Legal Case Summary

. We haven't decided that yet, but other circuits have. Well, other circuits actually the only case that is relied upon by the government that is on point is the Meredith case out of the ninth circuit. And there's no analysis in that case. The only analysis is one sentence and it says because this is a conspiracy for a Title 26 tax offense. And so we're going to find the mandatory restitution applies. Okay, and that's always the case, correct? It's not correct because this is still not a property. It's a conspiracy. It's a conspiracy, but it's not an offense against property. The taxes that were unpaid were never the property of the United States, never within the United States control ownership, dominion, that then we're taken. All right. I mean, in Baldwin is we have to decide that question. Yes. Okay, and we're capable of doing that because it's a question of law. We may decide in your favor, but there's nothing to say that we can't determine that. Well, it's a claim of error that was not raised by Mr. Turner. Mr. Turner challenged the restitution post. But everybody's agreeing and you raised it that it's error. So the error is in front of us and has a purely procedural question. If it's a question of law, which of those acts of law is good a position to decide that as the district court, why would we send it back? Isn't that a wasted judicial resources and shouldn't we decide it if it's a question of law? Because I don't think that the court, if the government didn't challenge it in a cross appeal that it is properly before this court for this court. I put the issue of what the district court did here, which was to impose the discretionary order of restitution. So the issue is exactly before us of whether the victim witness act applies. And if it and in response to that, the government has said, no, it doesn't

. This is the act of the applies. I guess I'm having a little bit of trouble. So your assertion is no cross appeal. It's way. I think there's case law both from the United States Supreme Court, morally construction company versus Maryland, casually company company. And then also this course decision and nationwide mutual insurance versus Kassenza, that says that in the absence of a cross appeal, the appellate court cannot modify the judgment of the district court to enlarge the rights of the government. We wouldn't be doing that. You would be. The issue that's before us is whether or not Mr. Turner should be obligated to pay $400,000 in restitution. That's the issue. You you you you found an appeal on that question. You said he should not be entitled to it because there was no finding of his capability to pay. The government says yes, but even though we didn't raise it below, he's obligated to pay it under the mandatory victim witness act. We have to decide that question. I don't see why it's not before us. You brought it up. It would be different if you hadn't raised restitution on appeal. Right. And then they appear before us and say, oh, by the way. But once you raise it, the issue is there. And what else? I mean, we have a recent case. Try and group where we talked about waiver and said, you know, where there's a need for a factual record. You know, maybe we will find that waiver really is preclusive

. But here, if we were to do what you say, we would be doing what I said originally. We'd be saying, oh, okay, we won't consider that legal issue. We'll, you know, as to whether it's mandatory, we'll send it back for a finding on, you know, for finding the fact on restitution that doesn't apply. I mean, we have to, we have to look at the law since you presented the issue. Right. I think what my point is that I think substantively, even if the court were to do that, were to consider this issue in the government's argument that we should prevail as a substantive matter. I'm procedurally, I understand the court to say, but I think the law is clear, the Supreme Court law and the law from the circuit that where the court where the issue is not properly presented, where it in fact, the resolution would result in the diminishment of Mr. Turner's rights. And I understand the court's position on that, but I want to just the substantive issue is important here because the case that the court relies, but the government relies upon this narrative case out of the night circuit. There's one sentence of analysis and there's a citation to one case that case is not a conspiracy to commit tax offense. It's not restitution that is ordered in a client conspiracy case or in a tax case at all. The case that is relied upon by the ninth circuit in Meredith, the only case is a bankruptcy fraud case where restitution is ordered to creditors under the mandatory victim restitution act. And in that case, this is where the procedural and substantive issue is subtale, the government crossed the peel. The government said, this is a mandatory restitution case and you need to impose restitution under that statute. And that court ultimately agreed not because it was a tax offense, consider a sort of a tax offense because it was a bankruptcy case where the identified victim were creditors who had lent money to a debtor and the debtor had hidden assets, so it's not to have to repay. So it was clearly a property offense in the way that this case, Mr. Turner's case is not. Can I get you to turn to the question of the residual here-safe exception? Yes. And do I understand correctly that your argument in effect concedes three out of the four points of the applicability of the L807 and the real issue that you've got is with whether this is a bank records or a statement of equivalent. I don't want to suggest that we're conceding. I think our strongest point is that they are not equivalent. Are you the others? Well, we've talked about the cooperation here, whether or not these documents are properly corroborated. And the reason that significant it goes to whether or not the government needs to introduce these documents through the residual here-safe exception. Let me ask you this

. Just to make sure I understand what is before someone isn't. I understood you to not be making an argument about material fact. There's not a question whether this is about material fact. That's correct. And I didn't understand you to be making an argument that there was- I didn't understand you to be contesting that these records weren't the most probative of the point that the government was trying to make. That wasn't an issue you had raised, is that correct? Well, it was- it is an issue to the extent that it ties in with the circumstantial guarantees of trustworthiness. So we're going back to that point. So your argument is 807 doesn't apply because there aren't circumstantial guarantees of trustworthiness. In essence, yes. Okay. Thanks. So if that's the point that you're going after, talk to me if you would about what's lacking if you've got documents which are held by the person who has got the most interest in knowing what's accurate or not about the bank account. What's lacking in a guarantee of trustworthiness in the document and then in the circumstances surrounding the seizure here? I think inherently in the documents and we have established exceptions obviously to hear a single one. One of the things that this court can look at is even though this doesn't fit exactly within the business records exception, what are the reasons why we allow business records in without the person who created the record getting on the stand and testifying? And those are things like we know that the records were made in the ordinary course of business. That this is how the custodian or the records were made and they're kept in the ordinary course of business. We don't know anything about the person who created the records here and the IRS agent who through whom the records were admitted didn't know anything about. But don't we look at the records themselves? We can. Again, wouldn't there be some speculation on when you're part as part of the record or some proof that these types of documents are regularly forged or made up or I mean they look like smell like, seem like. And the local documents that documents that were authenticated seem to tie in with them. What is it about them that lacks the trustworthyness? Well, because we don't these are documents that were made in for you know bank in jurisdictions where there's secrecy laws that we don't really know how they're made. They won't produce the documents to the government or to anyone pursuing to a subpoena precisely. So isn't isn't the theory that you're arguing for one in one in which people are actually rewarded not just with substantive benefits but with evidentiary benefits if they secrete their assets overseas because by your theory you can never get those bank records in evidence. Well, you could if you had they had domestic bank records that corroborated some of these transactions so they could have gotten and do get into evidence that domestic bank records. Sure, but the whole point of the transactions is alleged by the government and proved to the satisfaction of the jury beyond a reason that that was that these transactions were taken place overseas

. The whole move your stuff off shore and move it around banks that are offshore and if you do that you'll avoid millions of dollars in taxes. And it sounds like the theory you're propounding is one in which the federal government is never able to prove a case against people like that because you can't ever satisfy fully overcome your safe juction for those kinds of records. I think there are other ways to get in the information. I mean, I think the question here that the court has to decide whether these were exceptional, whether this was the type of exception that should be rarely used, whether extraordinary guarantees of trustworthiness here. And although I understand the necessity that what you're saying is that the government needed the records. I'm not saying anything, I'm asking you to respond to what I understand to be the position being taken by the government that this is the most probative evidence we could have on this point. And there really isn't any other way to get it and you should be satisfied with the document inherent, the inherent quality of the documents as being, hey, these are documents that banks issue and he acted on them. I'm trying to get you to respond to that. Well, I think if you look at the documents themselves, they're not a number of monthly statements that are in consecutive order that have the indisha of the bank for all of these different months. They're select documents that are handwritten on top of the documents that are partially covered by posted notes that are incomplete. And so we really don't have sort of a full accounting of what happened in these different accounts, even if we were to believe that these were records produced by the bank. So do they have the same guarantees of trustworthiness that a dying declaration has or that a statement against interest has and they just don't, the government didn't have enough? What's your best case that something like that is required? I guess I was somewhat surprised that the case law in this area seems pretty lenient. I know in the other cases, I mean, as long as you're put on notice that they're going to assert this, kind of have the opportunity then to poke at them and say, no, these aren't trustworthy because, what's your best case? I think United States versus Palulu, which is a third circuit case from 1992, and it's cited in the brief and there the court reversed for improper admission of the bank records. Yeah, there was notice. I mean, there was a, they didn't, part of it was they didn't give proper notice, but also the court looked at whether or not and discussed that the residual here say exception should not be used to eviscerate the business records. All right, absolutely. All right. Do you want to spend two minutes on the conversations on the admission of the Lovito conversations with Gonzales? Yes, Your Honor, because I don't want it to be that we ask questions on Rebuttal you haven't. I think here, I think the brief is clear that there is no independent on charge conspiracy here. There just isn't evidence of that here. What we have is agreements, a documented agreement between Mr. Turner and Mr. Lovito to sell the book that that is not illegal activity that is not a conspiracy to sell the book. Let me ask you this on your argument under 80801 D2E

. Can, because I can't find a case that we say it, can the testimony that you're objecting to be used to establish the conspiracy without other evidence of the existence of this broader conspiracy? No, and that's in the rule itself. The rule itself says that you can look to the content of what you're trying to admit that that cannot be the exclusive basis for establishing a conspiracy. And that's exactly what the government has argued here is that most of their argument is based upon the recorded conversations of the public. Are you saying that there is no other evidence of the broader conspiracy? No, and the only reported evidence of the government? No, you're not or no. I'm saying there is no other evidence. I'm saying, well first, let me just be clear, I'm saying that the recorded conversations don't establish that there is a conspiracy in the first instance. Okay. Secondly, I'm saying there is nothing outside of those recorded conversations to show a conspiracy to recruit people to become members of the public. If we found that there was, would the evidence you're objecting to therefore be admissible? If you found that there was an unsolved... If we found that there was other evidence of the conspiracy, would that defeat your argument? And you'd also have to find that these conversations were made in furtherance of that conspiracy. Yes, that's correct. And there was no relevance objection lodged generally to these conversations. No, you're on. Okay, I'd like to reserve the time for a rebuttal. All right. Thank you. Mr. Davis? May I please the Court, Gregory Davis, for the United States? Mr. Davis, would you mind starting at the last point? Start with restitution. Quite happy to hear that. No, no, no. The last point

. The last time I said she covered. Certainly go over it. And what other evidence is there in the record of this broader conspiracy, which allows you to admit the conversation? What are the opinions between the alleged co-conspirator of Lotto and the IRS? Well, there are a variety, but let me point to three in particular. Three items in particular. First, Mr. Lovito submitted Agent Rivera's name to the defendant as part to join the defendant's organization. Mr. Lovito encouraged Agent Rivera to participate in the meetings of the organization. And three, which I think is perhaps the most damning, Mr. Lovito told the undercover agent that Mr. Lovito had participated in, along with defendant. And two of the people that, to whom Mr. Lovito had sold the trust package in developing the correct entities and programs to implement their scheme. I think that's a page. I think we discussed that. That page 14 of our brief. I could be wrong. But also, I want to emphasize that the standard review for this court is clear error. The court has to determine whether the district court aired by finding by a preponderance of the doubt. It's a very high standard for the defendant to overcome. And I think here in the district court made clear that if they listened to all the transcripts, the recordings, read the transcripts, there was enough there to evidence the existence of a separate, uncharted conspiracy. Now, defendant makes much of the fact that his office manager and the IRS case agent weren't aware of this agreement. But one of the points of conspiracy is to keep it secret. And the defendant made clear how important secrecy was by saying, you don't keep records for more than three months, pay me in cash

. In order to contact me after you buy this book, you have to have the specific number of the book before I'll talk to you. So secrecy was very important. And so the fact that the Levitas office manager who was involved in some of the sort of receiving calls didn't know about this separate conspiracy really doesn't tell the same. The conspiracy that was charged, the Turner was convicted of, was a conspiracy with the Levitas. Correct. Okay. I like the heavy response to this long assertion that the only reason that conversations went on with Mr. Gonzalez after he purchased the book was because Mr. Gonzalez kept pushing it and pushing it. That there was really nothing going on here, but book sales. What's wrong with the defense argument that whatever evidence you've got here was created by the government's pressing forward after the sale of books? Certainly, Mr. Levitas could have said, I have nothing to do with any of that. Contact the defendant directly and ended a conversation. He didn't do that. He carried on several long at length conversations about sort of responding to questions that the undercover agent had. And telling the undercover agent, as I mentioned before, that I was involved in the sales of a couple of others, two couple of other friends. And I was involved along with defendant in setting up the pro, setting up the deciding what is proper to sort of implement the scheme. What to do in terms of how to make it work for the people to whom it was his soul. Was there any limiting instruction as to how did the jury should consider this evidence? In other words, if it had to do with a different conspiracy, was it necessarily harmless? The jury hears all this stuff and then they say, well, Levitas, he's really in on this and they're really in cahoots, et cetera, et cetera. I guess I'm asking about, I guess I'm basically asking about harmlessness if we find it shouldn't have been admitted. Well, I think obviously our stronger argument is that it should have been admitted. It was properly admitted. To the extent that there was some overlap in the conversations between defendant and the undercover agent that provides some of the same material that is in the undercover tapes. Obviously, it's not going to be totally a total overlap, but there's enough overlap that I think we could argue that it's harmless

. Really? Two hours worth of conversation. I don't like two hours worth of undercover conversations. That's a lot of time to be put in a lot of conversation to be put in front of the jury and then saying, yeah, well, you could just ignore that. But as I said, I really don't have anything to do with the proof. As I said, I think our stronger argument is that the district court did not commit clear error by admitting the testimony. Why should we not hold that you have waived the restitution argument mandatory restitution and say, listen, you had one shot at the apple, you didn't cross appeal. You're foreclosed. I think as you pointed out, the court's been to have to resolve the question. The question of restitution is clearly before the court. We can argue and we do argue that there was a sufficient basis in the record. Now, the government did not argue that the MVRA Section 3663A, C1A to the lie, applied. But it was clear from the record that this was a titillate in offense. Did the court make an absolute finding that it did not apply? I don't think anyone, if I remember correctly, I scanned the transcript again this morning. I think basically the government presented it as an MV as a voluntary witness and voluntary victim and witness press protection acts question. I think Council said the court said it didn't apply. The mandatory did not apply. I don't recall, but I would not be surprised if the court went. Given that the parties were arguing that it was the voluntary act, certainly we did not argue below that it was the... I don't mind that would make it easier for us to address it on the deal if the court determined that it didn't apply. I understand. I simply don't remember the transcripts that well. How are we to know, can you make a representative? Is there anything in part of us that tells us that if the MVRA applies instead of the VWA, the calculation one would reach on the rest of the cushion would be precisely the same? I'm not sure

. In terms of the total dollar amount? Yeah. In terms of the amount that's being demanded for payment. In other words, the... The assertion of the government seems to be, look, the mandatory act is one that applies and so what if the judge said the wrong act since the mandatory act applies? Just apply it. But that takes a jump over the question of if you're applying the voluntary as opposed to the mandatory act, do you come out at the same place at the end in terms of what's owed? I haven't heard the defense argue and maybe I just haven't tuned into it carefully enough. That there would be a difference. I have not seen... Is restitution different under this? How do we know except for the both sides here are treatment like it's maybe the same? I don't believe... I think the restitution I think would be the same under both statutes. I can't cite the case off the top of my head. But I think basically the statutes have the same purpose, which is to make the victim whole. Sure, but... My question is a very practical one. I understand. Can you agree with you that the mandatory act applies? Would we have been in a position to say, harmless error of victim witness doesn't apply mandatory does, but the ruling on restitution stands? Or at that point, would we be obligated to say, you know, what there was error here, the mandatory act applies, were sending it back for a determination of whether there's any difference? Or should we be asking for something in addition from you people to sell it as a matter of law? Why come without the same? I mean, what... This comes to us, frankly, the case is half-day. What are we supposed to do? Certainly, I'm sure that my closing council wouldn't object if we both were to present the court with any findings. Anything that we can find directly on point in terms of whether there's a difference in restitution calculations under the MVRA and the VWPA. It's not something that I was prepared to address. I didn't read anything in the briefs. If it's less, she's waved it. If it's more, you've waved it. No, I don't understand. Just... As my understanding of the acts is that you're attempting to make the victim whole, I find it difficult to believe that there would be a difference in how the government is whole, whether you apply the VWPA or the VWPA. Yeah, well, I'd be inclined to agree with the logic, but, you know, I'd really like to know what the law is. I certainly understand. Would you like to address the bank records because your due terms... Because my time is rapidly slipping by. Just before I do that, just a couple of things on the restitution. Tax dollars are government property just as much as the assets that the government purchases with those tax dollars. And I don't think anyone disagrees that hard assets. I mean, the 8th Circuit in US versus Senti-Hagen 449 Fed 3rd 862 has made it clear that the IRS is an eligible victim under the MVRA. Now, that was a case involving 18 USE 286 and 287 false claims, but still that the IRS can be

.. This comes to us, frankly, the case is half-day. What are we supposed to do? Certainly, I'm sure that my closing council wouldn't object if we both were to present the court with any findings. Anything that we can find directly on point in terms of whether there's a difference in restitution calculations under the MVRA and the VWPA. It's not something that I was prepared to address. I didn't read anything in the briefs. If it's less, she's waved it. If it's more, you've waved it. No, I don't understand. Just... As my understanding of the acts is that you're attempting to make the victim whole, I find it difficult to believe that there would be a difference in how the government is whole, whether you apply the VWPA or the VWPA. Yeah, well, I'd be inclined to agree with the logic, but, you know, I'd really like to know what the law is. I certainly understand. Would you like to address the bank records because your due terms... Because my time is rapidly slipping by. Just before I do that, just a couple of things on the restitution. Tax dollars are government property just as much as the assets that the government purchases with those tax dollars. And I don't think anyone disagrees that hard assets. I mean, the 8th Circuit in US versus Senti-Hagen 449 Fed 3rd 862 has made it clear that the IRS is an eligible victim under the MVRA. Now, that was a case involving 18 USE 286 and 287 false claims, but still that the IRS can be... is qualified as a victim. Now, this court... I did... I looked this morning in terms of 18 USE 371. I found seven cases in which this court has addressed whether or not a 371 count might qualify under the Manituary Victim with Restitution Act. Now, three... four of them are unpublished. They mostly deal with bank fraud. One involves whether or not someone is a deportable for an aggravated felony. You've been there already today. We won't go back. One involves the difference in the statute between the government of the Virgin Islands and basically saying that there's no equivalent with what we have in the federal system. And then there's a fourth case which... basically just generally talked about property

... is qualified as a victim. Now, this court... I did... I looked this morning in terms of 18 USE 371. I found seven cases in which this court has addressed whether or not a 371 count might qualify under the Manituary Victim with Restitution Act. Now, three... four of them are unpublished. They mostly deal with bank fraud. One involves whether or not someone is a deportable for an aggravated felony. You've been there already today. We won't go back. One involves the difference in the statute between the government of the Virgin Islands and basically saying that there's no equivalent with what we have in the federal system. And then there's a fourth case which... basically just generally talked about property. But in terms of defining what qualifies as property, I'm not aware of anything that deals with other than the... there is the 9th Circuit case that we cite in our briefs and that opposing council has... But you would say the bank fraud probably is parallel? Certainly argue. It's very similar. I mean, it's essentially money. It's pretty much the same thing. Someone else is taking money. Actually, taking the money here is refusing to pay the money. But we have... it's money that we have to which we have a right to which is ours. Now, and I will take the hints and move on to the bank records. First, I want to emphasize that as this court explained in US versus right, the district court's determination of whether or not these records have an equivalent circumstantial guarantee of trustworthiness is a very fact specific finding and it's only reversible for clear error. And again... Certainly. A little bit of a conundrum from me. The Supreme Court seems to say that when you are deciding on trustworthiness, there's a confrontation clause aspect to it

. But in terms of defining what qualifies as property, I'm not aware of anything that deals with other than the... there is the 9th Circuit case that we cite in our briefs and that opposing council has... But you would say the bank fraud probably is parallel? Certainly argue. It's very similar. I mean, it's essentially money. It's pretty much the same thing. Someone else is taking money. Actually, taking the money here is refusing to pay the money. But we have... it's money that we have to which we have a right to which is ours. Now, and I will take the hints and move on to the bank records. First, I want to emphasize that as this court explained in US versus right, the district court's determination of whether or not these records have an equivalent circumstantial guarantee of trustworthiness is a very fact specific finding and it's only reversible for clear error. And again... Certainly. A little bit of a conundrum from me. The Supreme Court seems to say that when you are deciding on trustworthiness, there's a confrontation clause aspect to it. And when you're trying to satisfy that, you've got to be looking for inherent trustworthiness. That is, something inherent to the evidence. Case law under 807 talks about circumstantial guarantees of trustworthiness. That is, what are the circumstances surrounding it? To satisfy both the 807 issues about circumstantial guarantees and the confrontation clause aspect of it where you're supposed to be looking at what's inherent. What should we be looking at? Do we look at both? Do we look at one or the other? Well, obviously, the Supreme Court has not decided that Rule 807 is invalid. It still exists. And you need to give it, it needs to be given the fact. And I think to the extent inherent to the extent that the requirement of sort of an inherent requirement, I think... I guess the closest here would be the corroborating bank transactions. I'm not sure that that really is inherent. Let me ask it this way. If we were to say, well, we're going to have to look at circumstantial and inherent guarantees of trustworthiness, what would you point to as inherent about these bank records that would show that they're trustworthy? And that we shouldn't be worried about a confrontation clause issue. Well, I mean, one thing I think is important to remember here is that the conduct that issue occurred between 1991 and 1997 and 1998, the trial was in 2011. Defended was in India for, I think, a 14-year period. So there were difficulties in terms of... This was the best evidence that was available. I see that my time's expired. We'll give you another three minutes. And focus on what's in here. I mean, I understand your point about this is, you know, we really needed this

. And when you're trying to satisfy that, you've got to be looking for inherent trustworthiness. That is, something inherent to the evidence. Case law under 807 talks about circumstantial guarantees of trustworthiness. That is, what are the circumstances surrounding it? To satisfy both the 807 issues about circumstantial guarantees and the confrontation clause aspect of it where you're supposed to be looking at what's inherent. What should we be looking at? Do we look at both? Do we look at one or the other? Well, obviously, the Supreme Court has not decided that Rule 807 is invalid. It still exists. And you need to give it, it needs to be given the fact. And I think to the extent inherent to the extent that the requirement of sort of an inherent requirement, I think... I guess the closest here would be the corroborating bank transactions. I'm not sure that that really is inherent. Let me ask it this way. If we were to say, well, we're going to have to look at circumstantial and inherent guarantees of trustworthiness, what would you point to as inherent about these bank records that would show that they're trustworthy? And that we shouldn't be worried about a confrontation clause issue. Well, I mean, one thing I think is important to remember here is that the conduct that issue occurred between 1991 and 1997 and 1998, the trial was in 2011. Defended was in India for, I think, a 14-year period. So there were difficulties in terms of... This was the best evidence that was available. I see that my time's expired. We'll give you another three minutes. And focus on what's in here. I mean, I understand your point about this is, you know, we really needed this. I have a college. I was in a lot of my phone on. Better you than me. That is true. At least it's not lady, God-gar. So, I think we would have entered this point. What's inherent to the document? Many of the documents are responsive to, or directly responsive to communications from Levitro. They include sort of... They talk about things that Levitro has requested them to do. I think that's probably as close as inherent. The fact is that the bank is acting in response to what is apparently a request from the defendant, from Levitro. Are those circumstances? They are circumstances, but I think the fact... It's inherent. I'm having difficulty to be perfectly honest, coming up with something that is inherent given what we have to work with here. I'm going to say maybe inherently the format where they look like bank documents. But then again, in some... Well, I guess in that era they couldn't. Today, things like that are easily made up on your own

. I have a college. I was in a lot of my phone on. Better you than me. That is true. At least it's not lady, God-gar. So, I think we would have entered this point. What's inherent to the document? Many of the documents are responsive to, or directly responsive to communications from Levitro. They include sort of... They talk about things that Levitro has requested them to do. I think that's probably as close as inherent. The fact is that the bank is acting in response to what is apparently a request from the defendant, from Levitro. Are those circumstances? They are circumstances, but I think the fact... It's inherent. I'm having difficulty to be perfectly honest, coming up with something that is inherent given what we have to work with here. I'm going to say maybe inherently the format where they look like bank documents. But then again, in some... Well, I guess in that era they couldn't. Today, things like that are easily made up on your own. The kind of things that they have that they look like letterhead. But should the court have gone through the documents and parsed out the ones as compared to treating them wholesale? I mean, as your colleague points out there's post it, there's handwritten notes. There's a lot of things in here. Well, the court found that some of them that the Mr. Levitro had adopted by the handwriting on them, and that they were therefore admissible as a party opponent. So to the extent that there are some records that were properly admitted for that reason, because of the post it, and because of the interlination and the handwriting notations, to the extent that the court should have done more, it's a trial court. Again, you look at clear error, and I don't believe the defendant has been able to meet that requirement. Thank you. Thank you. Ms. Long. I want to make a couple of points. I want to start with the restitution issue. The government says that the evidence outside of the recorded conversations themselves that show the existence of a conspiracy is that Mr. Levitro submitted the undercover agent's name to Mr. Turner and recommended him for membership. The site that the government has in its brief for support of that proposition is a letter that was sent from Mr. Turner to the undercover agent. But I think it's important. The recorded conversations between Mr. Turner and the undercover agent occurred prior to that letter being sent when the undercover agent, and these recorded conversations are in the government's supplemental appendix. When the undercover agent contacted Mr. Turner, Mr. Turner didn't know who he was

. The kind of things that they have that they look like letterhead. But should the court have gone through the documents and parsed out the ones as compared to treating them wholesale? I mean, as your colleague points out there's post it, there's handwritten notes. There's a lot of things in here. Well, the court found that some of them that the Mr. Levitro had adopted by the handwriting on them, and that they were therefore admissible as a party opponent. So to the extent that there are some records that were properly admitted for that reason, because of the post it, and because of the interlination and the handwriting notations, to the extent that the court should have done more, it's a trial court. Again, you look at clear error, and I don't believe the defendant has been able to meet that requirement. Thank you. Thank you. Ms. Long. I want to make a couple of points. I want to start with the restitution issue. The government says that the evidence outside of the recorded conversations themselves that show the existence of a conspiracy is that Mr. Levitro submitted the undercover agent's name to Mr. Turner and recommended him for membership. The site that the government has in its brief for support of that proposition is a letter that was sent from Mr. Turner to the undercover agent. But I think it's important. The recorded conversations between Mr. Turner and the undercover agent occurred prior to that letter being sent when the undercover agent, and these recorded conversations are in the government's supplemental appendix. When the undercover agent contacted Mr. Turner, Mr. Turner didn't know who he was. Mr. Turner didn't say as a threshold matter who's referring you, tell me why you're calling me where you got your name. That's not what happened. The undercover agent called him. Mr. Turner didn't know who he was. He said, I don't have you in my system. He took down the undercover agent's name and phone number and contact information. The undercover agent did, later in the conversation, volunteer that he had bought his book from Dan Levitro. But that wasn't a condition precedent to Mr. Turner discussing first American research and the organization with Mr. with the undercover agent. I think that's important that the information that's outside of the recording themselves have to be viewed in context. The second point I wanted to make was, excuse me, just lost my tree. With respect to the substantive, whether or not this is a fence against property, and the government still only points only to the one case, which again, if you look at the case at its sites, does not support the proposition that the ninth circuit. Is that really accurate that they just point to that one case? He's the view of the certain Mr. Turner saying it's in their briefing that they think this is analogous to bank fraud and that just the way the property is taken from a bank is property. The tax revenue there entitled to is property. That's something they rely on. What's wrong with that analogy? Because the property that belongs to a bank is property that belongs to a bank that was fraudulently taken from the bank. Here, this is property that was never the US government's. But it's in the hands of the taxpayers. They're not paying it over. According to the government rightly and duly owing to the government and withheld wrongly

. Mr. Turner didn't say as a threshold matter who's referring you, tell me why you're calling me where you got your name. That's not what happened. The undercover agent called him. Mr. Turner didn't know who he was. He said, I don't have you in my system. He took down the undercover agent's name and phone number and contact information. The undercover agent did, later in the conversation, volunteer that he had bought his book from Dan Levitro. But that wasn't a condition precedent to Mr. Turner discussing first American research and the organization with Mr. with the undercover agent. I think that's important that the information that's outside of the recording themselves have to be viewed in context. The second point I wanted to make was, excuse me, just lost my tree. With respect to the substantive, whether or not this is a fence against property, and the government still only points only to the one case, which again, if you look at the case at its sites, does not support the proposition that the ninth circuit. Is that really accurate that they just point to that one case? He's the view of the certain Mr. Turner saying it's in their briefing that they think this is analogous to bank fraud and that just the way the property is taken from a bank is property. The tax revenue there entitled to is property. That's something they rely on. What's wrong with that analogy? Because the property that belongs to a bank is property that belongs to a bank that was fraudulently taken from the bank. Here, this is property that was never the US government's. But it's in the hands of the taxpayers. They're not paying it over. According to the government rightly and duly owing to the government and withheld wrongly. So in that sense, how is it different from property that the bank holds for somebody else and is taken from the bank? Because it's again not property that was actually within the control of the US government at any point. The US government says we have a claim to that money. The question is whether it's quote property or not for purposes of this particular application of the law. If money can be property in the bank fraud cut-backs, why can't money be property in a tax fraud company? It's not money that's the issue. If you look at a good analogy or a way to look at this, it might be the general theft statute, 18 U.S.C. 641, which is theft of government property. If proceeds are something belongs to the US government, and then they are taken wrongfully, or the US government pays out money to somebody based upon a fraudulent scheme, that's a property offense. That's something that could be prosecuted under 18 U.S.C. 440. You're saying that uncollected taxes are not property? No, and it's not a property. Well, it's not property. It's not an offense against property. It's not a conspiracy that has as the object on offense against property. The government could not have... If I choose to defraud the government and get the government to give me money, if it's not right for mine, or if the government... I owe the government money and take it as a given that it's owed, it's actually money that I should have given to the government and didn't

. So in that sense, how is it different from property that the bank holds for somebody else and is taken from the bank? Because it's again not property that was actually within the control of the US government at any point. The US government says we have a claim to that money. The question is whether it's quote property or not for purposes of this particular application of the law. If money can be property in the bank fraud cut-backs, why can't money be property in a tax fraud company? It's not money that's the issue. If you look at a good analogy or a way to look at this, it might be the general theft statute, 18 U.S.C. 641, which is theft of government property. If proceeds are something belongs to the US government, and then they are taken wrongfully, or the US government pays out money to somebody based upon a fraudulent scheme, that's a property offense. That's something that could be prosecuted under 18 U.S.C. 440. You're saying that uncollected taxes are not property? No, and it's not a property. Well, it's not property. It's not an offense against property. It's not a conspiracy that has as the object on offense against property. The government could not have... If I choose to defraud the government and get the government to give me money, if it's not right for mine, or if the government... I owe the government money and take it as a given that it's owed, it's actually money that I should have given to the government and didn't. In the end, isn't the government out money? Whether it's money I took from them or money I withheld from them, theirs? I'm not disputing that the government is out money. It's whether or not this is an offense against property. So what makes the one where I take the money and offense against property and the other where I withhold the money, not property? Because the money was never the property of... It doesn't say property taken. And technically, all of these are offenses against an entity. I don't think it's the entity that's the issue. I'm not disputing that the IRS could not be a victim under the law. In the bank, in the bankruptcy case, the creditors or people who are victims, it's whether or not some amount of unpaid taxes, undetermined amount of... or the property of the US before in this case, sort of an incoherent... You would say if it were an offense involving property, it would be broader as compared to an offense against property. And I think this statute is quite clear. It's an offense against property. Thank you. The cases will argue if we take it on.

Our queue will take it under advisement and Kohler last case of the morning. Our United States for Stonald Turner. May it please the court. My name is Ali Salong and Assistant Federal Public Defender and I represent Donald Turner. I'd like to reserve three minutes for a rebuttal. That's great. I'd like to start first with the last issue in the brief, the restitution issue just to make a few points. In this issue, we're asking that the court reverse the court's imposition of a ward of restitution under the discretionary restitution statute. The government has conceded that the court did not make the required findings prior to imposing that discretionary award of restitution. And for that reason alone, this case should be remanded for the making of those findings. Well, except if the mandatory victim restitution act applies, why would we send it back for the court to make findings under the law that doesn't apply? There are two reasons, both procedural and substantive. First, procedurally, the district court in this case did make a finding that the mandatory restitution statute did not apply. That mandatory restitution was not a mandatory restitution case. So what the government is asking now for the first time on appeal is that this court reverse the district court. Is that a question or a law? Yes, it's a question or a law, not a finding of that, right? Well, it's a finding that the district court made that the government did not challenge to across appeal that if this court were to essentially substitute a mandatory restitution finding for the discretionary, that does in fact lessen Mr. Turner's rights and enlarge the rights of the government. To the extent that Mr. Turner no longer has the opportunity for the judge in this case to find that he does not have the ability to pay under the discretionary restitution. But if it's mandatory, how does the ability to pay make any difference? I'm talking about the procedural portion of it. Let me go to the substantive. So I think we'll make more sense. This is not a property offense. This is not an offense against property. The mandatory victim's restitution act. That's not a law also. We haven't decided that yet, but other circuits have. Well, other circuits actually the only case that is relied upon by the government that is on point is the Meredith case out of the ninth circuit. And there's no analysis in that case. The only analysis is one sentence and it says because this is a conspiracy for a Title 26 tax offense. And so we're going to find the mandatory restitution applies. Okay, and that's always the case, correct? It's not correct because this is still not a property. It's a conspiracy. It's a conspiracy, but it's not an offense against property. The taxes that were unpaid were never the property of the United States, never within the United States control ownership, dominion, that then we're taken. All right. I mean, in Baldwin is we have to decide that question. Yes. Okay, and we're capable of doing that because it's a question of law. We may decide in your favor, but there's nothing to say that we can't determine that. Well, it's a claim of error that was not raised by Mr. Turner. Mr. Turner challenged the restitution post. But everybody's agreeing and you raised it that it's error. So the error is in front of us and has a purely procedural question. If it's a question of law, which of those acts of law is good a position to decide that as the district court, why would we send it back? Isn't that a wasted judicial resources and shouldn't we decide it if it's a question of law? Because I don't think that the court, if the government didn't challenge it in a cross appeal that it is properly before this court for this court. I put the issue of what the district court did here, which was to impose the discretionary order of restitution. So the issue is exactly before us of whether the victim witness act applies. And if it and in response to that, the government has said, no, it doesn't. This is the act of the applies. I guess I'm having a little bit of trouble. So your assertion is no cross appeal. It's way. I think there's case law both from the United States Supreme Court, morally construction company versus Maryland, casually company company. And then also this course decision and nationwide mutual insurance versus Kassenza, that says that in the absence of a cross appeal, the appellate court cannot modify the judgment of the district court to enlarge the rights of the government. We wouldn't be doing that. You would be. The issue that's before us is whether or not Mr. Turner should be obligated to pay $400,000 in restitution. That's the issue. You you you you found an appeal on that question. You said he should not be entitled to it because there was no finding of his capability to pay. The government says yes, but even though we didn't raise it below, he's obligated to pay it under the mandatory victim witness act. We have to decide that question. I don't see why it's not before us. You brought it up. It would be different if you hadn't raised restitution on appeal. Right. And then they appear before us and say, oh, by the way. But once you raise it, the issue is there. And what else? I mean, we have a recent case. Try and group where we talked about waiver and said, you know, where there's a need for a factual record. You know, maybe we will find that waiver really is preclusive. But here, if we were to do what you say, we would be doing what I said originally. We'd be saying, oh, okay, we won't consider that legal issue. We'll, you know, as to whether it's mandatory, we'll send it back for a finding on, you know, for finding the fact on restitution that doesn't apply. I mean, we have to, we have to look at the law since you presented the issue. Right. I think what my point is that I think substantively, even if the court were to do that, were to consider this issue in the government's argument that we should prevail as a substantive matter. I'm procedurally, I understand the court to say, but I think the law is clear, the Supreme Court law and the law from the circuit that where the court where the issue is not properly presented, where it in fact, the resolution would result in the diminishment of Mr. Turner's rights. And I understand the court's position on that, but I want to just the substantive issue is important here because the case that the court relies, but the government relies upon this narrative case out of the night circuit. There's one sentence of analysis and there's a citation to one case that case is not a conspiracy to commit tax offense. It's not restitution that is ordered in a client conspiracy case or in a tax case at all. The case that is relied upon by the ninth circuit in Meredith, the only case is a bankruptcy fraud case where restitution is ordered to creditors under the mandatory victim restitution act. And in that case, this is where the procedural and substantive issue is subtale, the government crossed the peel. The government said, this is a mandatory restitution case and you need to impose restitution under that statute. And that court ultimately agreed not because it was a tax offense, consider a sort of a tax offense because it was a bankruptcy case where the identified victim were creditors who had lent money to a debtor and the debtor had hidden assets, so it's not to have to repay. So it was clearly a property offense in the way that this case, Mr. Turner's case is not. Can I get you to turn to the question of the residual here-safe exception? Yes. And do I understand correctly that your argument in effect concedes three out of the four points of the applicability of the L807 and the real issue that you've got is with whether this is a bank records or a statement of equivalent. I don't want to suggest that we're conceding. I think our strongest point is that they are not equivalent. Are you the others? Well, we've talked about the cooperation here, whether or not these documents are properly corroborated. And the reason that significant it goes to whether or not the government needs to introduce these documents through the residual here-safe exception. Let me ask you this. Just to make sure I understand what is before someone isn't. I understood you to not be making an argument about material fact. There's not a question whether this is about material fact. That's correct. And I didn't understand you to be making an argument that there was- I didn't understand you to be contesting that these records weren't the most probative of the point that the government was trying to make. That wasn't an issue you had raised, is that correct? Well, it was- it is an issue to the extent that it ties in with the circumstantial guarantees of trustworthiness. So we're going back to that point. So your argument is 807 doesn't apply because there aren't circumstantial guarantees of trustworthiness. In essence, yes. Okay. Thanks. So if that's the point that you're going after, talk to me if you would about what's lacking if you've got documents which are held by the person who has got the most interest in knowing what's accurate or not about the bank account. What's lacking in a guarantee of trustworthiness in the document and then in the circumstances surrounding the seizure here? I think inherently in the documents and we have established exceptions obviously to hear a single one. One of the things that this court can look at is even though this doesn't fit exactly within the business records exception, what are the reasons why we allow business records in without the person who created the record getting on the stand and testifying? And those are things like we know that the records were made in the ordinary course of business. That this is how the custodian or the records were made and they're kept in the ordinary course of business. We don't know anything about the person who created the records here and the IRS agent who through whom the records were admitted didn't know anything about. But don't we look at the records themselves? We can. Again, wouldn't there be some speculation on when you're part as part of the record or some proof that these types of documents are regularly forged or made up or I mean they look like smell like, seem like. And the local documents that documents that were authenticated seem to tie in with them. What is it about them that lacks the trustworthyness? Well, because we don't these are documents that were made in for you know bank in jurisdictions where there's secrecy laws that we don't really know how they're made. They won't produce the documents to the government or to anyone pursuing to a subpoena precisely. So isn't isn't the theory that you're arguing for one in one in which people are actually rewarded not just with substantive benefits but with evidentiary benefits if they secrete their assets overseas because by your theory you can never get those bank records in evidence. Well, you could if you had they had domestic bank records that corroborated some of these transactions so they could have gotten and do get into evidence that domestic bank records. Sure, but the whole point of the transactions is alleged by the government and proved to the satisfaction of the jury beyond a reason that that was that these transactions were taken place overseas. The whole move your stuff off shore and move it around banks that are offshore and if you do that you'll avoid millions of dollars in taxes. And it sounds like the theory you're propounding is one in which the federal government is never able to prove a case against people like that because you can't ever satisfy fully overcome your safe juction for those kinds of records. I think there are other ways to get in the information. I mean, I think the question here that the court has to decide whether these were exceptional, whether this was the type of exception that should be rarely used, whether extraordinary guarantees of trustworthiness here. And although I understand the necessity that what you're saying is that the government needed the records. I'm not saying anything, I'm asking you to respond to what I understand to be the position being taken by the government that this is the most probative evidence we could have on this point. And there really isn't any other way to get it and you should be satisfied with the document inherent, the inherent quality of the documents as being, hey, these are documents that banks issue and he acted on them. I'm trying to get you to respond to that. Well, I think if you look at the documents themselves, they're not a number of monthly statements that are in consecutive order that have the indisha of the bank for all of these different months. They're select documents that are handwritten on top of the documents that are partially covered by posted notes that are incomplete. And so we really don't have sort of a full accounting of what happened in these different accounts, even if we were to believe that these were records produced by the bank. So do they have the same guarantees of trustworthiness that a dying declaration has or that a statement against interest has and they just don't, the government didn't have enough? What's your best case that something like that is required? I guess I was somewhat surprised that the case law in this area seems pretty lenient. I know in the other cases, I mean, as long as you're put on notice that they're going to assert this, kind of have the opportunity then to poke at them and say, no, these aren't trustworthy because, what's your best case? I think United States versus Palulu, which is a third circuit case from 1992, and it's cited in the brief and there the court reversed for improper admission of the bank records. Yeah, there was notice. I mean, there was a, they didn't, part of it was they didn't give proper notice, but also the court looked at whether or not and discussed that the residual here say exception should not be used to eviscerate the business records. All right, absolutely. All right. Do you want to spend two minutes on the conversations on the admission of the Lovito conversations with Gonzales? Yes, Your Honor, because I don't want it to be that we ask questions on Rebuttal you haven't. I think here, I think the brief is clear that there is no independent on charge conspiracy here. There just isn't evidence of that here. What we have is agreements, a documented agreement between Mr. Turner and Mr. Lovito to sell the book that that is not illegal activity that is not a conspiracy to sell the book. Let me ask you this on your argument under 80801 D2E. Can, because I can't find a case that we say it, can the testimony that you're objecting to be used to establish the conspiracy without other evidence of the existence of this broader conspiracy? No, and that's in the rule itself. The rule itself says that you can look to the content of what you're trying to admit that that cannot be the exclusive basis for establishing a conspiracy. And that's exactly what the government has argued here is that most of their argument is based upon the recorded conversations of the public. Are you saying that there is no other evidence of the broader conspiracy? No, and the only reported evidence of the government? No, you're not or no. I'm saying there is no other evidence. I'm saying, well first, let me just be clear, I'm saying that the recorded conversations don't establish that there is a conspiracy in the first instance. Okay. Secondly, I'm saying there is nothing outside of those recorded conversations to show a conspiracy to recruit people to become members of the public. If we found that there was, would the evidence you're objecting to therefore be admissible? If you found that there was an unsolved... If we found that there was other evidence of the conspiracy, would that defeat your argument? And you'd also have to find that these conversations were made in furtherance of that conspiracy. Yes, that's correct. And there was no relevance objection lodged generally to these conversations. No, you're on. Okay, I'd like to reserve the time for a rebuttal. All right. Thank you. Mr. Davis? May I please the Court, Gregory Davis, for the United States? Mr. Davis, would you mind starting at the last point? Start with restitution. Quite happy to hear that. No, no, no. The last point. The last time I said she covered. Certainly go over it. And what other evidence is there in the record of this broader conspiracy, which allows you to admit the conversation? What are the opinions between the alleged co-conspirator of Lotto and the IRS? Well, there are a variety, but let me point to three in particular. Three items in particular. First, Mr. Lovito submitted Agent Rivera's name to the defendant as part to join the defendant's organization. Mr. Lovito encouraged Agent Rivera to participate in the meetings of the organization. And three, which I think is perhaps the most damning, Mr. Lovito told the undercover agent that Mr. Lovito had participated in, along with defendant. And two of the people that, to whom Mr. Lovito had sold the trust package in developing the correct entities and programs to implement their scheme. I think that's a page. I think we discussed that. That page 14 of our brief. I could be wrong. But also, I want to emphasize that the standard review for this court is clear error. The court has to determine whether the district court aired by finding by a preponderance of the doubt. It's a very high standard for the defendant to overcome. And I think here in the district court made clear that if they listened to all the transcripts, the recordings, read the transcripts, there was enough there to evidence the existence of a separate, uncharted conspiracy. Now, defendant makes much of the fact that his office manager and the IRS case agent weren't aware of this agreement. But one of the points of conspiracy is to keep it secret. And the defendant made clear how important secrecy was by saying, you don't keep records for more than three months, pay me in cash. In order to contact me after you buy this book, you have to have the specific number of the book before I'll talk to you. So secrecy was very important. And so the fact that the Levitas office manager who was involved in some of the sort of receiving calls didn't know about this separate conspiracy really doesn't tell the same. The conspiracy that was charged, the Turner was convicted of, was a conspiracy with the Levitas. Correct. Okay. I like the heavy response to this long assertion that the only reason that conversations went on with Mr. Gonzalez after he purchased the book was because Mr. Gonzalez kept pushing it and pushing it. That there was really nothing going on here, but book sales. What's wrong with the defense argument that whatever evidence you've got here was created by the government's pressing forward after the sale of books? Certainly, Mr. Levitas could have said, I have nothing to do with any of that. Contact the defendant directly and ended a conversation. He didn't do that. He carried on several long at length conversations about sort of responding to questions that the undercover agent had. And telling the undercover agent, as I mentioned before, that I was involved in the sales of a couple of others, two couple of other friends. And I was involved along with defendant in setting up the pro, setting up the deciding what is proper to sort of implement the scheme. What to do in terms of how to make it work for the people to whom it was his soul. Was there any limiting instruction as to how did the jury should consider this evidence? In other words, if it had to do with a different conspiracy, was it necessarily harmless? The jury hears all this stuff and then they say, well, Levitas, he's really in on this and they're really in cahoots, et cetera, et cetera. I guess I'm asking about, I guess I'm basically asking about harmlessness if we find it shouldn't have been admitted. Well, I think obviously our stronger argument is that it should have been admitted. It was properly admitted. To the extent that there was some overlap in the conversations between defendant and the undercover agent that provides some of the same material that is in the undercover tapes. Obviously, it's not going to be totally a total overlap, but there's enough overlap that I think we could argue that it's harmless. Really? Two hours worth of conversation. I don't like two hours worth of undercover conversations. That's a lot of time to be put in a lot of conversation to be put in front of the jury and then saying, yeah, well, you could just ignore that. But as I said, I really don't have anything to do with the proof. As I said, I think our stronger argument is that the district court did not commit clear error by admitting the testimony. Why should we not hold that you have waived the restitution argument mandatory restitution and say, listen, you had one shot at the apple, you didn't cross appeal. You're foreclosed. I think as you pointed out, the court's been to have to resolve the question. The question of restitution is clearly before the court. We can argue and we do argue that there was a sufficient basis in the record. Now, the government did not argue that the MVRA Section 3663A, C1A to the lie, applied. But it was clear from the record that this was a titillate in offense. Did the court make an absolute finding that it did not apply? I don't think anyone, if I remember correctly, I scanned the transcript again this morning. I think basically the government presented it as an MV as a voluntary witness and voluntary victim and witness press protection acts question. I think Council said the court said it didn't apply. The mandatory did not apply. I don't recall, but I would not be surprised if the court went. Given that the parties were arguing that it was the voluntary act, certainly we did not argue below that it was the... I don't mind that would make it easier for us to address it on the deal if the court determined that it didn't apply. I understand. I simply don't remember the transcripts that well. How are we to know, can you make a representative? Is there anything in part of us that tells us that if the MVRA applies instead of the VWA, the calculation one would reach on the rest of the cushion would be precisely the same? I'm not sure. In terms of the total dollar amount? Yeah. In terms of the amount that's being demanded for payment. In other words, the... The assertion of the government seems to be, look, the mandatory act is one that applies and so what if the judge said the wrong act since the mandatory act applies? Just apply it. But that takes a jump over the question of if you're applying the voluntary as opposed to the mandatory act, do you come out at the same place at the end in terms of what's owed? I haven't heard the defense argue and maybe I just haven't tuned into it carefully enough. That there would be a difference. I have not seen... Is restitution different under this? How do we know except for the both sides here are treatment like it's maybe the same? I don't believe... I think the restitution I think would be the same under both statutes. I can't cite the case off the top of my head. But I think basically the statutes have the same purpose, which is to make the victim whole. Sure, but... My question is a very practical one. I understand. Can you agree with you that the mandatory act applies? Would we have been in a position to say, harmless error of victim witness doesn't apply mandatory does, but the ruling on restitution stands? Or at that point, would we be obligated to say, you know, what there was error here, the mandatory act applies, were sending it back for a determination of whether there's any difference? Or should we be asking for something in addition from you people to sell it as a matter of law? Why come without the same? I mean, what... This comes to us, frankly, the case is half-day. What are we supposed to do? Certainly, I'm sure that my closing council wouldn't object if we both were to present the court with any findings. Anything that we can find directly on point in terms of whether there's a difference in restitution calculations under the MVRA and the VWPA. It's not something that I was prepared to address. I didn't read anything in the briefs. If it's less, she's waved it. If it's more, you've waved it. No, I don't understand. Just... As my understanding of the acts is that you're attempting to make the victim whole, I find it difficult to believe that there would be a difference in how the government is whole, whether you apply the VWPA or the VWPA. Yeah, well, I'd be inclined to agree with the logic, but, you know, I'd really like to know what the law is. I certainly understand. Would you like to address the bank records because your due terms... Because my time is rapidly slipping by. Just before I do that, just a couple of things on the restitution. Tax dollars are government property just as much as the assets that the government purchases with those tax dollars. And I don't think anyone disagrees that hard assets. I mean, the 8th Circuit in US versus Senti-Hagen 449 Fed 3rd 862 has made it clear that the IRS is an eligible victim under the MVRA. Now, that was a case involving 18 USE 286 and 287 false claims, but still that the IRS can be... is qualified as a victim. Now, this court... I did... I looked this morning in terms of 18 USE 371. I found seven cases in which this court has addressed whether or not a 371 count might qualify under the Manituary Victim with Restitution Act. Now, three... four of them are unpublished. They mostly deal with bank fraud. One involves whether or not someone is a deportable for an aggravated felony. You've been there already today. We won't go back. One involves the difference in the statute between the government of the Virgin Islands and basically saying that there's no equivalent with what we have in the federal system. And then there's a fourth case which... basically just generally talked about property. But in terms of defining what qualifies as property, I'm not aware of anything that deals with other than the... there is the 9th Circuit case that we cite in our briefs and that opposing council has... But you would say the bank fraud probably is parallel? Certainly argue. It's very similar. I mean, it's essentially money. It's pretty much the same thing. Someone else is taking money. Actually, taking the money here is refusing to pay the money. But we have... it's money that we have to which we have a right to which is ours. Now, and I will take the hints and move on to the bank records. First, I want to emphasize that as this court explained in US versus right, the district court's determination of whether or not these records have an equivalent circumstantial guarantee of trustworthiness is a very fact specific finding and it's only reversible for clear error. And again... Certainly. A little bit of a conundrum from me. The Supreme Court seems to say that when you are deciding on trustworthiness, there's a confrontation clause aspect to it. And when you're trying to satisfy that, you've got to be looking for inherent trustworthiness. That is, something inherent to the evidence. Case law under 807 talks about circumstantial guarantees of trustworthiness. That is, what are the circumstances surrounding it? To satisfy both the 807 issues about circumstantial guarantees and the confrontation clause aspect of it where you're supposed to be looking at what's inherent. What should we be looking at? Do we look at both? Do we look at one or the other? Well, obviously, the Supreme Court has not decided that Rule 807 is invalid. It still exists. And you need to give it, it needs to be given the fact. And I think to the extent inherent to the extent that the requirement of sort of an inherent requirement, I think... I guess the closest here would be the corroborating bank transactions. I'm not sure that that really is inherent. Let me ask it this way. If we were to say, well, we're going to have to look at circumstantial and inherent guarantees of trustworthiness, what would you point to as inherent about these bank records that would show that they're trustworthy? And that we shouldn't be worried about a confrontation clause issue. Well, I mean, one thing I think is important to remember here is that the conduct that issue occurred between 1991 and 1997 and 1998, the trial was in 2011. Defended was in India for, I think, a 14-year period. So there were difficulties in terms of... This was the best evidence that was available. I see that my time's expired. We'll give you another three minutes. And focus on what's in here. I mean, I understand your point about this is, you know, we really needed this. I have a college. I was in a lot of my phone on. Better you than me. That is true. At least it's not lady, God-gar. So, I think we would have entered this point. What's inherent to the document? Many of the documents are responsive to, or directly responsive to communications from Levitro. They include sort of... They talk about things that Levitro has requested them to do. I think that's probably as close as inherent. The fact is that the bank is acting in response to what is apparently a request from the defendant, from Levitro. Are those circumstances? They are circumstances, but I think the fact... It's inherent. I'm having difficulty to be perfectly honest, coming up with something that is inherent given what we have to work with here. I'm going to say maybe inherently the format where they look like bank documents. But then again, in some... Well, I guess in that era they couldn't. Today, things like that are easily made up on your own. The kind of things that they have that they look like letterhead. But should the court have gone through the documents and parsed out the ones as compared to treating them wholesale? I mean, as your colleague points out there's post it, there's handwritten notes. There's a lot of things in here. Well, the court found that some of them that the Mr. Levitro had adopted by the handwriting on them, and that they were therefore admissible as a party opponent. So to the extent that there are some records that were properly admitted for that reason, because of the post it, and because of the interlination and the handwriting notations, to the extent that the court should have done more, it's a trial court. Again, you look at clear error, and I don't believe the defendant has been able to meet that requirement. Thank you. Thank you. Ms. Long. I want to make a couple of points. I want to start with the restitution issue. The government says that the evidence outside of the recorded conversations themselves that show the existence of a conspiracy is that Mr. Levitro submitted the undercover agent's name to Mr. Turner and recommended him for membership. The site that the government has in its brief for support of that proposition is a letter that was sent from Mr. Turner to the undercover agent. But I think it's important. The recorded conversations between Mr. Turner and the undercover agent occurred prior to that letter being sent when the undercover agent, and these recorded conversations are in the government's supplemental appendix. When the undercover agent contacted Mr. Turner, Mr. Turner didn't know who he was. Mr. Turner didn't say as a threshold matter who's referring you, tell me why you're calling me where you got your name. That's not what happened. The undercover agent called him. Mr. Turner didn't know who he was. He said, I don't have you in my system. He took down the undercover agent's name and phone number and contact information. The undercover agent did, later in the conversation, volunteer that he had bought his book from Dan Levitro. But that wasn't a condition precedent to Mr. Turner discussing first American research and the organization with Mr. with the undercover agent. I think that's important that the information that's outside of the recording themselves have to be viewed in context. The second point I wanted to make was, excuse me, just lost my tree. With respect to the substantive, whether or not this is a fence against property, and the government still only points only to the one case, which again, if you look at the case at its sites, does not support the proposition that the ninth circuit. Is that really accurate that they just point to that one case? He's the view of the certain Mr. Turner saying it's in their briefing that they think this is analogous to bank fraud and that just the way the property is taken from a bank is property. The tax revenue there entitled to is property. That's something they rely on. What's wrong with that analogy? Because the property that belongs to a bank is property that belongs to a bank that was fraudulently taken from the bank. Here, this is property that was never the US government's. But it's in the hands of the taxpayers. They're not paying it over. According to the government rightly and duly owing to the government and withheld wrongly. So in that sense, how is it different from property that the bank holds for somebody else and is taken from the bank? Because it's again not property that was actually within the control of the US government at any point. The US government says we have a claim to that money. The question is whether it's quote property or not for purposes of this particular application of the law. If money can be property in the bank fraud cut-backs, why can't money be property in a tax fraud company? It's not money that's the issue. If you look at a good analogy or a way to look at this, it might be the general theft statute, 18 U.S.C. 641, which is theft of government property. If proceeds are something belongs to the US government, and then they are taken wrongfully, or the US government pays out money to somebody based upon a fraudulent scheme, that's a property offense. That's something that could be prosecuted under 18 U.S.C. 440. You're saying that uncollected taxes are not property? No, and it's not a property. Well, it's not property. It's not an offense against property. It's not a conspiracy that has as the object on offense against property. The government could not have... If I choose to defraud the government and get the government to give me money, if it's not right for mine, or if the government... I owe the government money and take it as a given that it's owed, it's actually money that I should have given to the government and didn't. In the end, isn't the government out money? Whether it's money I took from them or money I withheld from them, theirs? I'm not disputing that the government is out money. It's whether or not this is an offense against property. So what makes the one where I take the money and offense against property and the other where I withhold the money, not property? Because the money was never the property of... It doesn't say property taken. And technically, all of these are offenses against an entity. I don't think it's the entity that's the issue. I'm not disputing that the IRS could not be a victim under the law. In the bank, in the bankruptcy case, the creditors or people who are victims, it's whether or not some amount of unpaid taxes, undetermined amount of... or the property of the US before in this case, sort of an incoherent... You would say if it were an offense involving property, it would be broader as compared to an offense against property. And I think this statute is quite clear. It's an offense against property. Thank you. The cases will argue if we take it on