Oh, our next case United States versus Barry. Good morning. May I please the court? Jason Jabi from Michael J. Diamonds, Dean PC on behalf of Ossane and Barry. Could you lift the microphone? Yes, Your Honor. Thank you. With the court's permission, I would like to reserve two minutes of rebuttal. All right. That's fine. Your Honor, in this case, we are asking one of two things. Either that this court grant Mr. Barry a new trial or that this court grant Mr. Barry a new sentencing. Now, with respect to the issue of the new trial, the claim violation is violation of Doyle versus Ohio
. I'm going to rest on the brief with respect to the actual violation. And I just like to. Even if there were a by a Doyle violation, how do you get past harmless here? Your Honor, we get past harmless error because of the nature of the evidence in this case. Specifically, we had turn coat witnesses cooperating witnesses witnesses who are obvious. You're a new old man. They did your honor. And so the issue then becomes whether or not the jury could properly evaluate that testimony. Having heard what we are submitting is a violation of the will. It's our position that our client was impeached, although not directly well-testifying, but he was impeached with respect to, you know, the exerciseism were in the right. But the judge didn't the judge allowed the objection and it wasn't a lot made of this. It's not like this was a main argument made at sentencing. I mean, at the closing to the jury that was the focus. And there were there was other evidence
. I think we are a little more interested in the sentencing issue and with respect to Doyle, I think we have all of your briefing and your. Yes, Your Honor, and I'll move on. So there's two issues with respect to the sentence. You think we should send it back and light a dial. I do your honor. Yes. The decision in Diallo while I wouldn't go so far as to say it was a surprise to everybody. I do think it was a surprise to some people because I think that there were. There were records are not certainly did not have that. That's correct. And I think that where there is the circuit split because there are other circuits that, you know, would not have held the way that this court held in Diallo. I think that we really we can't be sure that the decision was made properly. But even when you look at
. But I think one of the one of the problems with this fact pattern is that I mean it's one thing when you have checks and everyone knows the amount of the checks. But with respect to the credit limit on credit cards, the concept of intended loss, you know, post-mind what's going on in the mind of the criminal. And if there's no evidence that the criminal had any knowledge of the credit limits, then you can't really quite intended with the credit limits. It seemed to me. I absolutely agree with the court. Which brings me to a factual matter that I don't know the answer to and maybe it's an record. Hopefully both sides can clarify this. First of all, we're talking about multiple credit cards, right? That's correct. A good many of them. That's correct. Were these credit cards that the defendant had personally applied for fraudulently and obtained? Or were these credit cards that had been stolen from someone else who had properly obtained the credit card or both? My understanding from the testimony, we were actually not trial counsel, we were hired after. My understanding from the testimony, and I'm sure that my colleague would be able to elaborate on this as well. The cards at issue were actually visa gift cards that were stripped and then account numbers and access numbers were then using some sort of a device placed onto the visa cards
. All right. So these were not credit cards in the ordinary sense. These were not debit cards, they were not credit cards in the ordinary sense. Were they fixed amount cards that had been purchased? Initially the physical cards were fixed amount. This is important, right? I mean, talking about a stolen credit card from another person. The person who steals it has no way of knowing without some careful study that probably cannot be carried out. What the credit limit is on? That you further would not know how much it had been expended at that credit level for purposes of available credit this month. That's exactly correct. But if this is a fixed gift card at some time that bore some indicia of its value, and that the spending had fixed, then that takes my theory of intended. So I just want to try to clarify. These are a fact that seems to me that will determine ultimately how this intended loss comes out. Certainly. So just again to state what I was saying, the visa gift cards were then stripped of their value as visa gift cards
. If there indeed ever was value to those cards. And then the allegations are that account numbers from credit cards, wherever they came from, were then placed on to those visa gift cards. And then those visa gift cards were used as if they were credit cards. But the record does contain the analysis which formed the basis for the district courts ruling on sentencing as to the maximum amount of all these cards, right? Like by calling the institutions, the government did that. Well, the government. Yes. Was this the maximum amount before they were stripped or was the maximum amount changed when they were stripped? Well, the maximum amount that would have been on the cards that were seized by the Huntington County or Huntington Township Police in New Jersey. The maximum amount on those cards would have been the maximum credit limit on any one of the numbers that were loaded onto the cards. If that was clear. I guess this line of questioning heightens the need for the quote unquote deeper analysis. And your honor. We have said, even before Diallo is really necessary in order for the district court to say, OK, I find that this was the intended loss. Yes, Your Honor
. And I agree with the court because we have testimony of record. I've noted it in my brief 507 where one of the co-conspirators actually explains what he was doing in the store. He would select the items and he would use one card for only a few items because, and I'm paraphrasing, he didn't know what the value was and therefore, it would look suspicious if he's maxing out cards. And you could probably figure out based upon how many cards were used and what limit they were used to and how many cards remained. You know, that if they had kept going and maybe three or four hundred on each of these cards, but again, that would be a matter for evidentiary. That's correct. I also did want to address the one that the issue with respect to the actual evidence that was used to determine the cards. We raised an objection to that at sentencing because we didn't feel that that was really sufficient enough. There were, you know, not to suggest that the agent would have done anything unethical or that he would have lied, but there was just too much room for error in so much as calling institutions, giving institutions numbers and then transcribing them down. I mean, this is this is the sentencing phase. I mean, what? Why was his research investigation and testimony not enough in terms of its reliability? Because your honor, the fact that he was, I mean, giving this world is that your stronger issue here? It's not, Your Honor. I just wanted to make sure that I touched on it, but to go back to the actual need for analysis, I think that when you actually look at the transcript of the sentencing. Does it look like deep analysis in terms of what the allocation line would require? I beg your pardon? It doesn't look like the kind of deep analysis contemplated by the allocation
. No, sir. And that is why we are asking for a new sentencing. The other thing that I did want to draw the courts attention to was the objection with regard to the 3C1 enhancement for obstruction of justice. It's our position that the analysis that was employed in order during sentencing was far from what should be employed. What case helps you here? The Dunnigan case from the United States Supreme Court. The Dunnigan case, I mean, I quoted in the brief, the Dunnigan case says that there should be independent, I believe the word is findings, regarding what is supposed to be perjury. Now... Well, Mr. Perry, testify, I didn't commit any crime, right? Yes, Your Honor. That is correct. He did
. He was found to be guilty there for one may assume that he lied under oath when he made that statement. Yes, Your Honor. And the key word, I think there is a assume. As I stayed in my brief and as we raised the sentencing memorandum in our objections to the pre-sentence investigation report, just because someone is found guilty does not mean that the jury made the correct decision. And I draw the court's attention just to the recent cases where people have been exonerated by DNA evidence. It would be absurd for any of us to say that somebody exonerated of, let's say, a rape or a homicide who had testified during trial and said, I didn't do it, it would be absurd to say that they committed perjury even by a preponderance. Oh, but, oh, right. So what if a jury were to convict him of perjury and that would be the basis for the enhancement? Are you saying that we can't value that? You can't use that? If the jury had convicted him of perjury... Yeah, well, I mean, I think that you could definitely..
. You would have no problem with that, would you? I mean, isn't the problem here according to you that the district court failed to make adequate findings with respect to what was the allegedly perjury assessment? Exactly. That is absolutely the case. And again, you know, perjury wasn't charged, it wasn't something that jury considered. But with respect to the district court's findings, it seems that we just assumed that because he was found guilty, therefore that enhancement is appropriate. But realistically, if this goes back and we instruct the court, the court is going to say what Judge Roth said. He said he didn't commit a crime, the jury said he did, he therefore didn't tell the truth and enhancement. I mean, it's not a very high bar with the enhancement. It's not your honor, but we still submit that during sentencing, you have an absolute right to be sentenced under correct guideline calculations, under correct information. And I mean, the precedent of this court is that the first step for a court, a district court, is to determine the guideline range. And so we don't think that it was appropriately done in this case, either with the 3C1 enhancement or the intended loss enhancement. And I see that my time is up until my rebuttal. All right, that's nice. Thank you
. Good morning. May I please the court? My name is Michelle Loshesky. I represent the United States of America in this case against Mr. Barry. I'm going to pull the microphone down. Is Loshesky spelled with an F? There are many in Loshesky spelled with a W in your area. And I'm not related to that. You're the first one spelling with an F. I'm not related to the famous ones in my area. Your honor, your honors. I was going to cut to the chase with respect to the Doyle violation, recognizing and not conceding that a Doyle violation had occurred. It really doesn't matter because of the overwhelming evidence in this case, versus both in quantity and quality. So the error, if any, was admitted, was harmless beyond a reasonable doubt. I will move on to the D.O. issue because it appears the court is most interested in that. And I'm surprised that the government took the position it did in the United D.O. Rather than simply saying, why don't you send it back? What? Isn't that the cleanest, easiest thing to do here? Well, your honor, we're not willing to concede that this judge in this case made no findings with respect to the intended loss. Can you clarify the issue concerning the credit cards or gift cards or whatever they were, factually for our purposes? Because it seems to me that that ultimately drives the valuation and the intended loss valuation. That is correct, your honor. We have a fact pattern that is clearly distinguishable from the D.O. The underlying facts as well as what a credit sentencing. Well, Judge Mungly, the district court judge, did at sentencing, is he made findings because he did not simply adopt what was in the pre-sentence report. What we have here and what was presented at trial was a conspiracy
. I will move on to the D.O. issue because it appears the court is most interested in that. And I'm surprised that the government took the position it did in the United D.O. Rather than simply saying, why don't you send it back? What? Isn't that the cleanest, easiest thing to do here? Well, your honor, we're not willing to concede that this judge in this case made no findings with respect to the intended loss. Can you clarify the issue concerning the credit cards or gift cards or whatever they were, factually for our purposes? Because it seems to me that that ultimately drives the valuation and the intended loss valuation. That is correct, your honor. We have a fact pattern that is clearly distinguishable from the D.O. The underlying facts as well as what a credit sentencing. Well, Judge Mungly, the district court judge, did at sentencing, is he made findings because he did not simply adopt what was in the pre-sentence report. What we have here and what was presented at trial was a conspiracy. The key day of that conspiracy was February 29, 2009, when this defendant was actually caught in the act with his cohorts. At that time, and what the trial evidence established was that these cohorts traveled from New York armed with 81 fraudulent credit cards. They were disguised in the form of gift cards, but what had happened and what was established at trial was that these individuals obtained compromised credit card account numbers. And the expert witness that testified at trial, the Secret Service Agent, testified that the way this happens is you upload those numbers onto cards. So the physical carrier for that credit card number was a card, it was a physical card, but the numbers were compromised credit card account numbers. So such that the number that appeared on the front of the card, card did not match the number that came up. Was there any evidence that the defendants had any idea what the credit limits were on these cards? No, you're honest. And would not the testimony of the one saying what he did that he didn't charge too much on one card because he didn't know what the credit limit isn't, if you're a district court judge, don't you have to take into account and determine the intended loss? Exactly how much they probably were going to charge on these cards, not the credit limit, which they didn't know about, but I put two of these games on it, but I didn't want to run up against the credit limit. And you have to analyze what's possibly, I mean, it's a it's conjecture perhaps, but what's what's going on in the in the mind of the criminalist intent. So how can this withstand, how can we affirm the analysis or the fact of analysis that was done here? I think that the district court judge did that in this case or under and here's why the evidence that was presented on in the filings presentance, the arguments were laid out. The district court judge had the benefit of a presentance report. We made arguments at sentencing on 102 credit cards that were involved in the overall conspiracy. And that was the recommendation that was made in the presentance report, but this judge did not adopt that finding what this judge did after reading the papers and listening to the arguments and having been the trial judge
. The key day of that conspiracy was February 29, 2009, when this defendant was actually caught in the act with his cohorts. At that time, and what the trial evidence established was that these cohorts traveled from New York armed with 81 fraudulent credit cards. They were disguised in the form of gift cards, but what had happened and what was established at trial was that these individuals obtained compromised credit card account numbers. And the expert witness that testified at trial, the Secret Service Agent, testified that the way this happens is you upload those numbers onto cards. So the physical carrier for that credit card number was a card, it was a physical card, but the numbers were compromised credit card account numbers. So such that the number that appeared on the front of the card, card did not match the number that came up. Was there any evidence that the defendants had any idea what the credit limits were on these cards? No, you're honest. And would not the testimony of the one saying what he did that he didn't charge too much on one card because he didn't know what the credit limit isn't, if you're a district court judge, don't you have to take into account and determine the intended loss? Exactly how much they probably were going to charge on these cards, not the credit limit, which they didn't know about, but I put two of these games on it, but I didn't want to run up against the credit limit. And you have to analyze what's possibly, I mean, it's a it's conjecture perhaps, but what's what's going on in the in the mind of the criminalist intent. So how can this withstand, how can we affirm the analysis or the fact of analysis that was done here? I think that the district court judge did that in this case or under and here's why the evidence that was presented on in the filings presentance, the arguments were laid out. The district court judge had the benefit of a presentance report. We made arguments at sentencing on 102 credit cards that were involved in the overall conspiracy. And that was the recommendation that was made in the presentance report, but this judge did not adopt that finding what this judge did after reading the papers and listening to the arguments and having been the trial judge. He said I'm only holding this defendant accountable for the 81 cards that were found in his possession on this day, but the maximum credit limit of every one of those cards. Yes, you're aware, where is the finding that supports that as the intent of the defendant? I think the finding that supports that is the defendant's actions and the testimony that was presented at trial such that you're correct in that one of the co-conspirator's testified that there was some kind of strategy involved. And the use of those cards, but all three co-conspirators also testified that at times when the cards were rejected, they went back and they returned those cards to Mr. Barry and to Mr. Camaro and Camaro and then they were resupplied with new cards. So we certainly can't see the intent of the defendant's mind. He certainly did not know the maximum limits, but his actions tell us that he and his cohorts intended to use those cards until they were exhausted. And also it's important that they came from New York on that day, armed with those 81 cards. They engaged throughout the late evening and until the next morning when they were apprehended and using those cards to commit fraud and seven warm arts. So had they not been caught, it's certainly reasonable to presume that they would have continued to use those cards until they were all rejected. But you're now making findings that we don't have from the district court. And that's why the deep, I mean, you're giving us what you think is the deeper analysis, but it wasn't done. I think that it can be founder on or in the fact that Judge Munley held him accountable for only the 81 cards
. He said I'm only holding this defendant accountable for the 81 cards that were found in his possession on this day, but the maximum credit limit of every one of those cards. Yes, you're aware, where is the finding that supports that as the intent of the defendant? I think the finding that supports that is the defendant's actions and the testimony that was presented at trial such that you're correct in that one of the co-conspirator's testified that there was some kind of strategy involved. And the use of those cards, but all three co-conspirators also testified that at times when the cards were rejected, they went back and they returned those cards to Mr. Barry and to Mr. Camaro and Camaro and then they were resupplied with new cards. So we certainly can't see the intent of the defendant's mind. He certainly did not know the maximum limits, but his actions tell us that he and his cohorts intended to use those cards until they were exhausted. And also it's important that they came from New York on that day, armed with those 81 cards. They engaged throughout the late evening and until the next morning when they were apprehended and using those cards to commit fraud and seven warm arts. So had they not been caught, it's certainly reasonable to presume that they would have continued to use those cards until they were all rejected. But you're now making findings that we don't have from the district court. And that's why the deep, I mean, you're giving us what you think is the deeper analysis, but it wasn't done. I think that it can be founder on or in the fact that Judge Munley held him accountable for only the 81 cards. And having, well, what evidence was there that there were more more cards than that? Because this was an overall conspiracy and different dates were evidenced at trial of these same individuals engaging in the same fraud at other warm arts prior to the date they were caught. Those credit card numbers were included in the overall calculation that was included in PSR, but Judge Munley said no. I'm only going to hold him accountable for the 81 cards. And then the judge went on to acknowledge that sentencing guy and taking into consideration the filings that are record and the arguments that are made here. So we do have that specific finding by Judge Munley. We also have implicitly, albeit not articulated by Judge Munley, the fact that he was a trial judge. So he heard about the use of this. But that doesn't help us in terms of reviewing his reasoning for the ultimate value determination, loss value determination that he made. Correct me if I'm wrong, but there were no specific findings made at sentencing relative to the matters I've inquired about concerning the nature of these cards. The district court judge stated on the record at sentencing I am going to be using his exact words, but he said the loss is going to be based upon the 81 cards that were found in the possession of the defendant and his co-defendants. And I believe that that is something that was not present in the dialogue. The yellow was a different factual scenario where Mr. Diallo was held accountable for over 200 credit card numbers that were found on various media, hard drive and a jump drive
. And having, well, what evidence was there that there were more more cards than that? Because this was an overall conspiracy and different dates were evidenced at trial of these same individuals engaging in the same fraud at other warm arts prior to the date they were caught. Those credit card numbers were included in the overall calculation that was included in PSR, but Judge Munley said no. I'm only going to hold him accountable for the 81 cards. And then the judge went on to acknowledge that sentencing guy and taking into consideration the filings that are record and the arguments that are made here. So we do have that specific finding by Judge Munley. We also have implicitly, albeit not articulated by Judge Munley, the fact that he was a trial judge. So he heard about the use of this. But that doesn't help us in terms of reviewing his reasoning for the ultimate value determination, loss value determination that he made. Correct me if I'm wrong, but there were no specific findings made at sentencing relative to the matters I've inquired about concerning the nature of these cards. The district court judge stated on the record at sentencing I am going to be using his exact words, but he said the loss is going to be based upon the 81 cards that were found in the possession of the defendant and his co-defendants. And I believe that that is something that was not present in the dialogue. The yellow was a different factual scenario where Mr. Diallo was held accountable for over 200 credit card numbers that were found on various media, hard drive and a jump drive. And the court was concerned that there was no evidence that he even controlled those numbers. It's different here. And I think by the virtue of the fact that Judge Munley only held Mr. Barry accountable for the 81, only held him accountable for the ones he controlled and intended to use throughout that crime story that occurred on February 29, 2009. And there was no rebuttal to that by Mr. Barry or his counsel. And the burden of the government is moved by my apprentice, but I do appreciate the court's concern in light of Diallo, which Judge Munley did not have the benefit of. Although before even that with Titual in other cases, we said a deeper deeper analysis as to what really is intended. You're on the givers case. The courts use the term subjective intent. And what criminal law, how we show what's going on in the defendant's mind is his actions. And that was evidence here. And because it's we determined it by circumstantial evidence and some of the circumstantial evidence here
. And the court was concerned that there was no evidence that he even controlled those numbers. It's different here. And I think by the virtue of the fact that Judge Munley only held Mr. Barry accountable for the 81, only held him accountable for the ones he controlled and intended to use throughout that crime story that occurred on February 29, 2009. And there was no rebuttal to that by Mr. Barry or his counsel. And the burden of the government is moved by my apprentice, but I do appreciate the court's concern in light of Diallo, which Judge Munley did not have the benefit of. Although before even that with Titual in other cases, we said a deeper deeper analysis as to what really is intended. You're on the givers case. The courts use the term subjective intent. And what criminal law, how we show what's going on in the defendant's mind is his actions. And that was evidence here. And because it's we determined it by circumstantial evidence and some of the circumstantial evidence here. Actually, it was more than circumstantial. He does evidence of another of another participant saying that by design, we weren't trying to run up a maximum. That certainly would seem to run contrary to what you're asking this to refer or what you're suggesting the district court had a right to refer. That same co-defendant that testified about maybe not drawing suspicion to himself by not including a lot of merchandise and one purchase also said that when cards were rejected, he returned them to Mr. Barry and Mr. Camara and received new cards. We don't know what that means. There was a card with a $1,200 credit limit and he put $400 to put $400 on it and the card was rejected. That's not evidence of intended laws of $1,200. If on the other hand, he wanted to buy four games and the price was going to be $1,300 in the credit limit was $1,200. Then that's something else that it does show an intent to run it up. But we don't have that. Just by virtue of it was rejected so I get another one doesn't show the $1,200 was the intent of laws and it's apples and oranges
. Actually, it was more than circumstantial. He does evidence of another of another participant saying that by design, we weren't trying to run up a maximum. That certainly would seem to run contrary to what you're asking this to refer or what you're suggesting the district court had a right to refer. That same co-defendant that testified about maybe not drawing suspicion to himself by not including a lot of merchandise and one purchase also said that when cards were rejected, he returned them to Mr. Barry and Mr. Camara and received new cards. We don't know what that means. There was a card with a $1,200 credit limit and he put $400 to put $400 on it and the card was rejected. That's not evidence of intended laws of $1,200. If on the other hand, he wanted to buy four games and the price was going to be $1,300 in the credit limit was $1,200. Then that's something else that it does show an intent to run it up. But we don't have that. Just by virtue of it was rejected so I get another one doesn't show the $1,200 was the intent of laws and it's apples and oranges. And again, your Honor, the finding made by Judge Munley, which I think is critical in that he only held Mr. Barry accountable for the cards he possessed on this one day, which they continued to use repeatedly throughout the night. But was he given evidence of other cards specifically that he then rejected? Mr. Judge Munley was, Your Honor, because there were 102 credit cards that were presented in evidence at trial. 102, the value of 102 credit cards was presented to Judge Munley in the PSR, believe it was $863,000. And Judge Munley rejected that he did not summarily include that aggregate number. He specifically held Mr. Barry accountable for the 81. That's on the record and that was the 81. That was about $200,000 less than the intended. But here where they had done so far they charged $13,400 or so and you say the intent was $675,000. It just the other needs to be some explanation. And to that, Your Honor, I would say that the only thing that stopped these individuals from reaching that maximum was the fact that they were caught
. And again, your Honor, the finding made by Judge Munley, which I think is critical in that he only held Mr. Barry accountable for the cards he possessed on this one day, which they continued to use repeatedly throughout the night. But was he given evidence of other cards specifically that he then rejected? Mr. Judge Munley was, Your Honor, because there were 102 credit cards that were presented in evidence at trial. 102, the value of 102 credit cards was presented to Judge Munley in the PSR, believe it was $863,000. And Judge Munley rejected that he did not summarily include that aggregate number. He specifically held Mr. Barry accountable for the 81. That's on the record and that was the 81. That was about $200,000 less than the intended. But here where they had done so far they charged $13,400 or so and you say the intent was $675,000. It just the other needs to be some explanation. And to that, Your Honor, I would say that the only thing that stopped these individuals from reaching that maximum was the fact that they were caught. And the evidence at trial established that I appreciate the fact that Judge Munley did not articulate that on the record, but he did make findings and that is on the record. And that's what distinguishes this case from the Allah. With respect to the perjury charge, if the court would like me to address that, there's no question that this defendant committed perjury and he could have been charged with perjury. Were the findings sufficient by the court that they comply with our precedent? Well, it does, Your Honor, because in the case of United States versus Bogie, which is a decision made by this court after the Denigin case, the court in Bogie specifically said that it's preferable that the district court articulate the elements of perjury on the record to apply the enhancement. However, the express factual findings are not necessary. As long as we can infer from the judge's decision that he considered the perjuryist testimony, that is sufficient. And that occurred in this case. And Denigin actually says that. The judge doesn't have to make element by element to determine that. He does not, Your Honor, in this court has said that. And certainly in this case, because the defendant could have been charged with perjury on multiple aspects of his testimony. And because the filings of the parties on argue this, there was arguments at sentencing from both parties and judge merely specifically said, I am considering these arguments and these filings. And to that point, he reached the conclusion that the enhancement for perjury, that obstruction charge was appropriate
. And the evidence at trial established that I appreciate the fact that Judge Munley did not articulate that on the record, but he did make findings and that is on the record. And that's what distinguishes this case from the Allah. With respect to the perjury charge, if the court would like me to address that, there's no question that this defendant committed perjury and he could have been charged with perjury. Were the findings sufficient by the court that they comply with our precedent? Well, it does, Your Honor, because in the case of United States versus Bogie, which is a decision made by this court after the Denigin case, the court in Bogie specifically said that it's preferable that the district court articulate the elements of perjury on the record to apply the enhancement. However, the express factual findings are not necessary. As long as we can infer from the judge's decision that he considered the perjuryist testimony, that is sufficient. And that occurred in this case. And Denigin actually says that. The judge doesn't have to make element by element to determine that. He does not, Your Honor, in this court has said that. And certainly in this case, because the defendant could have been charged with perjury on multiple aspects of his testimony. And because the filings of the parties on argue this, there was arguments at sentencing from both parties and judge merely specifically said, I am considering these arguments and these filings. And to that point, he reached the conclusion that the enhancement for perjury, that obstruction charge was appropriate. And there is no need to send this case back on that issue to have the district court judge state the obvious. Thank you. Thank you. Councillor, how do we really said in our case law that, you know, it's implicit in the jury's with respect to the obstruction. In implicit in the jury's verdict, if you're alley, we said we really don't need to send the findings. We don't need to remand because the court didn't, quote, engage in a ritualistic exercise. Now, isn't there really enough here? What more would the district court need to do on remand? I would defer to the Dunnigan case where the Supreme Court suggests that it actually really states that there's a little bit more of the needs to be done with respect to specific areas of testimony that he thinks were perjury. We've rejected the idea that under Dunnigan, the district court has to make an independent finding of perjury. Our reading of Dunnigan is not in accordance with what we're saying. And I do understand that, but in a case like this where, I mean, I believe my co-counsel use the word state the obvious. I don't think that necessarily it's all obvious. Just to touch on one other aspect of the deeper analysis that was required. I'm going to bring the court's attention to facts that were elicited, brewing trial, definitely brewing sentencing, that there were certain cards that were recovered that were either duplicates or had value that was, excuse me, the cards had been canceled
. And certainly that would lend a little bit of an explanation to where they're saying, well, we tried to use the card, it came back. So, I mean, it's possible that there were more cards there because they don't know what's going on. And therefore, they just bring extra to get to whatever it is they want to get. And again, it just goes back to why we need that deeper analysis and to receive testimony on that. Thank you very much for your time. Thank you very much. Case as well, Eric. We'll take it under your punishment