All right. The next case we're going to hear is United States versus Vice and Mr. White. Mr. Vice or Mr. White, however you wanted to go, you can handle this case. May please court. My name is Charles White from Greensboro, North Carolina representing Arthur Weiss, the appellate in this matter. It's good to see your honors. Judge the first issue before the court is the trial courts enhancement of Mr. Weiss' punishment in this complex financial scheme for occupying a position of trust simply by holding himself out to the public and to the alleged victims in the case or the victims in the case as a CPA. The court, the standard review courses, clear error for factual findings and the appellate does not dispute the fact that he did hold himself out as a CPA in his business documents in his email address and things of that nature. The reviews to Nova, however, the way the court applied the funding that he held himself out as a CPA and that that constituted a position of trust. The court relied heavily on this course decision in the case of United States versus Iraq, excuse me. And in that case judge, there was a bondsman involved. She held herself out as a bondsman to the older victim in that matter who hired her in that capacity as a bondsman. She was not in fact a bondsman, but that is of no importance in the analysis. The bondsman then provided her with personal information, social security numbers, things of that nature, which she then used to defraud him. She robbed him blind, literally
. She used his lines of credit and things to that effect. But the relationship between the victim and the defendant was that of client to bondsman. And the court conducted a long analysis, the discord conducted analysis of the requirements of bondsman and the safekeeping record keeping requirements and analogized that to those employers and other people of position of trust and held that yes, she did occupy position of trust with regard to that victim. Brack also distinguished this course to say in Kaplinger, which the Pelletwood submit is much more analogous to this situation. In United States versus Kaplinger, Kaplinger held himself out as an accomplished position falsely again, citing numerous male order degrees and things of that nature. He used that through agents to induce people to invest in a miracle drug that was a reputed to be successful, excuse me, in controlling AIDS and HIV. My own personal experience, if I were going to a doctor to give me investment advice, it might be the last person I'd go to. That's yours too. My father is a doctor, I don't know, so I'm not positive I disagree with that. Well, I'm the criticism of the doctor. I understand that that's great. And that is what's the point in Kaplinger judge that the fact that he himself out as position did give credibility to his assertion of this one. And a person who is told that he's going to that Mr. Weiss is going to file the tax data, the tax returns, the information, the money to the federal government that you, the fact that he's a CPA, which would make him more trustworthy and carrying that out than just some any person off the street. That's not an logical assumption, judge, but there are some distinctions. The fact he did not prepare the tax returns. He didn't do the, the trust would be in following through in taking the money, collecting the money and filing it with the government, filing the necessary information. And they relied on him for that as a matter of fact, he brought that function into his operation from others in order to have the benefit of the cash flow, of course
. And the judge that could make sense, but there was no evidence to that effect in the record. There was nobody testified that I hired this particular company because Mr. Weiss is a CPA. Oh, no, but he did hold himself out as a CPA and you agree that in a brief that he, yes, he did. So the question is whether holding himself out as a CPA, whether that would create some confidence in the people that he would follow through with his undertaking to take care of these tax matters, which is collecting them, preparing the form and filing with the federal government. I think that's precisely analogous to the situation in Kaplinger, where his expertise as supposedly a world renowned physician and research physician doesn't have anything to do with investments. It did in this case, judge, because they're investing in a miracle drug that he vouched. Would he said this is going to be big? We use it in South America. It's going to be successful. It's going to be multi-million dollar corporation or patent rather. And the trust reposed in him as a physician by the investors, by assuring them that this investment is going to be successful, was not enough to establish this enhancement under the analysis in Kaplinger. And that's the distinction here, judge, the fact that he held himself out as a CPA. In fact, there's actually no evidence in the record that anybody even relied on that anybody, well, there's evidence that they knew he was a CPA. But there's no evidence that anybody was induced to invest in the scheme because he was a CPA. So the direct evidence for us to pose a finder of fact to make that inference? I don't believe the finder of fact did in this case, Judge. The trucker disser, I can easily conclude that the fact he held himself out as a CPA, enhanced his business credentials to those who are willing to give it business. But he failed to find that the CPA relationship existed between these victims and Mr. Watt
. And that was the requirement for the person. I don't think the court suggested that he had to be a CPA carrying out an accounting function hired for that purpose. The fact that distinguishes, I think, this record would have said that distinguishes Kaplinger from this, is that the function on which the clients relied, that is preparing the tax matters, collecting the tax money, filing it. And carrying out a function that's very important on a routine basis, is the type of function with which CPAs are experienced and do do. And he just happened to be doing it because that was the nature of his business. And he did it as part of his business offering. It was not a CPA offering, it was a little bit broader. It was an employment operation. But what did the district courts say in connection with that finding? That was the statement that appears to appear on page 153 of the Joint Appendix. That is the best indication that I could find the court's addressing that aspect. I believe that's correct, Your Honor. And now it starts on 151.152 and goes to 155, I believe that was on 153. I can easily conclude that the fact that he held himself out as a CPA enhanced his business credentials to those who were willing to give business to him. He would be subject to less supervision, et cetera. If you were a CPA, he had met certain standards of the state and so forth. He was able to avoid oversight both thorough through his continuing education. And that he had the has to receive every year in some 40 or so hours
. He's a member of the fashion. Just a question, to traditional notice of those facts and appropriately so, but the court in Kaplanger, however, said that's not enough. The analysis has to be as between the doctor and Kaplanger was not an investment advisor. He was not a stockbroker. He was not a banker. He was a doctor. While people might rely on the fact that the drug was a good drug, I'm not sure they would rely on the fact or could rely on the fact that he was a smart investment advisor and value the stock and all that other business that goes with stock decisions. But they did in fact rely on his expertise, alleged expertise as a research professional and his prediction that this drug was going to be successful in the spread world law. I understand your point. And I guess what you're really putting up the two mile posts that we have to look at, the Bracken and the doctor, and see where this falls closer to, I gather. And that's really where we're going to start. Precisely. Exactly right. And again, I would say that the facts in this case are much closer to Kaplanger and the Morse case. The 11th Circuit case cited in Kaplanger as well, where the gentleman told himself as an attorney. That's perhaps addressed as your honor's point that Mr. Wise was a CPA and doing CPA type things. And more, as your honor knows, the attorney actually put money in his trust account
. And he was a non-practicing attorney. I'm not sure exactly what that means. But in that case, they did find that that relationship was not enough either because then because he says he's an attorney doesn't mean he has that kind of that he occupies a position of trust with regard to the law. And that's the same case we have here. And I see him just about running out of time. Go ahead. Yeah. Thank you. And again, just the primary point of this argument is that the requisite relationship did not exist between these investors and Mr. Wise. Wise, certainly not between the companies who utilized his company's services. And certainly not between BB&T for the bank fraud and himself or between the IRS and himself. He certainly wasn't there accounting anyway. Shape or form. Thank you. Thank you. Mr. Allen Wood
. May it please the Court. Todd Allen Wood, vice president of the American. Here honors. The case law says that the central purpose of section 3v1.3 is to penalize the defendant's take advantage of positions that provide them with the freedom to commit a difficult to detect wrong. That is this case. Mr. Wise took advantage of his position as a purported CPA who managed a professional employee organization to commit the fraud and his position provided him with the ability to commit a difficult to detect crime. Your honor, you already judge, Neymar, you already honed in on some of the district court's findings as to an accountant. But I wanted to layer on to this that this isn't merely an accountant. I think that's all quite relevant. But it's also that he's braiding as a professional employee organization and the district court made that finding. North Carolina has a statute that's 20 pages long on professional employer organizations and it is remarkably similar to the act that is the focus of Brak. So if we look at Brak, Brak says we have to look for evidence indicating a fiduciary or personal trust relationship that exists between the victim and the defendant. And in Brak, it says we first examine the legal responsibility that the state of North Carolina poses. There they said the statutory provisions that govern bail bondsmen make clear that bail bondsmen in North Carolina are subject to a comprehensive system of state regulation. That's true of accountants and that's true of people operating legally professional employee organizations. I should say here Mr
. Weiss never registered these as PEOs who was in blatant violation of the law on that matter. But these were PEOs. Brak case says that bail bondsmen are required to apply for and obtain a license from the North Carolina Commissioner for insurance. That's the exact same thing with PEOs. They are required to obtain a license from that same entity. There are various qualifications in Brak that are identical for PEOs. They all bondsmen must maintain a deposit of securities. A PEO has to have a hundred thousand dollar security bond. In this kind of relationship, there's more trust than even a normal accounting relationship. The way this scheme worked was that if there is judge Diaz enterprises, judge Neymire enterprises and judge Hamilton enterprises, a normal payroll company, I would be doing it for each of you in your names. The way a PEO works is we pull all of your employees in now they're under Ellenwood enterprises and I am responsible for filing the taxes and getting the workers comp. So the only tax return that's going to be filed is a Form 941, the quarterly tax return. But it's going to say Ellenwood enterprises. And the reason why that's so important is that if you actually try to double check and contact the IRS and say I'd like to see confirmation that the employment tax were paid for. For judge Diaz enterprises, you're not going to get anywhere because there is no filing for judge Diaz enterprises. It's under my name. So the IRS is not going to recognize you as somebody who can get access to my information. Where do you get from a thing under your name to it being credited to the company involved? Because the employees are all being subsumed under this and employee lease relationship, that's what the credit is
. The IRS doesn't know but it's someone's IRS doesn't care because what's going to be included are all the W2 information. So the individual employees are all going to be connected up. It's just not going to be in the name of judge Diaz. It's going to be in the name of Ellenwood enterprises. But all 10 of your employees, 10 of yours and 10 of yours, there will be 30, there will be aggregated and there will be a W2. I guess it would under the law for the IRS, it would have to be that the employees were your employees. Yes. And treated as your employees and it would basically be loaned out like Kelly persons to these other firms. That's exactly right. It's an employee leasing operation. Even though there's control of these other corporations, it seemed to me that could someday be challenged under the law. I have a request. I agree with you, Your Honor. It seems like it's right for treated as employees of vice. Yes. And this is what he told clients who actually reached out to him. So they weren't just trusting in, hey, I think my account is doing my payroll taxes. Hope he's not stiffening me on the employment taxes
. WH services. I've pardoned the interrupting. But does all pursuant to the North Carolina Act? No. The North Carolina Act governs the PEOs. Yes, that is true. The part that I'm talking about, about how the IRS will treat it, that's IRS regulations. And so they interact. But you're right. Yes, this is pursuant to the North Carolina. WH services. At first, vice directed paychecks, the outside third party payroll provider, to send the payroll reports to him. And only send the paychecks to the company. He explained to the representative of the company that he made the switch because employer alternatives, his company, was the company that reported all the employees. TSE logistics. When a representative called Mr. Weiss and asked him about employment tax returns for various quarters, he said that he filed returns for his employees. The TSE logistics did not have employees. And that TSE had no filing requirements
. This is in the PSR at Paragraphs 27 and 32. Another company, Vintage, contacted Mr. Weiss about quarter-length employment tax returns. These are people who are used to seeing this every order from paychecks. So they're contacting him saying, where's my copy of the 941 that filed? It's not filed your name. It's filed under my name. It's all good. Weiss assured the rep that he had filed the tax returns and made the tax payments for vintage workers, along with the workers of his other clients, under his name. One client went even farther. Give me a copy of the 941. And in the record, it paid $194.195. There are hand-written copies of forms 941. And if you look at it, it doesn't say on the top. These are the employees for the person who was reaching out with M-coignan sons. It doesn't say M-coignan sons. It says Blue Ridge Business Services. So he is portraying to this client. There's not separate 941 for every company. Here's the 941 for Mumpiny. Got this very large number on here. Over a million dollars. You're embedded in that. I paid the taxes. He sent six check copies along with that. None of those checks actually went through. So even... Are you suggesting that if we agree with you that the focus should be on the duties and obligations and trusts that were acquired as a result of his being the... The CEO or manager of this professional employment organization, not necessarily his status as a CPA? No, no, no, no, no. I think that I'm just saying this is in addition to it. And I think the district court judge.
. There's not separate 941 for every company. Here's the 941 for Mumpiny. Got this very large number on here. Over a million dollars. You're embedded in that. I paid the taxes. He sent six check copies along with that. None of those checks actually went through. So even... Are you suggesting that if we agree with you that the focus should be on the duties and obligations and trusts that were acquired as a result of his being the... The CEO or manager of this professional employment organization, not necessarily his status as a CPA? No, no, no, no, no. I think that I'm just saying this is in addition to it. And I think the district court judge... That's not the focus of the... The district court judge focused on the CPA part for sure. It might have to. I'm not sure just buying services from a company. An independent company is a position of trust. And I think these two go together. That's what my point is. The district court did focus on the CPA and I don't think that was misplaced. I'm just adding on to this to say this is even more egregious than the typical accountant who says I'll prepare your payroll and should be sending you 941s. I mean here I think you are truly trusting that he is going to file the 941s because of his position as a CPA and this setup as a PEO. Even if you want to double check, you can't. If you call the IRS they're going to say, are you a representative of Blue Ridge Business Services? Do you have a power of attorney? Who are you? You can't get this information. And the district court did have findings on this on page 151 in the sentencing hearing. I'm not sure you can keep arguing it but I'm not sure that every element that you push in that direction doesn't undermine the other direction. Because the tradition is that to the extent that these people relied on a corporate service that was advertised by the corporation, unless the corporation is in a trust situation, a situation like a taken care of in a state or something like this
.. That's not the focus of the... The district court judge focused on the CPA part for sure. It might have to. I'm not sure just buying services from a company. An independent company is a position of trust. And I think these two go together. That's what my point is. The district court did focus on the CPA and I don't think that was misplaced. I'm just adding on to this to say this is even more egregious than the typical accountant who says I'll prepare your payroll and should be sending you 941s. I mean here I think you are truly trusting that he is going to file the 941s because of his position as a CPA and this setup as a PEO. Even if you want to double check, you can't. If you call the IRS they're going to say, are you a representative of Blue Ridge Business Services? Do you have a power of attorney? Who are you? You can't get this information. And the district court did have findings on this on page 151 in the sentencing hearing. I'm not sure you can keep arguing it but I'm not sure that every element that you push in that direction doesn't undermine the other direction. Because the tradition is that to the extent that these people relied on a corporate service that was advertised by the corporation, unless the corporation is in a trust situation, a situation like a taken care of in a state or something like this. It's not a trust situation. The trust situation is created by the professional holding out. Well, he's entered into such a close relationship with him that the employees are purported to be his. The basis that suggests that a corporate client relationship, even though close, is a position of trust. No, no, you're on her. I don't think there are. And I agree with you that I'm not running from the CPA position. I think the district court really articulated. But I'm suggesting that you're emphasizing an aspect that doesn't seem to help your cause much. Well, there are three factors in looking at the abuse of a position of trust. One factor is the special duties are accessed to info not available to others. That applies to CPAs. I think that does apply to people who are running PEOs. He has special duties and access to info that others don't. The extent of the defendant's discretion, the district court found that he had the power of a free decision or latitude within certain legal bounds here to prepare the tax returns. And whether the defendant's acts indicate that he's more culpable than similarly situated criminal actors, there I think the fact that he was not just a CPA but also operating a CEO. That does go to how much more culpable as than a similarly situated criminal actor because he's not just a CPA doing the returns and not filing it by layering it through the PEO. He, to me, he's doing something more culpable and makes him eligible for the trust enhancement
. It's not a trust situation. The trust situation is created by the professional holding out. Well, he's entered into such a close relationship with him that the employees are purported to be his. The basis that suggests that a corporate client relationship, even though close, is a position of trust. No, no, you're on her. I don't think there are. And I agree with you that I'm not running from the CPA position. I think the district court really articulated. But I'm suggesting that you're emphasizing an aspect that doesn't seem to help your cause much. Well, there are three factors in looking at the abuse of a position of trust. One factor is the special duties are accessed to info not available to others. That applies to CPAs. I think that does apply to people who are running PEOs. He has special duties and access to info that others don't. The extent of the defendant's discretion, the district court found that he had the power of a free decision or latitude within certain legal bounds here to prepare the tax returns. And whether the defendant's acts indicate that he's more culpable than similarly situated criminal actors, there I think the fact that he was not just a CPA but also operating a CEO. That does go to how much more culpable as than a similarly situated criminal actor because he's not just a CPA doing the returns and not filing it by layering it through the PEO. He, to me, he's doing something more culpable and makes him eligible for the trust enhancement. I'd like to move on to the second topic, which was the loss calculation and whether it was properly done and included all relevant conduct here. The Mr. Wises argument is that basically 2B doesn't include income taxes and there's no support for that being in there. I think here the district court correctly included the entirety of the harm caused to the IRS by Mr. Wises fraud scheme. It's a little unusual that it's not a pure tax case. This was charged as wire fraud because each transaction, each... I thought there was a tax violation. There is a tax violation in there too. Oh yeah, and the tax violation, the loss is determined under 2T. It is under 2T but we went here under 2B. Well, I understand but it doesn't mean there wasn't a loss. That's right. That's basically the point is that the wire fraud is going to..
. I'd like to move on to the second topic, which was the loss calculation and whether it was properly done and included all relevant conduct here. The Mr. Wises argument is that basically 2B doesn't include income taxes and there's no support for that being in there. I think here the district court correctly included the entirety of the harm caused to the IRS by Mr. Wises fraud scheme. It's a little unusual that it's not a pure tax case. This was charged as wire fraud because each transaction, each... I thought there was a tax violation. There is a tax violation in there too. Oh yeah, and the tax violation, the loss is determined under 2T. It is under 2T but we went here under 2B. Well, I understand but it doesn't mean there wasn't a loss. That's right. That's basically the point is that the wire fraud is going to... In the money laundering puts us in 2B but because he pled to a charge that included taxes, that brings the whole thing in. The tax charge that he pled to is 7212 a corrupt interference with the internal revenue laws and it's very broad. It was all of the employment tax conduct and explicitly the personal income tax conduct. In the factual basis, which is the document 22 of the district court record, on page 16 to 18, it includes admissions that false tax returns were filed for 2004, 5, 6, 7, and 8. There was no objection to the calculation of those numbers, just the inclusion. The guidelines clearly contemplate the aggregation of all loss or harm that relates to a common scheme or the same course of conduct. This is not a case of somebody embezzling money and then the government coming along and slapping on a tax charge. The scheme was essentially about taxes. There was workers comp, there's this insurance fraud, there's all kinds of stuff. But at its core essence, it's a scheme about employment taxes and that pulls in the personal income taxes too. In fact, arguing that there is no... The appellant says, as to the personal tax losses, tax losses not included in any example or any special rule and to be. Well, that logic goes too far because that would knock out the employment taxes too and that's clearly not the case. Nothing in the commentary implies that tax loss should not be part of the actual loss calculation. And once we are in that, in to be calculating the loss, it should include entirety of the offense level. The offense level should correspond to the aggregated quantity of the full course of conduct
. In the money laundering puts us in 2B but because he pled to a charge that included taxes, that brings the whole thing in. The tax charge that he pled to is 7212 a corrupt interference with the internal revenue laws and it's very broad. It was all of the employment tax conduct and explicitly the personal income tax conduct. In the factual basis, which is the document 22 of the district court record, on page 16 to 18, it includes admissions that false tax returns were filed for 2004, 5, 6, 7, and 8. There was no objection to the calculation of those numbers, just the inclusion. The guidelines clearly contemplate the aggregation of all loss or harm that relates to a common scheme or the same course of conduct. This is not a case of somebody embezzling money and then the government coming along and slapping on a tax charge. The scheme was essentially about taxes. There was workers comp, there's this insurance fraud, there's all kinds of stuff. But at its core essence, it's a scheme about employment taxes and that pulls in the personal income taxes too. In fact, arguing that there is no... The appellant says, as to the personal tax losses, tax losses not included in any example or any special rule and to be. Well, that logic goes too far because that would knock out the employment taxes too and that's clearly not the case. Nothing in the commentary implies that tax loss should not be part of the actual loss calculation. And once we are in that, in to be calculating the loss, it should include entirety of the offense level. The offense level should correspond to the aggregated quantity of the full course of conduct. And as I said, the offense claim that unpaid taxes would be part of literally every loss calculation. Involving routine theft and bezzlement of fraud is nothing other than a red herring. In this case, the IRS is the primary victim of the fraud scheme and the entire loss should be included. If you have no other further questions? Thank you, Mr. Olinwood. Mr. White. Just with regard to the government's argument on the first issue, I believe the court quite accurately picked up on the fact that the trust repost in Mr. White was really more by virtue of his position as CEO of these corporations rather than by virtue of the fact he almost looked up as a CPA. And the scheme that Mr. Neymar, that you described, I think it does move much closer to the general fraud aspect. It's important to remember, as I'm sure the court is certainly aware, in any fraudulent scheme, there's some degree of trust. The enhancement is for a special relationship between the victim and the defendant, in this case the appellant. And that relationship simply didn't exist in this situation as a CPA. How many levels was the enhancement? There was a two level enhancement. And what does that change the range? I don't have the calculation. It would be approximately four years, I believe, potentially, Judge. And so it's a significant difference in Mr
. And as I said, the offense claim that unpaid taxes would be part of literally every loss calculation. Involving routine theft and bezzlement of fraud is nothing other than a red herring. In this case, the IRS is the primary victim of the fraud scheme and the entire loss should be included. If you have no other further questions? Thank you, Mr. Olinwood. Mr. White. Just with regard to the government's argument on the first issue, I believe the court quite accurately picked up on the fact that the trust repost in Mr. White was really more by virtue of his position as CEO of these corporations rather than by virtue of the fact he almost looked up as a CPA. And the scheme that Mr. Neymar, that you described, I think it does move much closer to the general fraud aspect. It's important to remember, as I'm sure the court is certainly aware, in any fraudulent scheme, there's some degree of trust. The enhancement is for a special relationship between the victim and the defendant, in this case the appellant. And that relationship simply didn't exist in this situation as a CPA. How many levels was the enhancement? There was a two level enhancement. And what does that change the range? I don't have the calculation. It would be approximately four years, I believe, potentially, Judge. And so it's a significant difference in Mr. Weiss's guideline range. In the range, he was sentenced in the middle of the range. It was toward the bottom of the range, Judge. That's 16% toward the bottom. I believe the bottom of the range was 168, he was sentenced in 185. And the second part is that the big part of the government argument was that these organizations were PEOs. Again, a fact is, not a CPA, but a PEO organization is relevant. But Judge, the court concluded their PEOs. But I didn't see any evidence in the record to support that conclusion. Mr. Weiss made reference to 20 pages of North Carolina Statues. None of that was introduced into evidence. None of that was cited by either side or referred to by the Judge. As I pointed out in the third argument, an expert maybe could have testified to the court that these weren't PEOs. But that is not really relevant to the CPA argument. The fact that the PEO, even if it was a PEO for the sake of argument, was chaired by a CPA. There's no evidence that induced anybody to participate or that imposed a higher level of trust by that alleged victim in the particular PEO. Mr
. Weiss's guideline range. In the range, he was sentenced in the middle of the range. It was toward the bottom of the range, Judge. That's 16% toward the bottom. I believe the bottom of the range was 168, he was sentenced in 185. And the second part is that the big part of the government argument was that these organizations were PEOs. Again, a fact is, not a CPA, but a PEO organization is relevant. But Judge, the court concluded their PEOs. But I didn't see any evidence in the record to support that conclusion. Mr. Weiss made reference to 20 pages of North Carolina Statues. None of that was introduced into evidence. None of that was cited by either side or referred to by the Judge. As I pointed out in the third argument, an expert maybe could have testified to the court that these weren't PEOs. But that is not really relevant to the CPA argument. The fact that the PEO, even if it was a PEO for the sake of argument, was chaired by a CPA. There's no evidence that induced anybody to participate or that imposed a higher level of trust by that alleged victim in the particular PEO. Mr. Weiss would also have been with the guard of the second issue touched upon an issue that is relevant to both issues. That is that he considered the IRS to be the primary victim of each case. Assuming that for the sake of argument which the appellant was certainly not conceding by a long shot, the appellant would put forth that the person who gave this defendant money to the supposed to go to the IRS is the primary victim, not the IRS who never got it. But in either case, the- Wasn't the IRS a victim? Absolutely, no question. I didn't mean to say they were not a victim. But in terms of the primary victim, the person who earned the money gave it to Mr. Weiss and didn't get the results of it. I would submit as the primary victim with regard to the analysis of trust certainly and also with regard to the analysis under the inclusion of tax laws. Judge Mr. Ellen would also made reference to the fact that Mr. Weiss had some sort of latitude to prepare and file these returns. That's simply inaccurate. The record is clear that Mr. Weiss did not exercise any decisionary function. He farmed out to a third party's paycheck, the parts like that, the calculation of what the appropriate withholdings would have been. He didn't make that calculation. He did misappropriate the funds. There's no question about that and he's being punished for that
. Weiss would also have been with the guard of the second issue touched upon an issue that is relevant to both issues. That is that he considered the IRS to be the primary victim of each case. Assuming that for the sake of argument which the appellant was certainly not conceding by a long shot, the appellant would put forth that the person who gave this defendant money to the supposed to go to the IRS is the primary victim, not the IRS who never got it. But in either case, the- Wasn't the IRS a victim? Absolutely, no question. I didn't mean to say they were not a victim. But in terms of the primary victim, the person who earned the money gave it to Mr. Weiss and didn't get the results of it. I would submit as the primary victim with regard to the analysis of trust certainly and also with regard to the analysis under the inclusion of tax laws. Judge Mr. Ellen would also made reference to the fact that Mr. Weiss had some sort of latitude to prepare and file these returns. That's simply inaccurate. The record is clear that Mr. Weiss did not exercise any decisionary function. He farmed out to a third party's paycheck, the parts like that, the calculation of what the appropriate withholdings would have been. He didn't make that calculation. He did misappropriate the funds. There's no question about that and he's being punished for that. But Judge, there was not a position of trust or discretion involved in those calculations. Also with regard to the 941s, again, the one fictitious 941 did show the name of Mr. Weiss, one of Mr. Weiss's corporations on it. However, Judge, I believe in the record and I can't point to it right now and I apologize to the court for that. The other 941s were filed with the employer identification numbers. I beg the pardon. With regard to the second issue, very briefly, Judge, the grouping rules basically direct the court to select which set of rules and which set of analysis the court is to applaud. Once the cases were grouped without objection, that moved to the 2D analysis which does not include tax losses. I believe it is accurate to say that if the income illegally derived income from theft or embezzlement or anything else would be included in tax loss, excuse me, in calculating the amount of loss, were that analysis to hold up? That's all I have, I believe Judge, and let's see. I know there's any more questions. Thank you. Mr. Weiss. Thank you very much. Go on. Go on. Go on
. Go on. All right. We'll come down and greet Council, and we'll go on to the next case