Legal Case Summary

case we will call now is United States versus Kruger. May please the court. My name is Harvey Weissbarratt for the appellant, and I've reserved two minutes if you will for a rebuttal. All right. Thank you, Mr. Roy. Thank you. I proceed. Your honors. In 1989, the Sentencing Commission drastically revised section 1B1.3 of the Sentencing Guidelines, dealing with a defendant's responsibilities for the acts of another, a conspirator or Confederate. And they did so by turning the focus of foreseeability away from the way that that concept had been traditionally handled in the criminal law guilt comp, you know, law, that aspect of the criminal law. And they did it by limiting a defendant's accountability for the acts of another to the scope of the agreement that that defendant entered into as he understood it. Well, let's get right to the point. Okay. Council, obviously, Judge Hayden was listening to a argument in that regard and decided that 2B1.4 was the applicable guideline, not 1B1.3

. So why when there is a specific guideline, with commentary that appears to be directly on point, would the district court be viewed as wrong or an error for following that guideline? You've jumped me right to another place in our argument. But I agree with your honor that that's where we need to go here. There's three reasons I believe that I can offer as to why the district judge was wrong in that respect. First of all, as an overview, the commentary, as with the guidelines themselves, is no longer binding. It's just advisory. So it doesn't have the force of law as of word. That's true, but the Supreme Court's decision, Stinson has been pointed out to us, talks about how important the commentary is that that's really the definitive insight into how to look at the guidelines, right? Yes, that's true. I can't dance around that anymore. But the guidelines themselves tell us that the purpose of the background to a commentary is not to promulgate binding rules of application, but to provide, quote, reasons underlying the promulgation of the guideline. That's in the 1B1.7. And I think if we do that, if we look to the actual wording of this 2B1.4, and what the drafters said, it's clear that what they were dealing with, and the reason they put that little portion of the commentary in there that's troublesome to us, obviously, us being the appellant, is that they were dealing with and wanted to obviate certain proof problems concerning the difficulty of identifying victims and the loss or gain. And they decided that that was the way to handle that by simply, if there was such a difficulty, to simply attribute everything that the defendant did for the purpose attributed to him, what a co-conspirator did for the purpose of computing that. And that's a- That was not an issue here. Well, that's a policy judgment, right? It's a policy judgment how to approach it. Your complaint is akin to the complaint that people had for years about the crack powder cocaine disparity, that it's not fair to view those as being so vastly different, but the sentence in commission with the back in Congress had made a decision about that, and it was what it was for years

. I mean, they've changed it, some people are still unhappy with it, but it reflects a judgment that the commission has made if the district court judge doesn't disagree with the policy, and some district court judges do, you know, judge break off up in the Southern District, the very wise and good judge, and articulate man has taken issue with it, and so about some others, I'm sure, but the district court here didn't view it as problematic. Why should we insert ourselves and say, no, you've got to take issue with that policy. The district court judge. Well, I think that this court, and I'll try to get back to where I was in my three points, on the guideline, but I think that this court's got to take a broader view, and what I think you're doing here, if you adopt the government's construction, and by the way, a construction that the government never even thought of, until Judge Hayden brought it up, Suasante, at the argument, and there's a number of reasons that point to that. Well, it's pretty clear, I suggest, that they didn't, but it doesn't matter if they were wrong and not thinking of it then, the question is, are they wrong now, and they're certainly entitled to bring it up. I can't say that, but I think it does tell us something. But what this court, I think, should be looking at, is whether in light of that one line in there, that one sentence, and obviously one sentence could kill you as much as two, but in light of that, are we just relegating forcibility to the trash can, in this case, given the importance of forcibility as a foundation stone of criminal sentencing responsibility. And that's what I believe. This is Judge Greenberg. This is significant in terms of the amount of the loss that's been gained. Yes, Your Honor, because the loss attributed to a clougar was the loss... The loss, even though, in a sense, it was a sort of, I don't want to call it a subprime, but a sub deceit going on here. Well, it was clougar that was deceived. Yeah, that's what I mean. Yes, indeed

. I mean, the record is irrefutable, really, as to what we could prove, and some aspects of it are undisputed, at a proper puring, if we had one. And that is that these fellows, the other two, kept to themselves the fact that they were trading, or that Bauer was trading in these enormous amounts that resulted in $35, $37 million, when clougar thought he was dealing with a very small scheme that he had structured exactly that way to keep it small. When you say he had structured it that way to keep it small, is it really fair to say that a fellow who enlists people to take insight information as sophisticated actor, like your client, who, over the course of 17 years, feeds insider information to a securities trade that, and in circumstances where he doesn't look over Mr. Bauer's shoulders, and, he appears to be doing things to make sure there's no way people can connect them to Mr. Bauer. And he's not keeping track of it, so there's no oversight at all. Is it really unforeseeable, and is that Mr. Bauer, who can trade 10,000 shares as easily as one share with the push of a button, would not start taking more money than whatever it was that Mr. Cougar wanted to take for himself? Well, the point is, Your Honor, that that was exactly the issue that should have been addressed, and that we were entitled to have addressed that of an evidentiary hearing. And there's strong factors that support the clougar's view of this. Even if she had had a hearing, what was she going to do? She was going to hear Mr. Cougar say what she'd already heard him say, at least through you, that this was a surprise to him. She doesn't believe it. I mean, she indicated she found it incredible that he could not have foreseen that Bauer would be doing some profiteering on his own. But let me, if I may, let me just bring you back to what it was that Cougar was saying and what backed him up. One is that Cougar, actually with Robinson, would agree on a small number of shares to be bought in any particular instance. And they would pass that along to Bauer

. Let's make it up. A hundred shares of the U.S. steel. And that's what he thought they were doing. Now, when the money came back after the sale, Cougar got exactly the amount that reflected a compliance with that agreement on the part of Bauer. He got back one-third less expenses and taxes that Bauer would have reaped on a hundred shares of U.S. steel, not knowing that Bauer was buying a hundred thousand shares. Now, I failed to see why that would make his story that he had this agreement incredible. Rather, it highlights it and on top of it, as the government belatedly informed Cougar, but in time for the sentencing, the others had agreed, admitted that they hid all this from Cougar. Why? Because they were afraid, and at least that's what we postulate. And I think it's implicit in their letter that they were afraid he would stop the scheme. Because Cougar wanted to keep it small. I understand. The reason is that he was smart enough to know that more modest dealing might avoid the authority seeing what was going on. It didn't reflect his thought at all

. Boy, that's terrible. It would take that much. No, no, I agree. I don't think it reflected any moral compass on his part. We're hard-pressed to defend anything that he did. But the fact is that 1B1.3, and if we're so looking so much at the guidelines, let's look at that, the commission decided that criminal accountability for the acts of another should be limited to what that individual understood to be the scope of the agreement. And this Court, in Lattos, said it was a very significant departure. Let's look at one. I mean, there's two sections to 1B1.3. And the government has made an argument under A1A that your client is directly responsible. But this isn't really an issue. Even if we were to look at 1B1.3 and not to the specific guideline to be 1.4, that we should be looking at subsection A1A of 1B1.3 because that's section Pins liability on Mr

. Kluger as a principal. He's not just a co-conspirator there. He's directly responsible. As an Aitor and a better. I don't even take their argument to be an outlet to the government. I don't even take them to be saying he's an Aitor and a better. Well, I think that's directly responsible. That he's somebody who, under the language of that guideline, participated directly in the criminal behavior and the fact that Bauer does something additional or trades additionally, doesn't mean that the information that was given by Kluger wasn't directly responsible and he's not directly liable for it. What's the problem with their reasoning on the forefront? Well, I think, well, first of all, I don't think that is their reasoning, but they did make a similar argument about 80 hit a betting in any of that. The reason is that that's part of the same section with the 1B1.3, the section that we've been discussing about, a conspirator liability responsibility for the acts of another. So how can we say that that section, that subsection, is rendered meaningless because of the rest of 1B1.3? I mean, I think it's an old adage or a tenant of construction that you've got to give meaning to all the parts of the statute. And I think you're, again, you're just taking foreseeability, which is a huge importance in this context and tossing it away. And before I forget, if I might, I have a feeling I'm interrupting your touch, Jordan. But let me just say that one of the other things is that the government plates places a great stress on is the courts' attention to this in CESPEDEES where you focused on unless otherwise specified in the introduction in 1B1.3

. But I take that to mean that it must be specified in the other section, whatever that other section is. Specified means specifically referenced. That doesn't mean somehow by implication. And there's nothing in to be, I'll get my numbers mixed up, 1.4, that says anything about this is deemed to be an exception to the general rule of foreseeability. In my mind, we agreed with you on this. We would tell the district court to retalkulate what the proposed or no longer proposed, or finding Godloir in range was. And then, make her sentence, taking that modified range into account, and she might or might not change the sentence if they're having done that, is that right? Well, I would love that to happen, but I have to disagree, Your Honor, that she might or might not change the sentence. I think if you accept what we think we could prove, which of course Judge Hayden has now, I think, precluded herself from ruling on, but if you accept that, the amount is, we said it was around 500, 600, 400, and something. The government says, well, that was after taxes, it should be around 900. So if the total loss calculation is somewhere around 2 to 3 million, that would be far, far afield from getting up to the guideline range that governed here, which was up in around 30 million. I don't see how the judge could do it. She would be making a monstrous upward departure. Well, would that sentence that she imposed the excess of the top of the guidelines under the sentence recalculated as you would, not the sentence for the range recalculated as you would figure it? Oh, yes. If I think I understand you're correctly, Judge, the guideline range for the top of the million is made. And I understand this, and I don't blame it, but the principal thing that really bothers, at least in attorney, maybe it's because I don't want a man office, that the attorney, who was like with the biggest most prestigious firms in the United States and knew precisely what he was doing was engaging this over years and years and years. That's a shocking state of affairs, at least I thought it was

. Well, I think Judge Hayden thought that way too, and she very rightly castigated him for his conduct, and we all do. I mean, what can be said about the propriety, particularly where all attorneys in this room, and we pride the integrity of the profession, this little that he said to justify it, but that doesn't mean that he gets a sentence up here when he should get one down here. Well, when you say he gets one up there, when he should get one down here, of course that all depends on it, not accepting your argument. Of course it does. It leads me to ask, since you've raised it here in our argument again, that Judge Hayden has precluded herself from looking at this case again. I read the sentencing hearing, she seemed to handle this with great thought and care. On what basis do you say, as you do in your brief, that if the case really goes back, she couldn't be fair and impartial? Well, I wish I didn't have to defend what I think is the indefensible, but she basically said, not basically, she said that even if we had a hearing, at which Clougar put in all the proffer that Mr. Zegas put before the court at sentencing, that it wouldn't make any difference in her ultimate determination that he was responsible for a Bauer's gain. How can having done that, how could she sit and decide a hearing that she's already decided the outcome of? Well, how about because of at least two reasons? One, because if under 2B1.4, as the applicable guideline range being in place, what he thought is irrelevant, because the guideline, that particular guideline, doesn't ask any question about first and second. Oh, but then there wouldn't be a hearing. Oh, I agree with you. I mean, this is a case. If there were to be a hearing, why also would it not be appropriate for her to say, in effect? I've heard your proffer. Even if he got on the stand and said the things you say, he would say, even if Bauer and Robinson got on the stand and said the things you say, they would say, I'm based on things that have already come before me. It occurs to me that, and the character that crying, this is foreseeable. I could accept your proffer as being 100% accurate

. And even with that, 100% accurate, they get on the stand, they say the things you say they're going to say. I don't believe that this was unforeseeable conduct, because just like you go into a bank robbery, and somebody says, I had no idea they were going to shoot the teller. Did you go into the bank? Did you have a gun? And you couldn't foresee that the gun might be used. You hand inside information to a trader and tell him, hey, we're going to steal money from the public. Oh, I'm shocked that you took more shares. I don't believe it. What's wrong with a sensible judge saying I can accept your proffer and still say that I would find that incredible. That strikes you as over the top bias and unable to fairly handle the case. Absolutely. Absolutely. I don't see how the judge could come to a conclusion about whether Pluger limited himself under 1B1.3. Now, of course, as we said, to be governs that we're at a lock, but under 1B1.3 in determining the scope of his agreement. What else does it mean? It's the same for a drug dealer. They've permitted drug dealers, drug people involved, to say, why didn't know it was going to be 12 tons of marijuana? I thought we were just going to get an ounce or something like that. They permitted that, and there's no exception here for lawyers or other professionals

. So, no, the answer is I clearly, and I have great respect for Judge Hayden. I know her well. And I think she just locked herself in or out, if you will. So, I think here there was, as I said. I don't understand that for this reason. It seems to me that you could say to a judge, no, you're wrong, because we think that if he really understood what was going on, he would not have taken it. I don't like to use the term, but in terms of what you say, happen, crumbs, and just go on a war with that, he would have been saying something. But even if that's true, and the judge made a mistake, it's not the kind of a mistake that's like a personal kind of a thing where you recuse a judge. I mean, judges make mistakes all the time. You know, in finding facts and so forth, but you don't recuse them because of that. Unless there's some personal animosity or questioning of the judge's ability to read, to accept a direction from the appellate court. I mean, why wouldn't she accept the direction if we reversed? Well, in theory, we have to assume that she would try to do it, but I think the case is Judge Greenberger also to the effect that it's not just for a personal bias, where a judge commits themselves to a statement of facts or to a finding rather, not a statement, a finding of fact that that judge cannot go back and revisit that if the case goes back to the judge. You know, years ago I had a case, I'll never forget it. A judge granted a summary judgment in the non-jury case. And we remanded the case, and I can understand what you say. We thought there was a dispute of facts, and I remember writing an opinion, remanding it, and saying the judge was wrong. There wasn't the dispute of facts. Now I'll go to try the case. I have to admit that whatever I sign, remanding the case, I had a feeling it might come out the same way as it did on the summary judgment, after the judge heard the evidence. And actually, of course, it did, but it didn't occur to us that we should recuse the judge from hearing the case and making a determination by assessing all the evidence and weighing it rather than seeing if there was a dispute of facts. It happens all the time. Well, I don't know if it happens all the time, but I see that my time is out. That takes care of that. All right. Thank you, Ms. Royce. I'll save them for a moment. All right. Thanks very much. Ms. Zalowski. May I please the court? Caroline said less young behalf of the United States. Starting with the reassignment, I think it's clear from the record here that the defendant has said we're not talking about an extrajudicial motive or bias that the judge had. It has to do with her analysis of the record and the judges' determinations were made based on her full sum analysis of the record in front of her

. Now I'll go to try the case. I have to admit that whatever I sign, remanding the case, I had a feeling it might come out the same way as it did on the summary judgment, after the judge heard the evidence. And actually, of course, it did, but it didn't occur to us that we should recuse the judge from hearing the case and making a determination by assessing all the evidence and weighing it rather than seeing if there was a dispute of facts. It happens all the time. Well, I don't know if it happens all the time, but I see that my time is out. That takes care of that. All right. Thank you, Ms. Royce. I'll save them for a moment. All right. Thanks very much. Ms. Zalowski. May I please the court? Caroline said less young behalf of the United States. Starting with the reassignment, I think it's clear from the record here that the defendant has said we're not talking about an extrajudicial motive or bias that the judge had. It has to do with her analysis of the record and the judges' determinations were made based on her full sum analysis of the record in front of her. And she decided that the record and extensive portions of Mr. Cloaker's admissions during his plea colloquy, the recordings of him on tape, the proffers made by his co-conspirators all went to show that even if he had testified, she understood the facts to be a certain way. Of course, that's only an issue if you lose, right? And you're not planning to lose. I think it's mid. All right. So let's get to why you think you should win. You've heard Mr. Royce start talk about how the government didn't even raise to be 1.4. So maybe it's really not all that clear that it should apply. Is there a reason why the government didn't make that argument that was judged wrong to say that's the applicable guideline? I think the government was focused on, I think it seemed apparent to the government at sentencing that the reasonable foreseeability of this harm was so obvious that they chose to go sort of with one argument. And I think stepping back on appeal, of course, the judge's decision is defensible for any reason, obvious in the record. So we want to make sure for the court of appeals. I guess I'm asking you as a legal matter, though. What's the right applicable guideline? Is 2B1.4 the correct applicable guideline or did she get that wrong? No, 2B1.4 is the correct applicable guideline

. And she decided that the record and extensive portions of Mr. Cloaker's admissions during his plea colloquy, the recordings of him on tape, the proffers made by his co-conspirators all went to show that even if he had testified, she understood the facts to be a certain way. Of course, that's only an issue if you lose, right? And you're not planning to lose. I think it's mid. All right. So let's get to why you think you should win. You've heard Mr. Royce start talk about how the government didn't even raise to be 1.4. So maybe it's really not all that clear that it should apply. Is there a reason why the government didn't make that argument that was judged wrong to say that's the applicable guideline? I think the government was focused on, I think it seemed apparent to the government at sentencing that the reasonable foreseeability of this harm was so obvious that they chose to go sort of with one argument. And I think stepping back on appeal, of course, the judge's decision is defensible for any reason, obvious in the record. So we want to make sure for the court of appeals. I guess I'm asking you as a legal matter, though. What's the right applicable guideline? Is 2B1.4 the correct applicable guideline or did she get that wrong? No, 2B1.4 is the correct applicable guideline. You do not need to go to 1B1.3 at all because it lays out clearly and what the amount of gain was in the situation. Now what of the argument we've heard from the defense that that throws foreseeability on the ass heap and that can't really be fair or right? Well, even 1B1.3 says foreseeability is not relevant to A1A liability. So foreseeability is not the load star of deciding liability for acts of a defendant. In this case, I think the guidelines just make clear in a complicated area how to handle what could be an unmanageable or unmeasurable amount. And they cut off liability, for instance, for downstream tipping. But I think it's helpful to the courts to have something clear like this set out. And you could say, well, the guidelines are explaining what reasonable foreseeability is in this case in some sense. You know, they're saying if you participate in the act, you are responsible for the gain from the information you provided to people. And that is, in a sense, a concept of reasonable foreseeability, liability, and constraints the defendant's liability, in a sense. You've mentioned subsection A1A. What you want to give us your argument on that. I know what's in your papers. I understood that to be in the nature of an assertion of direct liability as opposed to being merely an Aider and a better but maybe I misunderstood you. You're correct, Your Honor. He's directly responsible

. You do not need to go to 1B1.3 at all because it lays out clearly and what the amount of gain was in the situation. Now what of the argument we've heard from the defense that that throws foreseeability on the ass heap and that can't really be fair or right? Well, even 1B1.3 says foreseeability is not relevant to A1A liability. So foreseeability is not the load star of deciding liability for acts of a defendant. In this case, I think the guidelines just make clear in a complicated area how to handle what could be an unmanageable or unmeasurable amount. And they cut off liability, for instance, for downstream tipping. But I think it's helpful to the courts to have something clear like this set out. And you could say, well, the guidelines are explaining what reasonable foreseeability is in this case in some sense. You know, they're saying if you participate in the act, you are responsible for the gain from the information you provided to people. And that is, in a sense, a concept of reasonable foreseeability, liability, and constraints the defendant's liability, in a sense. You've mentioned subsection A1A. What you want to give us your argument on that. I know what's in your papers. I understood that to be in the nature of an assertion of direct liability as opposed to being merely an Aider and a better but maybe I misunderstood you. You're correct, Your Honor. He's directly responsible. And so he's responsible as a principal. I mean, if the court doesn't find he was a principal, they could also find he wasn't an Aider and a better. A1A has written quite broadly, but he directly participated by providing the inside information for each trade. And so he is responsible as a principal or as an Aider and a better. I mean, it's as many bases for direct responsibility. And what's the foundation for your argument that forcibility doesn't enter into that subsection? That's the plain language of the guideline, 1B1.3 commentary that A1A is not subject to the test for reasonable foreseeability. And that's echoed in this court's decision in Perez 280 F3 at 353. And so, you know, what the role of reasonable foreseeability under 1B1.3 is to talk about acts in which you didn't directly participate. When you're talking about a much broader conspiracy and traditionally under under criminal law, even if you were a small part of that conspiracy, you might be held responsible for the liability of all your coping spearsers. And the commission was concerned with very attenuated responsibility. And here, what's obvious is that this is not a very attenuated, this is not a circumstance of very attenuated actions on the part of his coping spearsers. They're trading on the information he gave them. And, you know, so he's completely unlike someone in a drug conspiracy, you agree to participate in one trade. And even if they know about the other trades, has nothing to do with those other trades. You know, he was responsible for all the trades

. And so he's responsible as a principal. I mean, if the court doesn't find he was a principal, they could also find he wasn't an Aider and a better. A1A has written quite broadly, but he directly participated by providing the inside information for each trade. And so he is responsible as a principal or as an Aider and a better. I mean, it's as many bases for direct responsibility. And what's the foundation for your argument that forcibility doesn't enter into that subsection? That's the plain language of the guideline, 1B1.3 commentary that A1A is not subject to the test for reasonable foreseeability. And that's echoed in this court's decision in Perez 280 F3 at 353. And so, you know, what the role of reasonable foreseeability under 1B1.3 is to talk about acts in which you didn't directly participate. When you're talking about a much broader conspiracy and traditionally under under criminal law, even if you were a small part of that conspiracy, you might be held responsible for the liability of all your coping spearsers. And the commission was concerned with very attenuated responsibility. And here, what's obvious is that this is not a very attenuated, this is not a circumstance of very attenuated actions on the part of his coping spearsers. They're trading on the information he gave them. And, you know, so he's completely unlike someone in a drug conspiracy, you agree to participate in one trade. And even if they know about the other trades, has nothing to do with those other trades. You know, he was responsible for all the trades. I'm curious about the disparity argument that's been put before us really didn't get into that with Ms. Weiss Barb. But that features pretty prominently in the briefing and to attain and did make a point of mentioning her appreciation for that sort of charter list. The first thing of various insider trading, high profile cases that have occurred at around the time that she was dealing with this and very, very largely the defendants were receiving below guideline sentences. And in fact, Mr. Bauer, who got a whole lot more out of this than Mr. Clueger, ends up with a shorter sentence than Mr. Clueger. Why shouldn't we be concerned about disparity in the circumstance like that? Well, I think the factors that the commission and the courts that have been critical of the guidelines observed were not present in the cases where they varied downward from the guidelines were all present here. And indeed the difference between Mr. Bauer and Mr. Clueger is one of those factors. Mr. Clueger was responsible and received an enhancement for an abusive position of trust. He occupied a unique position as an attorney and he did it for an extraordinary amount of time and over and of course of an extraordinary amount of trades. So for his entire legal career from the time he was a summer associate until seven years later through four firms putting down the scheme when he didn't have access picking it up again. Notwithstanding that there were two federal investigations into Bauer's trading that he knew about and over the course of 30 trades taking a lot of pains to hide from law enforcement sets him apart from the other defendants

. I'm curious about the disparity argument that's been put before us really didn't get into that with Ms. Weiss Barb. But that features pretty prominently in the briefing and to attain and did make a point of mentioning her appreciation for that sort of charter list. The first thing of various insider trading, high profile cases that have occurred at around the time that she was dealing with this and very, very largely the defendants were receiving below guideline sentences. And in fact, Mr. Bauer, who got a whole lot more out of this than Mr. Clueger, ends up with a shorter sentence than Mr. Clueger. Why shouldn't we be concerned about disparity in the circumstance like that? Well, I think the factors that the commission and the courts that have been critical of the guidelines observed were not present in the cases where they varied downward from the guidelines were all present here. And indeed the difference between Mr. Bauer and Mr. Clueger is one of those factors. Mr. Clueger was responsible and received an enhancement for an abusive position of trust. He occupied a unique position as an attorney and he did it for an extraordinary amount of time and over and of course of an extraordinary amount of trades. So for his entire legal career from the time he was a summer associate until seven years later through four firms putting down the scheme when he didn't have access picking it up again. Notwithstanding that there were two federal investigations into Bauer's trading that he knew about and over the course of 30 trades taking a lot of pains to hide from law enforcement sets him apart from the other defendants. And again, Mr. Clueger would like this to turn on the amount of money he made but there's so many other components to his scheme. And what the judges were critical of in the second circuit in particular or in the southern district was that that this amount of money would really control the sentencing guidelines scheme when all these other factors sort of how deep into it were you. Well, and what's your role? I mean, it's driving it here too, right? I mean, would you would your position be any different if Mr. Bauer had traded ten times the amount he did? You'd be coming in here, wouldn't you? And with the lost calculation driven by the tables and be saying, no, his guideline, his guideline range is now dictated by that much higher gain. Would I be wrong? Maybe I would be wrong or it's counterfactual, but I don't see any, I don't see any hesitance on the part of the government to say $30 million smack Clueger with the whole Chebang. And I don't think you'd be arguing differently if it was $90 million, would you? Well, it's hard to say it. I mean, I agree with the courts that at some level the number does become meaningless. We're not at that level here. I mean, the question is if he traded, why not? Why not? Because he walks away with something less than 500 grand. And yet the guideline calculation is driven by a number north of 30 million. Well, why isn't that a big enough difference in numbers to cause some concern and to say this whole thing is being driven by a chart that some people in an office in Washington, D.C. with the green eye shades on came up with and not with what's going on in this case. Because that's the, you know, I'm not doing justice to the defense argument, but that seems to be the tenor of it that that's and that certainly is given concern to other thoughtful judges around the country. Why should we not be worried about that? Well, that may be what dictates the guidelines range going into step three of the sentencing and the judge was very aware of those arguments and said, I am not making a determination at the end of the day. This may be where the guideline range puts him

. And again, Mr. Clueger would like this to turn on the amount of money he made but there's so many other components to his scheme. And what the judges were critical of in the second circuit in particular or in the southern district was that that this amount of money would really control the sentencing guidelines scheme when all these other factors sort of how deep into it were you. Well, and what's your role? I mean, it's driving it here too, right? I mean, would you would your position be any different if Mr. Bauer had traded ten times the amount he did? You'd be coming in here, wouldn't you? And with the lost calculation driven by the tables and be saying, no, his guideline, his guideline range is now dictated by that much higher gain. Would I be wrong? Maybe I would be wrong or it's counterfactual, but I don't see any, I don't see any hesitance on the part of the government to say $30 million smack Clueger with the whole Chebang. And I don't think you'd be arguing differently if it was $90 million, would you? Well, it's hard to say it. I mean, I agree with the courts that at some level the number does become meaningless. We're not at that level here. I mean, the question is if he traded, why not? Why not? Because he walks away with something less than 500 grand. And yet the guideline calculation is driven by a number north of 30 million. Well, why isn't that a big enough difference in numbers to cause some concern and to say this whole thing is being driven by a chart that some people in an office in Washington, D.C. with the green eye shades on came up with and not with what's going on in this case. Because that's the, you know, I'm not doing justice to the defense argument, but that seems to be the tenor of it that that's and that certainly is given concern to other thoughtful judges around the country. Why should we not be worried about that? Well, that may be what dictates the guidelines range going into step three of the sentencing and the judge was very aware of those arguments and said, I am not making a determination at the end of the day. This may be where the guideline range puts him. I am aware that many judges have said, this isn't great and I understand where they're coming from. But here I am making my third step determination based on all these other components of his actions, all these other characteristics of his acts. You know, so I do disagree with the defendant when he says that this goes back that judge couldn't do anything else but sentence into a lower sentence. I actually think that was very clear in saying, loss, loss, you were an attorney who did this for 17 years, 30 times over, you didn't care what the loss was. You just cared that you were going to distance yourself as much as possible from this and continue your scheme as long as possible. And you were extremely bold in doing it through the course of two federal investigations. And when it was over, you obstructed justice and told your copen spirit to destroy evidence in this case. And all these factors went into the judge's final determination. And so while the judge has the ability to consider the disparity and did consider the disparity, it ultimately had the discretion to decide this wasn't determinative of its sentence. And that's why it came out where it did. Okay. Thank you. Judge Greenberg, you have any questions? No, I understand the case. Thank you. I heard. Okay. Thank you very much

. I am aware that many judges have said, this isn't great and I understand where they're coming from. But here I am making my third step determination based on all these other components of his actions, all these other characteristics of his acts. You know, so I do disagree with the defendant when he says that this goes back that judge couldn't do anything else but sentence into a lower sentence. I actually think that was very clear in saying, loss, loss, you were an attorney who did this for 17 years, 30 times over, you didn't care what the loss was. You just cared that you were going to distance yourself as much as possible from this and continue your scheme as long as possible. And you were extremely bold in doing it through the course of two federal investigations. And when it was over, you obstructed justice and told your copen spirit to destroy evidence in this case. And all these factors went into the judge's final determination. And so while the judge has the ability to consider the disparity and did consider the disparity, it ultimately had the discretion to decide this wasn't determinative of its sentence. And that's why it came out where it did. Okay. Thank you. Judge Greenberg, you have any questions? No, I understand the case. Thank you. I heard. Okay. Thank you very much. Just briefly, well, it did my reserve. I want to use that just a couple of things. First of all, what Ms. Adelowski just said about what Judge Hayden found in her thinking on this, I think just proves the point why Judge Hayden is so locked in that if there were a remand, it shouldn't go to her. I mean, essentially, what Council was saying is that this is what the judge is going to do anyway. And she made that clear. I think so. Well, it's not like she was saying not what Judge Hayden would do, but that you're not correct about. That too, the driver here being solely gained that too. Now, let me just, let me just advert for a moment to just two other things. One is, of course, you know, we have a much more discretionary argument dealing with the 3553A application. But I think it doesn't go without noting that in that discussion that Judge never even mentioned how much money Cluger actually got out of this. I mean, okay, the guidelines up here because of the chart made by those little green men or the men and women with the green hearts, shades rather. But on the other hand, doesn't the amount that he got that he profited in comparison to somebody like Bauer have any meaning, any significance, even under a discretionary determination? Well, she certainly knew it, but she knew it and she did talk about it. I mean, in the course of the sentencing, it certainly came up, right? Well, it came up earlier in terms of the getting to the guideline range, but when she got to the point where she was really discussing, let's see what sentence I'm going to give now that I've got this range. She never mentioned it again, along with other factors. And I do understand that we're now moving into a much more discretionary area

. Just briefly, well, it did my reserve. I want to use that just a couple of things. First of all, what Ms. Adelowski just said about what Judge Hayden found in her thinking on this, I think just proves the point why Judge Hayden is so locked in that if there were a remand, it shouldn't go to her. I mean, essentially, what Council was saying is that this is what the judge is going to do anyway. And she made that clear. I think so. Well, it's not like she was saying not what Judge Hayden would do, but that you're not correct about. That too, the driver here being solely gained that too. Now, let me just, let me just advert for a moment to just two other things. One is, of course, you know, we have a much more discretionary argument dealing with the 3553A application. But I think it doesn't go without noting that in that discussion that Judge never even mentioned how much money Cluger actually got out of this. I mean, okay, the guidelines up here because of the chart made by those little green men or the men and women with the green hearts, shades rather. But on the other hand, doesn't the amount that he got that he profited in comparison to somebody like Bauer have any meaning, any significance, even under a discretionary determination? Well, she certainly knew it, but she knew it and she did talk about it. I mean, in the course of the sentencing, it certainly came up, right? Well, it came up earlier in terms of the getting to the guideline range, but when she got to the point where she was really discussing, let's see what sentence I'm going to give now that I've got this range. She never mentioned it again, along with other factors. And I do understand that we're now moving into a much more discretionary area. But I think it kind of reflects back. And also, I don't want to sit down without pointing the court again to the forfeiture and the SEC discouragement, both of which were down in the $400,500,000 range. The government had every right, if they believed in this argument, to have said that the clover should forfeit $30 million. I'm maybe a little lottery next week. It's not the first time that they've tried to impose forfeiture amounts on an individual who at the moment doesn't seem to have the assets. This wouldn't be unique at all, but they stuck with that lesser amount. And I think they did it because they were focused on foreseeability when they came in there. As I've already agreed, they could have been wrong then. Maybe they're right now. I hope not, but that was where they were looking. That's just, they even had Robinson available to be a witness in a hearing that they thought was going to happen. Okay, thank you very much. Appreciate the arguments. We'll take the case under advisement.

case we will call now is United States versus Kruger. May please the court. My name is Harvey Weissbarratt for the appellant, and I've reserved two minutes if you will for a rebuttal. All right. Thank you, Mr. Roy. Thank you. I proceed. Your honors. In 1989, the Sentencing Commission drastically revised section 1B1.3 of the Sentencing Guidelines, dealing with a defendant's responsibilities for the acts of another, a conspirator or Confederate. And they did so by turning the focus of foreseeability away from the way that that concept had been traditionally handled in the criminal law guilt comp, you know, law, that aspect of the criminal law. And they did it by limiting a defendant's accountability for the acts of another to the scope of the agreement that that defendant entered into as he understood it. Well, let's get right to the point. Okay. Council, obviously, Judge Hayden was listening to a argument in that regard and decided that 2B1.4 was the applicable guideline, not 1B1.3. So why when there is a specific guideline, with commentary that appears to be directly on point, would the district court be viewed as wrong or an error for following that guideline? You've jumped me right to another place in our argument. But I agree with your honor that that's where we need to go here. There's three reasons I believe that I can offer as to why the district judge was wrong in that respect. First of all, as an overview, the commentary, as with the guidelines themselves, is no longer binding. It's just advisory. So it doesn't have the force of law as of word. That's true, but the Supreme Court's decision, Stinson has been pointed out to us, talks about how important the commentary is that that's really the definitive insight into how to look at the guidelines, right? Yes, that's true. I can't dance around that anymore. But the guidelines themselves tell us that the purpose of the background to a commentary is not to promulgate binding rules of application, but to provide, quote, reasons underlying the promulgation of the guideline. That's in the 1B1.7. And I think if we do that, if we look to the actual wording of this 2B1.4, and what the drafters said, it's clear that what they were dealing with, and the reason they put that little portion of the commentary in there that's troublesome to us, obviously, us being the appellant, is that they were dealing with and wanted to obviate certain proof problems concerning the difficulty of identifying victims and the loss or gain. And they decided that that was the way to handle that by simply, if there was such a difficulty, to simply attribute everything that the defendant did for the purpose attributed to him, what a co-conspirator did for the purpose of computing that. And that's a- That was not an issue here. Well, that's a policy judgment, right? It's a policy judgment how to approach it. Your complaint is akin to the complaint that people had for years about the crack powder cocaine disparity, that it's not fair to view those as being so vastly different, but the sentence in commission with the back in Congress had made a decision about that, and it was what it was for years. I mean, they've changed it, some people are still unhappy with it, but it reflects a judgment that the commission has made if the district court judge doesn't disagree with the policy, and some district court judges do, you know, judge break off up in the Southern District, the very wise and good judge, and articulate man has taken issue with it, and so about some others, I'm sure, but the district court here didn't view it as problematic. Why should we insert ourselves and say, no, you've got to take issue with that policy. The district court judge. Well, I think that this court, and I'll try to get back to where I was in my three points, on the guideline, but I think that this court's got to take a broader view, and what I think you're doing here, if you adopt the government's construction, and by the way, a construction that the government never even thought of, until Judge Hayden brought it up, Suasante, at the argument, and there's a number of reasons that point to that. Well, it's pretty clear, I suggest, that they didn't, but it doesn't matter if they were wrong and not thinking of it then, the question is, are they wrong now, and they're certainly entitled to bring it up. I can't say that, but I think it does tell us something. But what this court, I think, should be looking at, is whether in light of that one line in there, that one sentence, and obviously one sentence could kill you as much as two, but in light of that, are we just relegating forcibility to the trash can, in this case, given the importance of forcibility as a foundation stone of criminal sentencing responsibility. And that's what I believe. This is Judge Greenberg. This is significant in terms of the amount of the loss that's been gained. Yes, Your Honor, because the loss attributed to a clougar was the loss... The loss, even though, in a sense, it was a sort of, I don't want to call it a subprime, but a sub deceit going on here. Well, it was clougar that was deceived. Yeah, that's what I mean. Yes, indeed. I mean, the record is irrefutable, really, as to what we could prove, and some aspects of it are undisputed, at a proper puring, if we had one. And that is that these fellows, the other two, kept to themselves the fact that they were trading, or that Bauer was trading in these enormous amounts that resulted in $35, $37 million, when clougar thought he was dealing with a very small scheme that he had structured exactly that way to keep it small. When you say he had structured it that way to keep it small, is it really fair to say that a fellow who enlists people to take insight information as sophisticated actor, like your client, who, over the course of 17 years, feeds insider information to a securities trade that, and in circumstances where he doesn't look over Mr. Bauer's shoulders, and, he appears to be doing things to make sure there's no way people can connect them to Mr. Bauer. And he's not keeping track of it, so there's no oversight at all. Is it really unforeseeable, and is that Mr. Bauer, who can trade 10,000 shares as easily as one share with the push of a button, would not start taking more money than whatever it was that Mr. Cougar wanted to take for himself? Well, the point is, Your Honor, that that was exactly the issue that should have been addressed, and that we were entitled to have addressed that of an evidentiary hearing. And there's strong factors that support the clougar's view of this. Even if she had had a hearing, what was she going to do? She was going to hear Mr. Cougar say what she'd already heard him say, at least through you, that this was a surprise to him. She doesn't believe it. I mean, she indicated she found it incredible that he could not have foreseen that Bauer would be doing some profiteering on his own. But let me, if I may, let me just bring you back to what it was that Cougar was saying and what backed him up. One is that Cougar, actually with Robinson, would agree on a small number of shares to be bought in any particular instance. And they would pass that along to Bauer. Let's make it up. A hundred shares of the U.S. steel. And that's what he thought they were doing. Now, when the money came back after the sale, Cougar got exactly the amount that reflected a compliance with that agreement on the part of Bauer. He got back one-third less expenses and taxes that Bauer would have reaped on a hundred shares of U.S. steel, not knowing that Bauer was buying a hundred thousand shares. Now, I failed to see why that would make his story that he had this agreement incredible. Rather, it highlights it and on top of it, as the government belatedly informed Cougar, but in time for the sentencing, the others had agreed, admitted that they hid all this from Cougar. Why? Because they were afraid, and at least that's what we postulate. And I think it's implicit in their letter that they were afraid he would stop the scheme. Because Cougar wanted to keep it small. I understand. The reason is that he was smart enough to know that more modest dealing might avoid the authority seeing what was going on. It didn't reflect his thought at all. Boy, that's terrible. It would take that much. No, no, I agree. I don't think it reflected any moral compass on his part. We're hard-pressed to defend anything that he did. But the fact is that 1B1.3, and if we're so looking so much at the guidelines, let's look at that, the commission decided that criminal accountability for the acts of another should be limited to what that individual understood to be the scope of the agreement. And this Court, in Lattos, said it was a very significant departure. Let's look at one. I mean, there's two sections to 1B1.3. And the government has made an argument under A1A that your client is directly responsible. But this isn't really an issue. Even if we were to look at 1B1.3 and not to the specific guideline to be 1.4, that we should be looking at subsection A1A of 1B1.3 because that's section Pins liability on Mr. Kluger as a principal. He's not just a co-conspirator there. He's directly responsible. As an Aitor and a better. I don't even take their argument to be an outlet to the government. I don't even take them to be saying he's an Aitor and a better. Well, I think that's directly responsible. That he's somebody who, under the language of that guideline, participated directly in the criminal behavior and the fact that Bauer does something additional or trades additionally, doesn't mean that the information that was given by Kluger wasn't directly responsible and he's not directly liable for it. What's the problem with their reasoning on the forefront? Well, I think, well, first of all, I don't think that is their reasoning, but they did make a similar argument about 80 hit a betting in any of that. The reason is that that's part of the same section with the 1B1.3, the section that we've been discussing about, a conspirator liability responsibility for the acts of another. So how can we say that that section, that subsection, is rendered meaningless because of the rest of 1B1.3? I mean, I think it's an old adage or a tenant of construction that you've got to give meaning to all the parts of the statute. And I think you're, again, you're just taking foreseeability, which is a huge importance in this context and tossing it away. And before I forget, if I might, I have a feeling I'm interrupting your touch, Jordan. But let me just say that one of the other things is that the government plates places a great stress on is the courts' attention to this in CESPEDEES where you focused on unless otherwise specified in the introduction in 1B1.3. But I take that to mean that it must be specified in the other section, whatever that other section is. Specified means specifically referenced. That doesn't mean somehow by implication. And there's nothing in to be, I'll get my numbers mixed up, 1.4, that says anything about this is deemed to be an exception to the general rule of foreseeability. In my mind, we agreed with you on this. We would tell the district court to retalkulate what the proposed or no longer proposed, or finding Godloir in range was. And then, make her sentence, taking that modified range into account, and she might or might not change the sentence if they're having done that, is that right? Well, I would love that to happen, but I have to disagree, Your Honor, that she might or might not change the sentence. I think if you accept what we think we could prove, which of course Judge Hayden has now, I think, precluded herself from ruling on, but if you accept that, the amount is, we said it was around 500, 600, 400, and something. The government says, well, that was after taxes, it should be around 900. So if the total loss calculation is somewhere around 2 to 3 million, that would be far, far afield from getting up to the guideline range that governed here, which was up in around 30 million. I don't see how the judge could do it. She would be making a monstrous upward departure. Well, would that sentence that she imposed the excess of the top of the guidelines under the sentence recalculated as you would, not the sentence for the range recalculated as you would figure it? Oh, yes. If I think I understand you're correctly, Judge, the guideline range for the top of the million is made. And I understand this, and I don't blame it, but the principal thing that really bothers, at least in attorney, maybe it's because I don't want a man office, that the attorney, who was like with the biggest most prestigious firms in the United States and knew precisely what he was doing was engaging this over years and years and years. That's a shocking state of affairs, at least I thought it was. Well, I think Judge Hayden thought that way too, and she very rightly castigated him for his conduct, and we all do. I mean, what can be said about the propriety, particularly where all attorneys in this room, and we pride the integrity of the profession, this little that he said to justify it, but that doesn't mean that he gets a sentence up here when he should get one down here. Well, when you say he gets one up there, when he should get one down here, of course that all depends on it, not accepting your argument. Of course it does. It leads me to ask, since you've raised it here in our argument again, that Judge Hayden has precluded herself from looking at this case again. I read the sentencing hearing, she seemed to handle this with great thought and care. On what basis do you say, as you do in your brief, that if the case really goes back, she couldn't be fair and impartial? Well, I wish I didn't have to defend what I think is the indefensible, but she basically said, not basically, she said that even if we had a hearing, at which Clougar put in all the proffer that Mr. Zegas put before the court at sentencing, that it wouldn't make any difference in her ultimate determination that he was responsible for a Bauer's gain. How can having done that, how could she sit and decide a hearing that she's already decided the outcome of? Well, how about because of at least two reasons? One, because if under 2B1.4, as the applicable guideline range being in place, what he thought is irrelevant, because the guideline, that particular guideline, doesn't ask any question about first and second. Oh, but then there wouldn't be a hearing. Oh, I agree with you. I mean, this is a case. If there were to be a hearing, why also would it not be appropriate for her to say, in effect? I've heard your proffer. Even if he got on the stand and said the things you say, he would say, even if Bauer and Robinson got on the stand and said the things you say, they would say, I'm based on things that have already come before me. It occurs to me that, and the character that crying, this is foreseeable. I could accept your proffer as being 100% accurate. And even with that, 100% accurate, they get on the stand, they say the things you say they're going to say. I don't believe that this was unforeseeable conduct, because just like you go into a bank robbery, and somebody says, I had no idea they were going to shoot the teller. Did you go into the bank? Did you have a gun? And you couldn't foresee that the gun might be used. You hand inside information to a trader and tell him, hey, we're going to steal money from the public. Oh, I'm shocked that you took more shares. I don't believe it. What's wrong with a sensible judge saying I can accept your proffer and still say that I would find that incredible. That strikes you as over the top bias and unable to fairly handle the case. Absolutely. Absolutely. I don't see how the judge could come to a conclusion about whether Pluger limited himself under 1B1.3. Now, of course, as we said, to be governs that we're at a lock, but under 1B1.3 in determining the scope of his agreement. What else does it mean? It's the same for a drug dealer. They've permitted drug dealers, drug people involved, to say, why didn't know it was going to be 12 tons of marijuana? I thought we were just going to get an ounce or something like that. They permitted that, and there's no exception here for lawyers or other professionals. So, no, the answer is I clearly, and I have great respect for Judge Hayden. I know her well. And I think she just locked herself in or out, if you will. So, I think here there was, as I said. I don't understand that for this reason. It seems to me that you could say to a judge, no, you're wrong, because we think that if he really understood what was going on, he would not have taken it. I don't like to use the term, but in terms of what you say, happen, crumbs, and just go on a war with that, he would have been saying something. But even if that's true, and the judge made a mistake, it's not the kind of a mistake that's like a personal kind of a thing where you recuse a judge. I mean, judges make mistakes all the time. You know, in finding facts and so forth, but you don't recuse them because of that. Unless there's some personal animosity or questioning of the judge's ability to read, to accept a direction from the appellate court. I mean, why wouldn't she accept the direction if we reversed? Well, in theory, we have to assume that she would try to do it, but I think the case is Judge Greenberger also to the effect that it's not just for a personal bias, where a judge commits themselves to a statement of facts or to a finding rather, not a statement, a finding of fact that that judge cannot go back and revisit that if the case goes back to the judge. You know, years ago I had a case, I'll never forget it. A judge granted a summary judgment in the non-jury case. And we remanded the case, and I can understand what you say. We thought there was a dispute of facts, and I remember writing an opinion, remanding it, and saying the judge was wrong. There wasn't the dispute of facts. Now I'll go to try the case. I have to admit that whatever I sign, remanding the case, I had a feeling it might come out the same way as it did on the summary judgment, after the judge heard the evidence. And actually, of course, it did, but it didn't occur to us that we should recuse the judge from hearing the case and making a determination by assessing all the evidence and weighing it rather than seeing if there was a dispute of facts. It happens all the time. Well, I don't know if it happens all the time, but I see that my time is out. That takes care of that. All right. Thank you, Ms. Royce. I'll save them for a moment. All right. Thanks very much. Ms. Zalowski. May I please the court? Caroline said less young behalf of the United States. Starting with the reassignment, I think it's clear from the record here that the defendant has said we're not talking about an extrajudicial motive or bias that the judge had. It has to do with her analysis of the record and the judges' determinations were made based on her full sum analysis of the record in front of her. And she decided that the record and extensive portions of Mr. Cloaker's admissions during his plea colloquy, the recordings of him on tape, the proffers made by his co-conspirators all went to show that even if he had testified, she understood the facts to be a certain way. Of course, that's only an issue if you lose, right? And you're not planning to lose. I think it's mid. All right. So let's get to why you think you should win. You've heard Mr. Royce start talk about how the government didn't even raise to be 1.4. So maybe it's really not all that clear that it should apply. Is there a reason why the government didn't make that argument that was judged wrong to say that's the applicable guideline? I think the government was focused on, I think it seemed apparent to the government at sentencing that the reasonable foreseeability of this harm was so obvious that they chose to go sort of with one argument. And I think stepping back on appeal, of course, the judge's decision is defensible for any reason, obvious in the record. So we want to make sure for the court of appeals. I guess I'm asking you as a legal matter, though. What's the right applicable guideline? Is 2B1.4 the correct applicable guideline or did she get that wrong? No, 2B1.4 is the correct applicable guideline. You do not need to go to 1B1.3 at all because it lays out clearly and what the amount of gain was in the situation. Now what of the argument we've heard from the defense that that throws foreseeability on the ass heap and that can't really be fair or right? Well, even 1B1.3 says foreseeability is not relevant to A1A liability. So foreseeability is not the load star of deciding liability for acts of a defendant. In this case, I think the guidelines just make clear in a complicated area how to handle what could be an unmanageable or unmeasurable amount. And they cut off liability, for instance, for downstream tipping. But I think it's helpful to the courts to have something clear like this set out. And you could say, well, the guidelines are explaining what reasonable foreseeability is in this case in some sense. You know, they're saying if you participate in the act, you are responsible for the gain from the information you provided to people. And that is, in a sense, a concept of reasonable foreseeability, liability, and constraints the defendant's liability, in a sense. You've mentioned subsection A1A. What you want to give us your argument on that. I know what's in your papers. I understood that to be in the nature of an assertion of direct liability as opposed to being merely an Aider and a better but maybe I misunderstood you. You're correct, Your Honor. He's directly responsible. And so he's responsible as a principal. I mean, if the court doesn't find he was a principal, they could also find he wasn't an Aider and a better. A1A has written quite broadly, but he directly participated by providing the inside information for each trade. And so he is responsible as a principal or as an Aider and a better. I mean, it's as many bases for direct responsibility. And what's the foundation for your argument that forcibility doesn't enter into that subsection? That's the plain language of the guideline, 1B1.3 commentary that A1A is not subject to the test for reasonable foreseeability. And that's echoed in this court's decision in Perez 280 F3 at 353. And so, you know, what the role of reasonable foreseeability under 1B1.3 is to talk about acts in which you didn't directly participate. When you're talking about a much broader conspiracy and traditionally under under criminal law, even if you were a small part of that conspiracy, you might be held responsible for the liability of all your coping spearsers. And the commission was concerned with very attenuated responsibility. And here, what's obvious is that this is not a very attenuated, this is not a circumstance of very attenuated actions on the part of his coping spearsers. They're trading on the information he gave them. And, you know, so he's completely unlike someone in a drug conspiracy, you agree to participate in one trade. And even if they know about the other trades, has nothing to do with those other trades. You know, he was responsible for all the trades. I'm curious about the disparity argument that's been put before us really didn't get into that with Ms. Weiss Barb. But that features pretty prominently in the briefing and to attain and did make a point of mentioning her appreciation for that sort of charter list. The first thing of various insider trading, high profile cases that have occurred at around the time that she was dealing with this and very, very largely the defendants were receiving below guideline sentences. And in fact, Mr. Bauer, who got a whole lot more out of this than Mr. Clueger, ends up with a shorter sentence than Mr. Clueger. Why shouldn't we be concerned about disparity in the circumstance like that? Well, I think the factors that the commission and the courts that have been critical of the guidelines observed were not present in the cases where they varied downward from the guidelines were all present here. And indeed the difference between Mr. Bauer and Mr. Clueger is one of those factors. Mr. Clueger was responsible and received an enhancement for an abusive position of trust. He occupied a unique position as an attorney and he did it for an extraordinary amount of time and over and of course of an extraordinary amount of trades. So for his entire legal career from the time he was a summer associate until seven years later through four firms putting down the scheme when he didn't have access picking it up again. Notwithstanding that there were two federal investigations into Bauer's trading that he knew about and over the course of 30 trades taking a lot of pains to hide from law enforcement sets him apart from the other defendants. And again, Mr. Clueger would like this to turn on the amount of money he made but there's so many other components to his scheme. And what the judges were critical of in the second circuit in particular or in the southern district was that that this amount of money would really control the sentencing guidelines scheme when all these other factors sort of how deep into it were you. Well, and what's your role? I mean, it's driving it here too, right? I mean, would you would your position be any different if Mr. Bauer had traded ten times the amount he did? You'd be coming in here, wouldn't you? And with the lost calculation driven by the tables and be saying, no, his guideline, his guideline range is now dictated by that much higher gain. Would I be wrong? Maybe I would be wrong or it's counterfactual, but I don't see any, I don't see any hesitance on the part of the government to say $30 million smack Clueger with the whole Chebang. And I don't think you'd be arguing differently if it was $90 million, would you? Well, it's hard to say it. I mean, I agree with the courts that at some level the number does become meaningless. We're not at that level here. I mean, the question is if he traded, why not? Why not? Because he walks away with something less than 500 grand. And yet the guideline calculation is driven by a number north of 30 million. Well, why isn't that a big enough difference in numbers to cause some concern and to say this whole thing is being driven by a chart that some people in an office in Washington, D.C. with the green eye shades on came up with and not with what's going on in this case. Because that's the, you know, I'm not doing justice to the defense argument, but that seems to be the tenor of it that that's and that certainly is given concern to other thoughtful judges around the country. Why should we not be worried about that? Well, that may be what dictates the guidelines range going into step three of the sentencing and the judge was very aware of those arguments and said, I am not making a determination at the end of the day. This may be where the guideline range puts him. I am aware that many judges have said, this isn't great and I understand where they're coming from. But here I am making my third step determination based on all these other components of his actions, all these other characteristics of his acts. You know, so I do disagree with the defendant when he says that this goes back that judge couldn't do anything else but sentence into a lower sentence. I actually think that was very clear in saying, loss, loss, you were an attorney who did this for 17 years, 30 times over, you didn't care what the loss was. You just cared that you were going to distance yourself as much as possible from this and continue your scheme as long as possible. And you were extremely bold in doing it through the course of two federal investigations. And when it was over, you obstructed justice and told your copen spirit to destroy evidence in this case. And all these factors went into the judge's final determination. And so while the judge has the ability to consider the disparity and did consider the disparity, it ultimately had the discretion to decide this wasn't determinative of its sentence. And that's why it came out where it did. Okay. Thank you. Judge Greenberg, you have any questions? No, I understand the case. Thank you. I heard. Okay. Thank you very much. Just briefly, well, it did my reserve. I want to use that just a couple of things. First of all, what Ms. Adelowski just said about what Judge Hayden found in her thinking on this, I think just proves the point why Judge Hayden is so locked in that if there were a remand, it shouldn't go to her. I mean, essentially, what Council was saying is that this is what the judge is going to do anyway. And she made that clear. I think so. Well, it's not like she was saying not what Judge Hayden would do, but that you're not correct about. That too, the driver here being solely gained that too. Now, let me just, let me just advert for a moment to just two other things. One is, of course, you know, we have a much more discretionary argument dealing with the 3553A application. But I think it doesn't go without noting that in that discussion that Judge never even mentioned how much money Cluger actually got out of this. I mean, okay, the guidelines up here because of the chart made by those little green men or the men and women with the green hearts, shades rather. But on the other hand, doesn't the amount that he got that he profited in comparison to somebody like Bauer have any meaning, any significance, even under a discretionary determination? Well, she certainly knew it, but she knew it and she did talk about it. I mean, in the course of the sentencing, it certainly came up, right? Well, it came up earlier in terms of the getting to the guideline range, but when she got to the point where she was really discussing, let's see what sentence I'm going to give now that I've got this range. She never mentioned it again, along with other factors. And I do understand that we're now moving into a much more discretionary area. But I think it kind of reflects back. And also, I don't want to sit down without pointing the court again to the forfeiture and the SEC discouragement, both of which were down in the $400,500,000 range. The government had every right, if they believed in this argument, to have said that the clover should forfeit $30 million. I'm maybe a little lottery next week. It's not the first time that they've tried to impose forfeiture amounts on an individual who at the moment doesn't seem to have the assets. This wouldn't be unique at all, but they stuck with that lesser amount. And I think they did it because they were focused on foreseeability when they came in there. As I've already agreed, they could have been wrong then. Maybe they're right now. I hope not, but that was where they were looking. That's just, they even had Robinson available to be a witness in a hearing that they thought was going to happen. Okay, thank you very much. Appreciate the arguments. We'll take the case under advisement