focus of the reply brief.

[00:14:58] Speaker 00:
And so it is preserved for this court's review.

[00:15:02] Speaker 06:
Your honor.

[00:15:02] Speaker 06:
And the question for restitution is whether that calculation, I mean,

[00:15:07] Speaker 06:
the whether it's supported by reliable evidence, right?

[00:15:12] Speaker 00:
Yes, exactly, Your Honor.

[00:15:13] Speaker 00:
That's exactly correct.

[00:15:14] Speaker 06:
And your position is it's not reliable evidence.

[00:15:19] Speaker 00:
Yes.

[00:15:19] Speaker 00:
And let me make clear why, Your Honor, the district court heard testimony from the victim and from the probation officer.

[00:15:26] Speaker 00:
The victim testified in narrative form that he had hired an expert, two experts, actually, to do a handwriting analysis on the one hand.

[00:15:37] Speaker 00:
and to do investigation into particular transactions on the other.

[00:15:40] Speaker 00:
The issue here is not the fact of loss and that some award of restitution would be appropriate.

[00:15:47] Speaker 00:
The issue is the extent of that restitution award.

[00:15:51] Speaker 00:
And in that regard, it is only the handwriting analyst who is at issue.

[00:15:57] Speaker 00:
Because the victim did not himself, of course, do any handwriting analysis.

[00:16:02] Speaker 00:
He relied on his own retained expert

[00:16:06] Speaker 00:
who compared signatures to signatures on IDs.

[00:16:12] Speaker 00:
And so in effect, the district court relied on the victim's testimony that he had hired someone who was reliable.

[00:16:22] Speaker 00:
And our contention is that that is insufficient because the affiant before the court had no percipient knowledge and there was no basis for the district court to test that evidence.

[00:16:33] Speaker 00:
And the government for its part proffered no additional facts to meet its burden by a preponderance.

[00:16:41] Speaker 01:
And so I think in this respect- I'm curious what, I mean, the district court has broad authority to consider what it finds to be relevant evidence at sentencing to make these kinds of judgments.

[00:16:53] Speaker 01:
So what standard of review do you think we apply here?

[00:16:56] Speaker 00:
Clear error, Your Honor.

[00:16:57] Speaker 00:
I believe this, our contention is that this finding a fact was clearly erroneous.

[00:17:03] Speaker 01:
I would call the court's attention to- The finding of fact is the calculation.

[00:17:07] Speaker 00:
Yes, the amount of restitution.

[00:17:09] Speaker 01:
The question before- It seems like your argument is more about the evidence that she's considering, which is why I'm asking, because that would seem like an abuse of discretion standard.

[00:17:16] Speaker 01:
She shouldn't have looked at this piece of information or deemed it relevant or deemed it reliable.

[00:17:21] Speaker 01:
Isn't that the nature of the argument you're actually making?

[00:17:23] Speaker 00:
I think that's probably correct, Your Honor.

[00:17:27] Speaker 00:
It is a little confusing exactly how these standards lay on top of each other.

[00:17:31] Speaker 00:
Clear error would apply to the district court's finding of fact.

[00:17:35] Speaker 00:
She did make factual findings as to the amount of restitution.

[00:17:39] Speaker 00:
It is that factual finding that we dispute was accurate.

[00:17:41] Speaker 01:
Would you agree that if we concluded that the information that the district court deemed to be relevant and reliable enough to rely on and to use as the basis of her decision, if we accept that premise, that the calculation was not clearly erroneous?

[00:17:58] Speaker 00:
Yes, Your Honor.

[00:17:59] Speaker 00:
I agree with that entirely.

[00:18:00] Speaker 00:
Our contention is purely as to the reliability of this evidence.

[00:18:05] Speaker 00:
And I would call the court's attention to United States versus Wach 9.

[00:18:10] Speaker 00:
That is the case upon which both parties, including the government, principally rely.

[00:18:14] Speaker 00:
In that case, the restitution award was properly for the amount of attorney's fees.

[00:18:22] Speaker 00:
And the victim put a declaration into the record of his attorney.

[00:18:26] Speaker 00:
that the attorney had charged him a certain number of fees, a certain amount of fees, I should say.

[00:18:31] Speaker 00:
And this court found that that declaration was insufficient because it did not state the attorney's qualifications nor his hourly billing rate and merely gave an aggregate number.

[00:18:41] Speaker 00:
And what we have here is substantially analogous.

[00:18:45] Speaker 00:
In this case, we cannot tell what the qualifications of the handwriting expert were, qualifications, and what methodology that

[00:18:54] Speaker 00:
person may have relied on.

[00:18:56] Speaker 00:
Expert sounds impressive, but that is merely the victim's characterization and his own good faith belief in terms of who he hired, but there was nothing before the district court.

[00:19:08] Speaker 00:
So essentially the two affidants before the district court were competent to testify that the math was correct, but they were not competent to testify that these in fact were forged signatures.

[00:19:22] Speaker 06:
The district court actually went through, I thought the district court went through and actually found some signatures that she determined were forged.

[00:19:34] Speaker 00:
I don't believe that's accurate, Your Honor.

[00:19:35] Speaker 00:
I believe in fact the district court went through the discovery to ascertain whether all parties had the relevant evidence before them in discovery.

[00:19:44] Speaker 00:
And I think that dispute in turn turns on my colleague's argument.

[00:19:50] Speaker 00:
as to the fairness of the procedure here.

[00:19:53] Speaker 00:
But the district court verified that this evidence was in fact available to the parties in discovery, although it was undisputed by all that no total had ever been calculated or provided up until the point that the district court made that inquiry.

[00:20:12] Speaker 00:
But the fact remains, your honor, is that there was no affiant before the court

[00:20:17] Speaker 00:
who could state that these forged signature commissions so-called actually derived from forged signatures.

[00:20:25] Speaker 00:
In that respect, the district court credited the testimony of the victim that there was a third party who had done reliable work.

[00:20:39] Speaker 00:
And that's simply insufficient for the government to rely on in meeting its burden by a preponderance of the evidence.

[00:20:46] Speaker 01:
What role does the plea agreement and sort of the proffer of an admission of unlawful conduct play in this analysis?

[00:20:56] Speaker 00:
Well, the fact of the fraud is uncontested and admitted to by my client beyond reasonable doubt.

[00:21:03] Speaker 00:
There was some amount of restitution and no amount was agreed to in the plea agreement, but there was some amount of restitution that was required for the so-called forged signature

[00:21:12] Speaker 00:
commissions, but how much?

[00:21:15] Speaker 01:
It seems on the nature of the argument that you're making that it's an on-off switch.

[00:21:19] Speaker 01:
It's either the information that was looked at by the district court was reliable on a basis to make a calculation or it wasn't.

[00:21:27] Speaker 01:
So am I mischaracterizing sort of what you're saying?

[00:21:31] Speaker 00:
No, you're not, Your Honor, but I don't follow how that relates to the court's prior question as to whether she admitted conduct.

[00:21:41] Speaker 00:
that would give the district court a basis to impose restitution.

[00:21:46] Speaker 00:
We make no argument that she was not responsible for forged signature commissions.

[00:21:50] Speaker 00:
I think that's set forth clearly.

[00:21:52] Speaker 01:
But you want to stand behind and say, well, you haven't actually proven it to the degree that we think you need to approve it.

[00:21:56] Speaker 01:
Yeah, we admitted that we did this.

[00:21:58] Speaker 01:
We forged signatures.

[00:21:59] Speaker 01:
But the person that you have who provided evidence didn't do a good enough job.

[00:22:03] Speaker 01:
And so no restitution, because you can't prove it.

[00:22:08] Speaker 00:
I don't think no restitution would be the right remedy here.

[00:22:12] Speaker 00:
I think a remedy would be to vacate the restitution order and to remand for further proceedings so that competent evidence could be put before the court and a proper determination of restitution could be made.

[00:22:30] Speaker 04:
Okay.

[00:22:30] Speaker 04:
One last question.

[00:22:31] Speaker 04:
Did you object to the district judge that the

[00:22:36] Speaker 04:
um, forged signatures were not had been wrongfully attributed to them.

[00:22:40] Speaker 04:
Did you, did you make that objection?

[00:22:43] Speaker 00:
The objection below was, uh, joined a joined objection.

[00:22:47] Speaker 00:
So we, and what was that?

[00:22:51] Speaker 04:
What was the precise nature of that objection?

[00:22:54] Speaker 00:
Uh, the objection was to the reliability of the evidence before the court from which both loss and restitution were derived.

[00:23:02] Speaker 00:
I think the government in its brief,

[00:23:04] Speaker 00:
admits makes no argument that the objection was improperly preserved.

[00:23:15] Speaker 06:
Okay well we'll give you time for rebuttal if you like it and then we'll hear from the government.

[00:23:22] Speaker 03:
Thank you.

[00:23:35] Speaker 05:
Good morning, and may it please the court, Ben Petersburg for the United States.

[00:23:39] Speaker 05:
We asked that this court affirm the judgment of the district court below.

[00:23:43] Speaker 05:
We think that the district court, first, acted within its discretion to call on questioned witnesses to resolve this factual objection to the pre-sentence report.

[00:23:54] Speaker 05:
Excuse me, I'm sorry.

[00:23:56] Speaker 06:
And second, what about on that point?

[00:23:59] Speaker 06:
Did the district court need to do more?

[00:24:02] Speaker 06:
We just heard a test argument from opposing counsel that

[00:24:07] Speaker 06:
There was never a specific testimony showing the forgeries here.

[00:24:13] Speaker 06:
Now, I mean, I'd be interested in knowing what is required there, because as I read our case law, it doesn't require, you know, a line item by line item analysis, but it does require, I'm trying to think how we said it, but sufficient evidence.

[00:24:35] Speaker 05:
Sure, and I think the guidelines say you need at least a reasonable estimate of loss.

[00:24:40] Speaker 06:
Yeah, a reasonable estimate of the loss.

[00:24:42] Speaker 06:
So they're arguing, I guess, under Zolt, that this is not a reasonable estimate of the loss because there wasn't specific evidence to tie this spreadsheet to actual fraud that was what was pled to.

[00:24:59] Speaker 05:
And I think the record actually says otherwise.

[00:25:02] Speaker 05:
And the court's methodology was she looked at the undisputed facts in the plea agreements, which stated specifically that all three of the appellants engaged in this forged signature commission fraud.

[00:25:12] Speaker 05:
So as I said, the fraud itself is undisputed.

[00:25:15] Speaker 05:
And the only question was, what is the scope of the fraud that they committed?

[00:25:20] Speaker 05:
We have the testimony, as we heard from the victim in the case, Stephen Casper Bauer, the representative of Alupang Beach Club, who did say,

[00:25:28] Speaker 05:
He hired a handwriting expert and that's where at least the initial universe of suspected fraudulent commissions came from was that person's review of these commission receipts and.

[00:25:45] Speaker 01:
So I have a practical question right here.

[00:25:47] Speaker 01:
Sure.

[00:25:48] Speaker 01:
If this hadn't been resolved by a plea and the government actually had to meet a burden for proving restitution, I mean, you chose not to do that and how this thing went down.

[00:25:59] Speaker 01:
But if it had gone the other way and you actually had to meet a burden, would you have relied on this evidence or would you have done your own investigation?

[00:26:06] Speaker 05:
In terms of restitution specifically,

[00:26:10] Speaker 01:
And the amount of loss.

[00:26:11] Speaker 01:
I mean, I think they're bundled together.

[00:26:12] Speaker 01:
Would you have relied on the data that was provided to provide the calculation, or would you have had the FBI or somebody look at these and do their own sort of analysis of the money?

[00:26:26] Speaker 05:
I think it would be a combination of both.

[00:26:28] Speaker 05:
And we did have a combination of both.

[00:26:31] Speaker 05:
You can see in the record that the district were actually reviewed reports from the United States Secret Service who were involved in this investigation.

[00:26:40] Speaker 05:
There was a task force officer that tracked down some of these sales agents whose names were used on these fraudulent commissions, showed them the commission form and had them confirm, that's not my signature.

[00:26:55] Speaker 05:
I didn't receive that commission.

[00:26:57] Speaker 05:
And the district court judge at ER 376, and those are Luella's excerpts of records, actually says she looked at one of those commission forms that the sales agent confirmed was fraudulent and saw that it was authorized by Luella Jowell.

[00:27:13] Speaker 05:
She saw her signature at the bottom of it.

[00:27:16] Speaker 05:
So we have at least some independent verification that these four signature commissions were in fact fraudulent.

[00:27:25] Speaker 05:
The victim also hired a

[00:27:30] Speaker 05:
I'm not sure if it's a consultant or an employee, but someone named Toshi Ito, who did some additional verification after the handwriting expert identified these forged commissions.

[00:27:41] Speaker 05:
And what she did, and as the victim testified, was she tracked down some of the customers themselves who had made the bookings and confirmed with them that they had actually booked directly with the company and had not used a sales agent, even though there was now a commission form

[00:27:57] Speaker 05:
that showed a sales agent had been added to that reservation.

[00:28:02] Speaker 05:
So you've got some confirmation of the fraudulent nature of these commissions from both the customer side and the sales agent side.

[00:28:12] Speaker 01:
Right.

[00:28:13] Speaker 01:
I understand that.

[00:28:13] Speaker 01:
And I guess I come back to my question of if the government knows that because of how the case is being resolved, it's going to have to meet the burden and prove it.

[00:28:22] Speaker 01:
Do you rely on this kind of evidence or do you do more?

[00:28:27] Speaker 05:
We would rely on that evidence.

[00:28:28] Speaker 05:
That was the evidence that we had.

[00:28:30] Speaker 05:
I mean, the court reviewed the discovery that was produced to the defendants.

[00:28:34] Speaker 05:
It was produced to the United States Probation Office.

[00:28:38] Speaker 05:
That's what took place.

[00:28:39] Speaker 05:
That's what we would have had to have relied on.

[00:28:42] Speaker 01:
I mean, the government could have hired its own expert and done a more thorough analysis.

[00:28:49] Speaker 01:
Perhaps perhaps in hindsight the government could I mean I understand I'm asking you a hypothetical because that's not this case, but I'm just trying to I mean she makes an argument that you know has some logical appeal in the sense of There are reasons to doubt the validity and accuracy of this information because we don't know a lot about how the not the sort of core data, but how it was analyzed and

[00:29:13] Speaker 05:
And I will note, there was no objection to the reliance on this handwriting expert below.

[00:29:19] Speaker 05:
There was no... We're reviewing for plain error in your view.

[00:29:23] Speaker 05:
Absolutely, yes, in that circumstance.

[00:29:26] Speaker 05:
I don't think that argument was actually articulated in the same fashion in the briefs.

[00:29:30] Speaker 05:
That's the first time I've heard that in this case.

[00:29:35] Speaker 05:
So if that had been raised below, perhaps more information would have been produced in order to rebut that.

[00:29:43] Speaker 05:
perhaps by the victim, because the government was precluded in the circumstance.

[00:29:48] Speaker 06:
I mean, it just seems to me one of the things we're grappling with here is ZULP.

[00:29:54] Speaker 06:
I mean, I come back to that.

[00:29:55] Speaker 06:
It says the court need not make its loss calculation with absolute precision.

[00:30:00] Speaker 06:
Rather, it need only make a reasonable estimate.

[00:30:04] Speaker 06:
But I mean, that leaves a lot of latitude.

[00:30:07] Speaker 06:
But I guess the question we have to ask is, is this beyond

[00:30:12] Speaker 06:
a reasonable estimate.

[00:30:13] Speaker 06:
I mean, I think you would agree this wasn't done with absolute precision in the sense that you didn't go through 2,000 transfers and say this was fraudulent, this was fraudulent, this was fraudulent.

[00:30:28] Speaker 06:
You would agree that wasn't done, but you think that this was a reasonable enough estimate that it satisfies our legal requirement.

[00:30:35] Speaker 05:
Right.

[00:30:35] Speaker 05:
We think that the court's methodology does satisfy that reasonable estimate that we do.

[00:30:41] Speaker 05:
testimony from the victim.

[00:30:44] Speaker 05:
The victim provided a separate affidavit that asserted essentially the same loss amount.

[00:30:51] Speaker 05:
And the court confirmed that there was at least some independent verification of these forged signatures.

[00:30:59] Speaker 06:
OK, so then let's get into kind of the procedural arguments that are being made.

[00:31:06] Speaker 06:
Number one, Joshua is, do I have it right, Joshua was not

[00:31:11] Speaker 06:
It was not in his PSR.

[00:31:14] Speaker 06:
Correct.

[00:31:16] Speaker 06:
What impact does that have, if any?

[00:31:19] Speaker 05:
I don't think it has any impact.

[00:31:21] Speaker 05:
Why?

[00:31:23] Speaker 05:
Because of the way the court handled it.

[00:31:26] Speaker 05:
Now, it certainly came as a surprise to the defendants that the probation officer amended what had been a final pre-sentence report at the sentencing hearing.

[00:31:35] Speaker 05:
And the defendants raised that issue, asked the court for a continuance, and the court granted that continuance and gave them something like one week to file objections to these amended calculations.

[00:31:48] Speaker 05:
scheduled an evidentiary hearing to resolve any of those objections almost two weeks later.

[00:31:54] Speaker 05:
And so these appellants had an opportunity to challenge those new calculations and challenge the facts that supported the new calculations.

[00:32:05] Speaker 05:
I'm not sure what else the court could have done differently that would have provided more due process, as is

[00:32:16] Speaker 05:
I guess asked for by the other side.

[00:32:18] Speaker 05:
I mean, she could have provided more time, more than it was about 12 days.

[00:32:24] Speaker 05:
Sure.

[00:32:24] Speaker 05:
And I think that is a notable point.

[00:32:28] Speaker 05:
When the evidentiary hearing came around, the courts announced its intentions and said, I'm, you know, the government is bound by its stipulations in the plea agreement.

[00:32:36] Speaker 05:
The court is going to be the one to call the witnesses and I'm going to call the probation officer.

[00:32:42] Speaker 06:
No one objected to that process.

[00:32:44] Speaker 06:
Can you help me understand?

[00:32:46] Speaker 06:
It may not be relevant because I think the government acted appropriate here.

[00:32:49] Speaker 06:
They agreed to $40,000.

[00:32:52] Speaker 06:
They told the district court, we've agreed to $40,000.

[00:32:54] Speaker 06:
We're not going to do... The district court knew that if it wanted to go above that, it was on its own.

[00:32:59] Speaker 06:
The government couldn't... So I think the government acted appropriately.

[00:33:03] Speaker 06:
But why... The government always intended to get a higher restitution amount.

[00:33:10] Speaker 06:
Correct.

[00:33:12] Speaker 06:
And maybe I'm asking too many questions here, and if I am, forgive me and you don't need to answer them.

[00:33:17] Speaker 06:
But was the 40,000 because of a negotiation to get the plea deal done or was it just, I guess in some sense, you didn't care as much about the sentencing.

[00:33:27] Speaker 06:
I mean, it didn't have a huge impact on how long they were.

[00:33:31] Speaker 06:
I mean, one was in for 24 months, the others were in six months.

[00:33:33] Speaker 06:
I guess if the 40,000 had been accepted, they could have gotten away with no prison term, which apparently the government was okay with.

[00:33:43] Speaker 06:
The government basically was taking the position, we don't care about a prison term.

[00:33:48] Speaker 06:
We just want to make sure that at the end of the day, the restitution amount is there.

[00:33:52] Speaker 06:
That was the calculation that went into this.

[00:33:54] Speaker 06:
And I think that's a fair characterization of what took place.

[00:33:57] Speaker 05:
I know there was some discussion amongst counsel when they objected to this, that, hey, this was a negotiated term.

[00:34:03] Speaker 05:
We spent a lot of time working this out with the government.

[00:34:07] Speaker 05:
you know, without going too far outside the record, the government has some practical considerations in making this.

[00:34:12] Speaker 05:
And one of the key goals was to preserve the victim's ability to seek full restitution in the case.

[00:34:19] Speaker 04:
So did the government have a restitution figure in any of the plea agreements?

[00:34:25] Speaker 04:
No.

[00:34:26] Speaker 04:
Was there a restitution figure in the original PSR?

[00:34:30] Speaker 05:
I don't believe so.

[00:34:33] Speaker 04:
But the figure would have been the $40,000 that was simply the limit in the guidelines.

[00:34:39] Speaker 04:
It was actually $17,000 was the loss attributable to Joshua.

[00:34:44] Speaker 04:
Correct.

[00:34:44] Speaker 04:
And so the rest of this, what ends up being over $240,000 was augmented to $17,000 that everybody agreed to.

[00:34:53] Speaker 04:
So did it appear that

[00:34:56] Speaker 04:
that the government was going to agree to only a $17,000 restitution in the first PSR?

[00:35:03] Speaker 05:
I would point you to the plea agreements in the case.

[00:35:05] Speaker 05:
And in the restitution provision, there's a carve out.

[00:35:08] Speaker 05:
And it says specifically that the government may seek a restitution amount higher than the loss amount stipulated to earlier in the plea agreement.

[00:35:19] Speaker 05:
So there's sort of a carve out.

[00:35:22] Speaker 05:
You were not bound by the $17,000 figure.

[00:35:26] Speaker 05:
Not for restitution purposes, no.

[00:35:28] Speaker 05:
And we did file a restitution memorandum that saw off that higher figure.

[00:35:34] Speaker 05:
And after the probation officer amended the final PSR and at least two of the defendants filed written objections, the government also filed a response and said, look, we

[00:35:45] Speaker 05:
We're bound by our plea agreement.

[00:35:47] Speaker 05:
We're not going to advocate for a higher loss amount, but we do still intend to seek the full amount of restitution.

[00:35:53] Speaker 04:
Yeah, I'm looking at I'm looking at I think I think this must be Joshua's and paragraph 13 says United States and defendant hereby stipulate Defendant shall pay restitution jointly and severally in an amount to be determined by the court at sentencing or to restitution hearing thereof.

[00:36:08] Speaker 04:
So I don't see that it says

[00:36:11] Speaker 04:
anything about the United States seeking a higher figure.

[00:36:14] Speaker 04:
There's just no figure, there's just no figure reference there at all.

[00:36:18] Speaker 04:
I don't know whether, and I just have Joshua sitting here in front of me, I don't know whether the others.

[00:36:23] Speaker 05:
Sure, and that's the language.

[00:36:25] Speaker 05:
That's at ER 473, and I think that the next sentence there is that the parties understand and agree that the restitution calculation is separate and apart from the lost amount calculation.

[00:36:34] Speaker 05:
That language does not appear in the one that I'm looking at.

[00:36:36] Speaker 04:
I'm looking at 462.

[00:36:45] Speaker 06:
So they may be different.

[00:36:47] Speaker 06:
I may be looking at slightly different.

[00:36:50] Speaker 05:
I do have this.

[00:36:51] Speaker 05:
This says United States for America versus Joshua Hans about Joe.

[00:36:54] Speaker 05:
And so this is Joshua's.

[00:36:58] Speaker 04:
The agreement and it is I'm sorry, I'm sorry, I've got salaries.

[00:37:02] Speaker 04:
OK, I've got I've got salaries and she does it.

[00:37:05] Speaker 04:
Hers does not have that language in it.

[00:37:06] Speaker 04:
I'm sorry.

[00:37:11] Speaker 05:
I'm not sure why there's a discrepancy, but both the Luella Jau and the Joshua Jau plea agreements do say, there's another sentence that says the parties understand that the restitution amount could be greater than the loss amount calculated.

[00:37:23] Speaker 06:
Well, to a certain degree, I'm trying to, maybe it doesn't matter because they haven't made that argument, I guess I'll ask them on rebuttal, but they haven't made the argument that the plea agreement limited, you know, that the restitution just has to be capped at 17,000 or 40,000 or whatever.

[00:37:40] Speaker 06:
was in there, they haven't made that argument.

[00:37:44] Speaker 06:
They've just said whatever you did above that hasn't been proven.

[00:37:49] Speaker 05:
Right, correct.

[00:37:49] Speaker 05:
I think that's fair characterization.

[00:37:54] Speaker 05:
I did want to speak to this disqualification issue a little bit.

[00:37:59] Speaker 05:
I think one of the key points here is that none of the appellants have pointed to

[00:38:07] Speaker 05:
anything in the record that shows the court acted with partiality or bias.

[00:38:12] Speaker 05:
They haven't pointed to a specific line of questioning, you know, that the judge was being abusive or interrupted or leading or directing the examination towards a particular conclusion.

[00:38:23] Speaker 05:
You know, I think that those contentions are really totally unsupported by the record.

[00:38:29] Speaker 05:
They've asserted that the judge prejudged or predetermined the loss amount.

[00:38:34] Speaker 05:
But the record really shows that the district court only learned about these forged signature commissions through the stipulated facts in the plea agreement and this forged signature commission chart in the PSR.

[00:38:45] Speaker 05:
And really, it was only natural for her to ask a question about why there was this chart with thousands of entries in the PSR that wasn't actually factored into the guidelines.

[00:38:58] Speaker 05:
You know, if she had actually prejudged.

[00:39:01] Speaker 06:
So wait, you just said different.

[00:39:04] Speaker 06:
She asked why there was a chart in the PSR with all these entries.

[00:39:09] Speaker 06:
What we heard from Mr. McDonald, I thought, was that she called the officer, told him to amend the PSR and add that.

[00:39:20] Speaker 06:
What actually happened there?

[00:39:23] Speaker 05:
You know, I think the testimony from

[00:39:27] Speaker 05:
from the probation officer himself is that the judge called and asked, you know, why is this in here?

[00:39:34] Speaker 05:
And do you have a total?

[00:39:36] Speaker 05:
You know, because there's all these entries.

[00:39:37] Speaker 05:
So the chart wasn't summed.

[00:39:39] Speaker 06:
OK.

[00:39:39] Speaker 06:
So the district court judge did not actually request that the chart be created.

[00:39:45] Speaker 06:
Maybe I'd misunderstood.

[00:39:46] Speaker 05:
The chart was already in the draft PSR that was issued in something like July of 2024 before the sentencing in September.

[00:39:54] Speaker 05:
So at least in the PSRs for Luella, Zhao, and Sayori, Zhao.

[00:40:01] Speaker 01:
The only question that I have on this point is, I mean, we know from our case law and I think the Supreme Court as well that sentencing courts have broad discretion.

[00:40:09] Speaker 01:
We've talked a little bit about that in terms of what they can consider at sentencing and even

[00:40:15] Speaker 01:
if they feel like the party's presentation has been inadequate in some way, the court can ask for more.

[00:40:21] Speaker 01:
The one thing that gives me somewhat pause, and this is out of a Supreme Court case, I don't know how to pronounce it, I think it's Caricia, anyways, says a judge cannot distort or add to the evidence.

[00:40:35] Speaker 01:
So I assume that your position is that the district judge here in how she handled this hearing did not add to the state of the evidence, but I would like you to explain why you think that's true.

[00:40:44] Speaker 05:
I think she clarified what was already present in the PSR.

[00:40:48] Speaker 05:
She asked questions about this chart.

[00:40:51] Speaker 05:
Where did it come from?

[00:40:52] Speaker 05:
What does it stand for?

[00:40:53] Speaker 05:
Why should I consider that?

[00:40:56] Speaker 05:
Or should I consider that as part of the loss amount in the case?

[00:41:00] Speaker 05:
So I don't think, in that sense, certainly didn't distort anything.

[00:41:03] Speaker 05:
But I don't think that added anything necessarily either.

[00:41:10] Speaker 05:
And I'm not exactly sure where that, I'm not sure how to pronounce that either.

[00:41:14] Speaker 05:
I'm not sure if that's in this context of a trial before a jury, or if that applies the same way at sentencing, where the court does have much broader discretion and authority.

[00:41:29] Speaker 01:
I read the case.

[00:41:31] Speaker 01:
I can't remember 100%.

[00:41:32] Speaker 01:
But I'm pretty sure it's sentencing, because we give a district court a lot of discretion in that space.

[00:41:36] Speaker 01:
Because ultimately, that sentencing decision

[00:41:39] Speaker 01:
lies with the court.

[00:41:42] Speaker 01:
So you have more leeway in terms of burdens and intervening in the proceedings than you do in the trial.

[00:41:49] Speaker 05:
Absolutely.

[00:41:49] Speaker 05:
And this court has recognized that in, for example, USV Allen and USV Wing, two of the cases that we cited in our brief that are, I think, remarkably similar circumstances where

[00:42:02] Speaker 05:
The court wanted to hear testimony on enhancements that the government had either agreed didn't apply or didn't address in the plea agreement, and so was prohibited from advocating for.

[00:42:12] Speaker 05:
In both cases, the court at least did some of the questioning.

[00:42:17] Speaker 05:
In Wing, the court did all of the questioning, called a probation officer to talk about an obstruction of justice enhancement.

[00:42:23] Speaker 05:
And this court found no error in both circumstances.

[00:42:27] Speaker 05:
And I don't see how we can meaningfully distinguish what took place with the district court here and what took place in those two cases.

[00:42:39] Speaker 05:
I see I do have some time remaining.

[00:42:40] Speaker 05:
I'd be happy to answer any additional questions otherwise.

[00:42:42] Speaker 05:
No, I appreciate it.

[00:42:43] Speaker 05:
Thank you very much.

[00:42:44] Speaker 05:
I think you've covered all the topics.

[00:42:48] Speaker 05:
Thank you very much.

[00:42:49] Speaker 05:
We ask that the court affirm the district court below.

[00:42:51] Speaker 06:
Thank you.

[00:42:52] Speaker 06:
All right, we'll walk through again then for rebuttal and we'll start again with Ms.

[00:42:56] Speaker 06:
Conroy.

[00:42:59] Speaker 02:
Just briefly, Your Honors, in regards to these amounts contained in paragraph 30 of the PSR, this is not a case about clarification.

[00:43:10] Speaker 02:
This was essentially a material alteration to the guidelines.

[00:43:14] Speaker 02:
And what we're saying is the error occurred in that the district court adopted those new guidelines and the enhancement and anchored that as the basis of its sentence.

[00:43:24] Speaker 02:
Instead, what should have happened was the notice was complied with the aggregation and the basis for the aggregation, not just the math occurred, and then the new guidelines applied.

[00:43:36] Speaker 02:
And for that reason, we would ask for a limited remand.

[00:43:39] Speaker 06:
Okay, thank you.

[00:43:41] Speaker 06:
And Mr. McDonald?

[00:43:45] Speaker 06:
just real quick your honor so it's our position that the district court added to the evidence can I ask a question because maybe I misunderstood your argument I thought you'd said before that the district court called the probation officer and asked him to add this chart into the pre-sentencing report maybe I misunderstood that I'm sorry your honor I apologize

[00:44:10] Speaker 07:
apologize if I wasn't clear.

[00:44:12] Speaker 07:
So my comment was that, so we inquired with the probation officer, sir, why did you add this section 32 paragraph?

[00:44:18] Speaker 07:
It was never in our pre-sentence report.

[00:44:21] Speaker 07:
The probation officer's response was, yes, well, I did get a call from the judge, right?

[00:44:26] Speaker 07:
So the question was, what caused you to add that paragraph 32, his response, yes, well, I did get a call.

[00:44:32] Speaker 06:
There's paragraph 32 and then there's a chart or are they the same?

[00:44:37] Speaker 07:
They're the same, your honor.

[00:44:38] Speaker 06:
Okay.

[00:44:39] Speaker 07:
That chart, paragraph 32, was never included in our final PSR.

[00:44:45] Speaker 07:
Only on the day of the sentencing.

[00:44:52] Speaker 03:
Okay.

[00:44:53] Speaker 03:
Go ahead.

[00:44:54] Speaker 03:
Sorry, I didn't mean to cut off your argument.

[00:44:57] Speaker 06:
That's it, Your Honor.

[00:44:58] Speaker 06:
Okay.

[00:44:59] Speaker 06:
Thank you.

[00:45:02] Speaker 06:
Thank you, Mr. McDonald.

[00:45:04] Speaker 06:
And then Ms.

[00:45:05] Speaker 06:
Bell.

[00:45:06] Speaker 00:
If I could make three points, Your Honor.

[00:45:08] Speaker 00:
The first is as to the standard of review, I would draw the court's attention to page 18 of the government's brief, where the government takes the position that Ms.

[00:45:17] Speaker 00:
Sayuri Zhao objected to the forged signature commissions.

[00:45:20] Speaker 00:
Nowhere in its discussion of restitution does the government claim waiver or that Plain Air review applies.

[00:45:27] Speaker 00:
And so our position is that the government has waived waiver.

[00:45:31] Speaker 00:
So that's the first point.

[00:45:32] Speaker 00:
As to the second, government council explained that there was nothing in Ms.

[00:45:38] Speaker 00:
Zhao's plea agreement that bound the government to a particular restitution number.

[00:45:43] Speaker 00:
And I think in that case, it calls into even greater question the government's decision not to put on any evidence of its own.

[00:45:51] Speaker 00:
This is a case where the Secret Service was involved only at the very beginning and interviewed two witnesses.

[00:45:58] Speaker 00:
That's simply insufficient in this case.

[00:46:02] Speaker 00:
to support a $180,000 restitution order.

[00:46:07] Speaker 00:
That would be the second point.

[00:46:09] Speaker 00:
And the third, you know, I hear the court grappling with the issue of how the case law has given district courts some discretion.

[00:46:17] Speaker 00:
A restitution order does not need to be fashioned with absolute precision.

[00:46:21] Speaker 00:
I did want to draw the court's attention to United States versus Walk9.

[00:46:27] Speaker 00:
The pin site is 557.

[00:46:29] Speaker 00:
And this is, I'm just going to read very briefly.

[00:46:34] Speaker 00:
I'm sorry, I'm just finding the police.

[00:46:41] Speaker 00:
So the summary would be the victim affidavit.

[00:46:45] Speaker 00:
The summaries only listed the loss claimed, e.g.

[00:46:48] Speaker 00:
Joe Cavallo, attorney at law, and the amount of the loss, e.g.

[00:46:52] Speaker 00:
250,000.

[00:46:53] Speaker 00:
These law summaries did not contain itemized lists indicating, for example, the time spent by the attorney, the activities engaged in by the attorney,

[00:47:03] Speaker 00:
and the attorney's credentials and billable rate.

[00:47:06] Speaker 00:
In light of the remedial purposes of the NVRE, our precedent grants district courts a degree of flexibility in accounting for a victim's complete losses.

[00:47:15] Speaker 00:
Despite this flexibility, Section 3664 minimally requires that the facts be established by a preponderance of the evidence.

[00:47:23] Speaker 00:
And it continues from there.

[00:47:24] Speaker 00:
And our position is that the facts were not established by a preponderance of the evidence in this case,

[00:47:31] Speaker 00:
given that the district court relied upon testimony of a finance who could not attest that in fact, $180,000 in restitution derived from forged signatures from the forged signature commissions because of the evidence before the court was unreliable.

[00:47:49] Speaker 00:
The district court abused its discretion and finding that the government has met its burden by a preponderance of the evidence.

[00:47:56] Speaker 06:
Okay.

[00:47:56] Speaker 06:
Thank you.

[00:47:57] Speaker 06:
Thank you to all counsel.

[00:47:58] Speaker 06:
Thank you to the defense counsel for coordinating the arguments.

[00:48:02] Speaker 06:
And your clients have been well served by your arguments.

[00:48:05] Speaker 06:
So thank you for attending.

[00:48:07] Speaker 06:
It's been helpful to the court.

[00:48:08] Speaker 06:
And thank you to the government.

[00:48:09] Speaker 06:
The case is now submitted, and that concludes our arguments for the day.

[00:48:13] Speaker 06:
Thank you, Your Honor.

[00:48:14] Speaker 06:
All rise.