Legal Case Summary

United States v. Diallo

Date Argued: Wed Jun 10 2009
Case Number: H036994
Docket Number: 2605887
Judges:Not available
Duration: 31 minutes
Court Name: Court of Appeals for the Third Circuit

Case Summary

**Case Summary: United States v. Diallo (Docket Number: 2605887)** **Court:** United States District Court **Date:** [Insert Date of Judgment] **Judge:** [Insert Judge's Name if known] **Background:** The case of United States v. Diallo involves the apprehension and prosecution of the defendant, [Defendant's Full Name], who faced allegations of [briefly insert charges such as drug trafficking, immigration violations, etc.]. The events leading to the charges took place on [insert date or time frame], when law enforcement officials [briefly describe the circumstances of the arrest or investigation, e.g., conducted a search, surveillance, etc.]. **Charges:** The defendant was charged with [insert specific charges, e.g., possession of illegal substances, conspiracy to commit a crime, etc.]. These charges were based on evidence gathered through [insert methods of evidence collection, e.g., wiretaps, search warrants, eyewitness accounts]. **Key Issues:** The principal issues in the case included [insert legal issues such as the constitutionality of the search and seizure, evidentiary concerns, challenges to the validity of witness testimonies, etc.]. **Trial and Proceedings:** During the trial, the government presented [highlight crucial evidence, testimony, or arguments made during the proceedings]. The defense countered by [describe the defense's arguments, including any alibi, lack of evidence, or constitutional claims]. **Verdict:** After deliberation, the jury found [insert verdict, e.g., guilty, not guilty, or a plea deal], leading to [briefly mention the subsequent legal outcomes, such as sentencing or plans for appeal]. **Conclusion:** The case of United States v. Diallo underscores important aspects of [insert any notable legal principles such as Fourth Amendment protections, burden of proof, etc.]. The ruling has implications for future cases involving [insert relevant context or future considerations in similar legal matters]. [Consider adding any additional information about the implications of the case or broader legal significance if pertinent.] **Note:** This summary is a general template. Specific details regarding charges, evidence presented, and outcomes should be inserted where indicated, based on the actual case documentation and rulings.

United States v. Diallo


Oral Audio Transcript(Beta version)

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obtained credit card information, which was obtained in two different manners. Mr. Diallo obtained it from a third party, some of the account numbers, and others see obtained through the use of a skimming device through which credit cards were run through to store the information. Once these account numbers were received, Mr. Diallo used them to purchase gift cards at Wegmans grocery stores

. At the time of sentencing, the court took note that the guidelines required the court to sentence and base an offense level either on the actual or intended loss, whichever is greater. In this case, the court went with the intended loss. The actual loss here was only approximately $160,000. Did he put any evidence in that the hearing asked what the intended loss was? Our position is that insufficient evidence was presented, Your Honor. The secret service agent. The insufficient evidence was presented evidence, but it was then satisfied the district court. Did any evidence says what the, we all know the actual loss, but you did put it in any evidence is what the intended loss would be. We did not put an evidence as to the intended loss. Well, then did you default as an automatic then whatever the state says is the loss? The state did put on a witness, a secret service agent, that arrested Mr. Diallo in this case. However, it's our position that even if you accept everything in his testimony is true, the state didn't make out their case. At the sentencing, you're in the state. Well, I wasn't unreasonable for the court to determine that Mr. Diallo would try to take everything that he could. Because there was absolutely, there wasn't a shred of evidence presented that that was his actual intent

. What the secret service agent basically said was, he could have put it in any evidence that that was his intent. I blew it was error for the court. Go back to your channel, there is a burden shifting framework that you work under. And the government went forward and presented its case. And certainly Diallo had an opportunity at that point to say, no, that's not what I intended. I intended something else. I agree that not possibly have taken all that money. I agree that there is a burden shifting, but the United States still has to meet an initial, primafacial case or burden of proof and determined the intended loss. The other side sites givers, the givers case, which talks about burden shifting and determining the intended loss. Do you agree that's the standard that should be followed? I think that that case is distinguishable for the case at hand. In givers, we would- Because it's a draft checks instead of credit cards? Not so much that it's a check, but in that case, they were dealing with checks and they were written out for a specific amount deposited. And then the defendant in that case attempted to withdraw a smaller amount of money. Actually, I thought that givers was helping you. It was helpful for you. I mean, givers did say that under the burden shifting analysis, intended loss does not equate to the face value of the deposit checks

. There, of course, you had an actual amount. So it was a lot easier for the court to evaluate what the intended loss was. But in your case, it's very different. That's correct, Your Honor. In that case, he actually wrote a check for $75,000. And in terms of that check, that was the intended loss for that check, even though we actually obtained a much smaller amount of money. In this case, if you prefail here and we revand it, let's say, what is your position going to be in an evidentiary hearing as to the intended loss? Our position at this point is that in order for the United States to meet its burden and proven intended loss, they have to put on some evidence other than just saying, these are the aggregate credit card limits. And that's what we're going to go with. Well, that's their look. You may say that's fantastic that they would have stolen the credit limit of the cards. But that's their pre-muffatio case. Now, what are you going to say in response? Because that's the government's position. You might not agree with it. I may or may not agree with it. What are you going to do on revand when they come up with that scenario? If I may address the first part of your question, Your Honor, I don't believe that that would be sufficient for them to make out of a primary, patient case

. If you look at prior cases, the district court says it is and we agree. What is your position as to the intended loss? If the United States is able to make out a primary, patient case at that point, I believe that we are only recourse would be to take testimony from Mr. Diallo. And his position would be that what? He didn't intend to take anything more than he actually, you know? That he didn't intend to exhaust the credit limit on that. And how much would he say he intended to take beyond the actual loss? I at this point can answer that question, Your Honor. I'm not sure. So let's get back to the original position. Why is the government's prime of phase of case sufficient and the district court within its discretion to accept it? If there's nothing in response? Sure. If you look at prior cases in this circuit and from other circuits, in cases where the court's found that aggregating the credit limits is a sufficient, is a proper manner of calculating intended loss, there was other evidence to support the fact that that was actually intended loss. In a prior case in this circuit that was actually cited by Appellian, their brief in the United States, the ULA, the court allowed the aggregate credit limits to be used. However, in that case, it was a conspiracy and co-conspirators testified that the object of the conspiracy and the intent was to exhaust the court's intent. In other cases from other circuits, you have facts such as some of the credit cards used were exhausted or that they were used multiple times. In this case, the United States failed to put on any evidence that the cards, specific cards were used multiple times and that they were being used over and over again. They didn't put on any evidence that any of the cards that were about 327 total, that any of them were actually exhausted. And they didn't put on any evidence from witnesses indicating that the intent of the scheme

. Well, that could have been your, I mean, you could have put on evidence that some of the cards were exhausted to have reduced the potential range and that may have reduced the range down below $1 million, which would have given you a different guideline. I do agree that we did have the opportunity to put on evidence. However, you have the opportunity to put in evidence of what? In terms of testimony, we would have been able to put on testimony. However, at the centencing hearing, the initial burden is on the United States and it's our position that they didn't make that burden. And therefore, we didn't have an obligation to put on any evidence because they didn't make that primary case. Because we say that they made a, a, a private phase of case. Not a very good one, but they gave it their best shot. Where does that lead you? If they presented a private phase of case, I believe that's determined. We have it. Conference. Let's say this panel determines they made a private phase of case. It wasn't a good one, but it was, you know, it had a lot of holes in it. He didn't know what the, what the, the limit was on these cards, but that's a, what, government gave it their best shot. And we say they made a primary phase of case. Where does that lead you? Honestly, if the court finds that they didn't make a primary phase of case, where at that point sunk because we didn't put on evidence

. We got to, we got to affirm. Yes. What was the district court's decision? The district court simply, they accepted the, the testimony that was taken to the sentencing hearing and, and used the aggregate credit limits. And this is one of the, the problems, I think in this case is that first and foremost, the court didn't provide any reasoning for its calculation intended loss other than to say we agree to the credit card limits. So that's the intended loss. Well, that's reasoning. They, they say we're dealing with a thief. A thief will take as much as they can. And this is what, this is what the, he was capable of taking. And you put on nothing to say, look, I just wanted to cover my bills and I would have your man didn't come up with anything. So, I mean, your, your position as I listen, is that the government should get on the stand and somehow read the defendant's mind as the hummachi intended to steal, which no one's going to allow anyone to do that. And, and I would agree on it that that would be improper, but there are methods as, as has shown through the other circuit cases to prove that. So, showing that credit cards that he used that he exhausted them and that wasn't done here, to show that cards were used multiple times to show that he was trying to use the full amount of the cards that wasn't done. So, does he have to show his purpose? I mean, I thought that the, the burden shifting analysis to government goes forward and, and for the most part explains what the defendant has done. Use these credit cards and then it could simply say he intended to use the maximum of the cards, but then you would go forward and explain why not

. It's, it's our position that because the intended loss does require some proof of immense, right, that it's not sufficient to just say it's a credit card scheme so we aggravate, there has to be something other than the aggregate credit limit to indicate that he was going to use the full amount of the cards and, and that was not presented here. What else could the government have, what, what could the government have done besides giving them the, the rate of each credit card? How much, what other evidence could the government have used? In terms of calculating intended loss. Yeah. In this case, I'm not sure that they had really, you know, anything to go on in this case, but in the past they have used co-ponspirators and, and credit card records to show how he was using the cards. Well, they didn't have that here. So your position is that there could be no loss beyond the actual loss because in, in this case, I believe it would be impossible to determine the intended loss absent a statement from the defendant in the court would have to send it in the intended loss. Thank you very much. Thank you. May I please the court to even serve you on behalf of the United States of America. On the sole remaining issue in this case, obviously the United States feels that there was an adequate basis for the district court holding that there was an intended loss in this case of over $1 million. Well, you can see though that the defendant didn't have no knowledge of the credit limits of these parts. There is no evidence that he had knowledge of the credit limits. No, I don't see it. I don't know. Yes

. All right. So how can you say that to his intended loss? It's intended the intention of what the law for me. Yeah, no knowledge of it. He had no knowledge of these specific credit card limits. However, it is, it is clear from various number of cases that have been cited actually by both sides that, you know, you can, you can find that a criminal has the intent to be a criminal. He had the intent to steal as much as possible. And then when trying to come up with the kind of reasonable idea of what the intended loss might be that using aggregated credit limits is a credible. What evidence did you have in this case that he was going to steal the credit card limit here? What evidence was it? You gave a credit card limit. What evidence is there other than the credit card limit? Well, there's intended to do that. Well, there's the intent. I didn't do that. It was a suicide for any half-witted crook to do it. But what evidence did you put in? Except that that was a limit. Crooks have done stupid things in the past. But as far as the specific evidence in this case, yes, we did put on the evidence of what the aggregate credit card limits were for all of the 300 plus accounts that had been compromised

. But that then is another fact. We have over 300 credit card accounts that have been compromised. We have his involvement in a scheme where he has a skimming device. He has the electronics necessary to make this a wide-ranging, very, very lucrative scheme. We have the fact that when he's caught, he has taken $160,000 worth of gift cards. This is not a petty thief who finds one card and makes a quick charge on it. And he continues to hold on to these numbers and continues to have access to these numbers. So it's not a convenience check situation where he's only got two checks. He writes them and they're out of the picture. The problem is that it's very, very difficult to tell from the district court's analysis whether any of that played a role in the district court's decision. And the decision you know was very brief and I'll read it just for the record. The intended laws for credit cards he personally used and the cards he manufactured and provided to others total $1.6 million. Over 50 financial institutions were affected by his actions. So obviously it's a very serious offense

. That's the end of the analysis. So I mean, it seems to me that he equated intended laws with potential laws. And that's exactly what Judge Becker was talking about in the Gears opinion. When he said it is clear that a district court errs when it simply equates potential laws with intended laws without deeper analysis. That analysis of the district court did not seem to me to be a deep analysis. Would you agree or disagree? Well, I would agree that in a perfect world, the record would have been a little bit more expansive than what we have to deal with here. But the fact is in the Geavers case, which I understand you may not think is as positive for the government as maybe I thought it was, it does talk about how the court can draw reasonable inferences from the nature of the crime. And so yes, it doesn't, it doesn't specifically, the court doesn't specifically say that it is doing that. I think however it can be inferred from the fact you're right. I think the problem is he says look the max that he could have taken on these charges 1.6 billion dollars. He must have intended that and that's that's the finding of the court. Well, that was his. He says that that makes it a very serious crime. I don't think he just simply you can, I would concede that you can read it to indicate that. But I think you can also read it to indicate that after having heard the arguments from council on this very issue and then not being presented with any evidence by Mr. Diallo himself. Once we made our prima facie case that the inference that he was making that we have the nature of the crime. We have the fact that this was a wide ranging scheme. We have the fact that Mr. Diallo, even after agreeing to this plea agreement is arrested with another 100 compromise credit card accounts that this is a guy who's going out there and he wants to get as much money or gift cards, whether a Wegman's or someplace else is possible. The only thing that the question here is, is not that he's such a great person and that he wouldn't take whatever he can get. He ends on. But the question is, did you make a prima facie case? All you made was a case showing the limits of the credit cards. There's no evidence that he had that intent. And so why can't we say no crime, the prime of the case was made such that the defendant did not put any rebuttal when it's a the district court took as a fake or complete that he was going to be intended to exhaust every single credit card. And there's nothing in no facts and evidence for which that conclusion can be drawn. Well, the United States would disagree and say that there are facts and evidence. And why how could he make how could the district court make that conclusion that he was going to exhaust the fake the credit line of every single credit card in his possession by looking at the evidence that I've listed regarding the extent of the crime, the interesting continuing and ongoing the crime making the crime ongoing, the efforts to move from state to state throughout the mid Atlantic region, buying things at different locations to make it more difficult to track. This gives rise to the possibility of a reasonable inference that he wanted to steal as much as possible

. But I think you can also read it to indicate that after having heard the arguments from council on this very issue and then not being presented with any evidence by Mr. Diallo himself. Once we made our prima facie case that the inference that he was making that we have the nature of the crime. We have the fact that this was a wide ranging scheme. We have the fact that Mr. Diallo, even after agreeing to this plea agreement is arrested with another 100 compromise credit card accounts that this is a guy who's going out there and he wants to get as much money or gift cards, whether a Wegman's or someplace else is possible. The only thing that the question here is, is not that he's such a great person and that he wouldn't take whatever he can get. He ends on. But the question is, did you make a prima facie case? All you made was a case showing the limits of the credit cards. There's no evidence that he had that intent. And so why can't we say no crime, the prime of the case was made such that the defendant did not put any rebuttal when it's a the district court took as a fake or complete that he was going to be intended to exhaust every single credit card. And there's nothing in no facts and evidence for which that conclusion can be drawn. Well, the United States would disagree and say that there are facts and evidence. And why how could he make how could the district court make that conclusion that he was going to exhaust the fake the credit line of every single credit card in his possession by looking at the evidence that I've listed regarding the extent of the crime, the interesting continuing and ongoing the crime making the crime ongoing, the efforts to move from state to state throughout the mid Atlantic region, buying things at different locations to make it more difficult to track. This gives rise to the possibility of a reasonable inference that he wanted to steal as much as possible. I do know that better than the district court did in this case. I mean, the district court said 1.6 million is the max. It's a serious offense and that was the end of the analysis. That seems to me to be totally deficient in regard to givers, which says you have to do a deeper analysis than that. Well, I think given the amount of discussion that was had during the sentencing about this issue that it can be inferred that the court was doing some level of analysis. It's very well arrived at the decision. It did arrive at it. It's just that you what he had what it has done is is simply equated the intended loss with the potential loss, which is what givers as you shouldn't do. I would disagree the United States would disagree as to the basis for his decision. I think this is a screen when he did even know what the, what the, what the, the, the, the amount of each of the credit cards was. You didn't know the amount that they were doing for. Mr. Deall, didn't know? No, no. Yes, your client did not know the rate of that each card could have been drawn upon

. I do know that better than the district court did in this case. I mean, the district court said 1.6 million is the max. It's a serious offense and that was the end of the analysis. That seems to me to be totally deficient in regard to givers, which says you have to do a deeper analysis than that. Well, I think given the amount of discussion that was had during the sentencing about this issue that it can be inferred that the court was doing some level of analysis. It's very well arrived at the decision. It did arrive at it. It's just that you what he had what it has done is is simply equated the intended loss with the potential loss, which is what givers as you shouldn't do. I would disagree the United States would disagree as to the basis for his decision. I think this is a screen when he did even know what the, what the, what the, the, the, the amount of each of the credit cards was. You didn't know the amount that they were doing for. Mr. Deall, didn't know? No, no. Yes, your client did not know the rate of that each card could have been drawn upon. So how can you just say that's the amount he would have taken? He didn't even know that amount. Well, he may not have known that amount. However, he, if we get past the problem that obviously we've been having today and say, okay, the court found that he was willing to take whatever it is that he wanted. Then what he might have thought was available or what he might have been aware was available or not aware goes to his expectations as to how much he's going to be able to pull down from these accounts. It doesn't go to his intention to take as much as possible and whatever that might be. And givers makes it very clear just as you can't automatically equate possible losses with intended losses. You can also not automatically equate the expectation for what losses are going to be able to be pulled down from these accounts to the intended losses. You have to look at any evidence at that point that is brought up by Mr. Diallo to really kind of get the area of where the intent of intent of the losses were. And if he's going to make some sort of argument that, oh, I only wanted to take about 2000 from every one of these accounts each and that's all I was going to do. But he didn't offer anything. The only evidence that was offered. You didn't offer anything either. You just offered the credit limit of each card. You didn't offer any intent on his part

. So how can you just say that's the amount he would have taken? He didn't even know that amount. Well, he may not have known that amount. However, he, if we get past the problem that obviously we've been having today and say, okay, the court found that he was willing to take whatever it is that he wanted. Then what he might have thought was available or what he might have been aware was available or not aware goes to his expectations as to how much he's going to be able to pull down from these accounts. It doesn't go to his intention to take as much as possible and whatever that might be. And givers makes it very clear just as you can't automatically equate possible losses with intended losses. You can also not automatically equate the expectation for what losses are going to be able to be pulled down from these accounts to the intended losses. You have to look at any evidence at that point that is brought up by Mr. Diallo to really kind of get the area of where the intent of intent of the losses were. And if he's going to make some sort of argument that, oh, I only wanted to take about 2000 from every one of these accounts each and that's all I was going to do. But he didn't offer anything. The only evidence that was offered. You didn't offer anything either. You just offered the credit limit of each card. You didn't offer any intent on his part. Except what he had already done. And from what he already done, how do you extrapolate that he would have gone to the credit limit of every single card in his possession? Again, all I can say is from the manner in which he had undertaken his fraud up until that point as wide ranging as it was with his traveling to different districts, which taking as much money as he wasn't there being no indication at all anywhere that he was ready to stop. There is no indication at all that he had any intention to steal less than whatever he could get his hands on. It's basically when you get a case like this, you just figure out what's the worst case scenario and that's the guideline frame that you use, isn't it? What's the worst case scenario? Maximum that you could charge on all credit cards. But that doesn't seem to me to be the correct analysis. Well, the worst case scenario with nothing more would be problematic. And I think that's what givers has to say. And if the court finds that there is nothing more that has been offered other than the worst case scenario, then obviously that's very problematic for the United States case here. What I'm from Mr. Sir, let me ask you one other facet here. You know, with our post-booker, jurisprudence, is this sentence procedurally unreasonable? With regard to the second issue, with regards to the first issue. Well, with regards to the first issue. Does our post-booker jurisprudence require a court to explain in greater detail how it arrives, to have the $1.6 million figure to add to four points in the guideline calculation? There obviously has to be some level of explanation. I think, however, that most of the cases that I'm running through my head, like crazy right now, say that it doesn't have to be tremendously specific and doesn't have to address every single particular element that could have to be addressed

. Except what he had already done. And from what he already done, how do you extrapolate that he would have gone to the credit limit of every single card in his possession? Again, all I can say is from the manner in which he had undertaken his fraud up until that point as wide ranging as it was with his traveling to different districts, which taking as much money as he wasn't there being no indication at all anywhere that he was ready to stop. There is no indication at all that he had any intention to steal less than whatever he could get his hands on. It's basically when you get a case like this, you just figure out what's the worst case scenario and that's the guideline frame that you use, isn't it? What's the worst case scenario? Maximum that you could charge on all credit cards. But that doesn't seem to me to be the correct analysis. Well, the worst case scenario with nothing more would be problematic. And I think that's what givers has to say. And if the court finds that there is nothing more that has been offered other than the worst case scenario, then obviously that's very problematic for the United States case here. What I'm from Mr. Sir, let me ask you one other facet here. You know, with our post-booker, jurisprudence, is this sentence procedurally unreasonable? With regard to the second issue, with regards to the first issue. Well, with regards to the first issue. Does our post-booker jurisprudence require a court to explain in greater detail how it arrives, to have the $1.6 million figure to add to four points in the guideline calculation? There obviously has to be some level of explanation. I think, however, that most of the cases that I'm running through my head, like crazy right now, say that it doesn't have to be tremendously specific and doesn't have to address every single particular element that could have to be addressed. The kind of thing that does raise that, and it's brief, maybe not real-artfully and forcefully. They focus more on what was the right number and what wasn't. But as Judge Flandy says, raised, the district court was rather sketchy as to how it concluded that the testimony from the Secret Service Agent was sufficient to allow for that four point enhancement. Just throw out there. Is that procedurally unreasonable? But argue no, because I think that there can be the inference based again on the fact that we had this discussion back and forth during the sentencing on this very issue and that it can be inferred that the district court took that into consideration. Being made aware of the cases that were raised by Mr. D'Alla's council and having before it the facts that we've discussed here this morning, which giver says you can draw from those types of facts, the nature of the crime, reasonable inferences as to what the intended loss was. Again, could the decision had been spelled out a little better? Perhaps. You know, as an appellate attorney, I'd love it if there was a little bit more put in there. But you come to the third circuit with the decision you have, not the decision you want. And you're saying we haven't said specifically that it need these spelled out further in each and every case. Off the top of my head, I'm not coming up with a isn't that says that that doesn't mean it's not out there. Okay, my memory is failing me this morning. Is this really a hate program? Nothing. Is your memory has been exhausted? Absolutely

. The kind of thing that does raise that, and it's brief, maybe not real-artfully and forcefully. They focus more on what was the right number and what wasn't. But as Judge Flandy says, raised, the district court was rather sketchy as to how it concluded that the testimony from the Secret Service Agent was sufficient to allow for that four point enhancement. Just throw out there. Is that procedurally unreasonable? But argue no, because I think that there can be the inference based again on the fact that we had this discussion back and forth during the sentencing on this very issue and that it can be inferred that the district court took that into consideration. Being made aware of the cases that were raised by Mr. D'Alla's council and having before it the facts that we've discussed here this morning, which giver says you can draw from those types of facts, the nature of the crime, reasonable inferences as to what the intended loss was. Again, could the decision had been spelled out a little better? Perhaps. You know, as an appellate attorney, I'd love it if there was a little bit more put in there. But you come to the third circuit with the decision you have, not the decision you want. And you're saying we haven't said specifically that it need these spelled out further in each and every case. Off the top of my head, I'm not coming up with a isn't that says that that doesn't mean it's not out there. Okay, my memory is failing me this morning. Is this really a hate program? Nothing. Is your memory has been exhausted? Absolutely. Thank you. We can go on to Mr. Parkinson's. You're honest that appellate's argument rests on the assertion that because Mr. Diallo engaged in criminal activity that he's a criminal and therefore we should infer that he wanted to steal as much as he possibly could. However, the problem with that argument as you're on our noted is that appellate concedes that Mr. Diallo had absolutely no knowledge as to what the credit limits on these cards were. You know, a person in his position might simply just keep using them until a store merchant says, you know, I'm sorry, I can't accept this card anymore. So why was the district court wrong and say, look, just add up what you, if you hadn't been caught, you would have just run through all these credit cards until you would have exhausted the maximum on each one. The problem is that the guidelines and as one of the cases I stated in the brief, Manitau out of the 10th Circuit makes clear is that you have to have a specific intent to steal the certain amount of money. Any lesser men's, men's way is insufficient. And as you're on our noted, it is possible that that's for the offense itself. That's not for the guideline. Well, I think relying on what the 10th Circuit said that there does have to be an analysis into his specific intent to steal certain amounts. He raises the phrase and he raises is approved and an opinion by Judge Randall

. Thank you. We can go on to Mr. Parkinson's. You're honest that appellate's argument rests on the assertion that because Mr. Diallo engaged in criminal activity that he's a criminal and therefore we should infer that he wanted to steal as much as he possibly could. However, the problem with that argument as you're on our noted is that appellate concedes that Mr. Diallo had absolutely no knowledge as to what the credit limits on these cards were. You know, a person in his position might simply just keep using them until a store merchant says, you know, I'm sorry, I can't accept this card anymore. So why was the district court wrong and say, look, just add up what you, if you hadn't been caught, you would have just run through all these credit cards until you would have exhausted the maximum on each one. The problem is that the guidelines and as one of the cases I stated in the brief, Manitau out of the 10th Circuit makes clear is that you have to have a specific intent to steal the certain amount of money. Any lesser men's, men's way is insufficient. And as you're on our noted, it is possible that that's for the offense itself. That's not for the guideline. Well, I think relying on what the 10th Circuit said that there does have to be an analysis into his specific intent to steal certain amounts. He raises the phrase and he raises is approved and an opinion by Judge Randall. I think it's tinch earlier familiar with that case also. I'm not really with 10. It's certainly support your position quite a bit. Deeper analysis is used familiar with that price. Yes, sir. What do you take that to mean? How would the district court in this case have conducted the deeper analysis? This is essentially what Judge Cowan was asking me before. What does it hear what comprise? What would be done? I honestly think, and I agree with you, Your Honor, that there was barely any analysis here as to intended loss. But I think that it would have been difficult for the district court to do here because the United States failed to put on really any evidence for him to consider. They just put the officer on the stand to testify that these are the aggregate credit card limits and didn't offer any other facts. And as you're under noted, you know, it's possible that he may have wanted to just go out and keep using these cards over and over again. And if that were the case, it would have been easy for the commonwealth to make its case if they went into the credit card records and showed that he had used them multiple times or that he had exhausted just one of the credit cards. The United States relies on the fact that it was a wide-ranging scheme that included over 300 compromised credit cards in support of the fact that the intended loss was basically the worst case scenario. But they didn't put on any evidence that a single one of those over 300 cards was either exhausted, which we go to go to prove their primary case or that Mr. Diallo had used any of them multiple times. Because the United States failed to put on any further evidence other than just saying, well, we aggregated the limits, you know, I think it would have been difficult for the court to go into a deeper analysis because it's our position that they didn't make a primary case there

. I think it's tinch earlier familiar with that case also. I'm not really with 10. It's certainly support your position quite a bit. Deeper analysis is used familiar with that price. Yes, sir. What do you take that to mean? How would the district court in this case have conducted the deeper analysis? This is essentially what Judge Cowan was asking me before. What does it hear what comprise? What would be done? I honestly think, and I agree with you, Your Honor, that there was barely any analysis here as to intended loss. But I think that it would have been difficult for the district court to do here because the United States failed to put on really any evidence for him to consider. They just put the officer on the stand to testify that these are the aggregate credit card limits and didn't offer any other facts. And as you're under noted, you know, it's possible that he may have wanted to just go out and keep using these cards over and over again. And if that were the case, it would have been easy for the commonwealth to make its case if they went into the credit card records and showed that he had used them multiple times or that he had exhausted just one of the credit cards. The United States relies on the fact that it was a wide-ranging scheme that included over 300 compromised credit cards in support of the fact that the intended loss was basically the worst case scenario. But they didn't put on any evidence that a single one of those over 300 cards was either exhausted, which we go to go to prove their primary case or that Mr. Diallo had used any of them multiple times. Because the United States failed to put on any further evidence other than just saying, well, we aggregated the limits, you know, I think it would have been difficult for the court to go into a deeper analysis because it's our position that they didn't make a primary case there. The only other thing that I would note. Now, you say that they didn't make a primary case. The government maintains throughout the sentencing process the burden of persuasion. Okay, but didn't the burden of production shift to your client once they put the figure forward that the credit card limits was 1.6 million. And isn't that where you failed by not meeting your burden of production? I don't believe that the burden did shift because that number was not based on any articulable facts that would have caused the burden to shift to us. Was there evidence on the part of the government that they had been some of those cards were drawn down so that maximum could not possibly have been 1.3 million? No, it didn't limit. Yes. But some of those cards were drawn down so that that much money was not available. The 1.6 was not available. That's correct, Your Honor. As the officer admitted on the stand at the sentencing hearing, the United States had no idea how much credit was already used up on the cards and how much was left. So if you had one card with a $20,000 limit, there could have been $19,000 used when he got the card and he would have only been able to utilize $1,000 on that card

. The only other thing that I would note. Now, you say that they didn't make a primary case. The government maintains throughout the sentencing process the burden of persuasion. Okay, but didn't the burden of production shift to your client once they put the figure forward that the credit card limits was 1.6 million. And isn't that where you failed by not meeting your burden of production? I don't believe that the burden did shift because that number was not based on any articulable facts that would have caused the burden to shift to us. Was there evidence on the part of the government that they had been some of those cards were drawn down so that maximum could not possibly have been 1.3 million? No, it didn't limit. Yes. But some of those cards were drawn down so that that much money was not available. The 1.6 was not available. That's correct, Your Honor. As the officer admitted on the stand at the sentencing hearing, the United States had no idea how much credit was already used up on the cards and how much was left. So if you had one card with a $20,000 limit, there could have been $19,000 used when he got the card and he would have only been able to utilize $1,000 on that card. Does that correct relate to intended laws? I think it does, Your Honor, because it would make it impossible to use that amount of money. It makes it impossible. That doesn't mean he did not intend to exhaust credit cards. That's correct, Your Honor. But I think what that analysis does is, as you pointed out, it simply equate intended laws to potential laws. And I believe that's what the court did here because there were no facts to support the intent. But it seems to me you want to argue that you want to conflate intended laws with actual laws. And what the amount said that the amount that was actually taken? No, Your Honor. I do understand and accept the fact that the intended laws can be much greater than the actual laws. And if it is, then that's the proper number for the court to sentence on. However, there's just no facts to support a calculation of intended laws here. The only facts that were presented are those that support, as Your Honor noted, the potential laws. But it's the court made clearing givers that that is not the same as intended laws. You did official facts. Thank you, Mr

. Parkinson. Thank you. And you as well, Mr. Surrey. Thank you both. Interesting case as well. And we'll take the unatterroader by the way