[00:00:00] Speaker 02:
We'll call the next case.

[00:00:02] Speaker 02:
Looks like Ms.

[00:00:02] Speaker 02:
Miller gets to remain seated.

[00:00:04] Speaker 02:
24-1411, United States versus Rager.

[00:00:18] Speaker 04:
It may please the court.

[00:00:20] Speaker 04:
The first question presented is this.

[00:00:23] Speaker 04:
Under what circumstances can the seller of a lawful product be convicted as an accomplice

[00:00:29] Speaker 04:
when he knows a customer will use that product to commit a crime.

[00:00:37] Speaker 04:
The Supreme Court answered that question in Rosemont.

[00:00:46] Speaker 04:
An accomplice must actively participate in the underlying criminal venture.

[00:00:51] Speaker 04:
The instructions here fail that test, allowing conviction based on intentional participation.

[00:00:58] Speaker 04:
These are not interchangeable terms.

[00:01:00] Speaker 00:
Well, why isn't your Rosemond challenge really a sufficiency challenge?

[00:01:08] Speaker 00:
And it feels like that is how the district court thought there might be something there had you made that argument, that when you're focusing on the quantum, the degree of participation, that really what you're saying here is,

[00:01:23] Speaker 00:
your client's participation was too minor to support his criminal liability.

[00:01:29] Speaker 04:
It's a good and fair question, Your Honor.

[00:01:32] Speaker 04:
Insofar as every instructional claim has a steep toehold in sufficiency claims, I agree.

[00:01:41] Speaker 04:
But what we lacked here was the toehold.

[00:01:44] Speaker 04:
We needed the instructional hook to say to the jury, we lacked, we weren't active.

[00:01:50] Speaker 04:
We were incidental facilitators of this crime.

[00:01:53] Speaker 04:
not active participants.

[00:01:55] Speaker 00:
So your position is that the text of the jury instruction that was provided to the jury here prevented you from making that argument?

[00:02:05] Speaker 04:
Yes.

[00:02:06] Speaker 04:
The absence of an instruction that required the jury to do what we asked, and that is distinguish at the threshold whether this is a confederate actively participating with the insiders or instead an incidental facilitator

[00:02:24] Speaker 04:
standing outside the venture but interacting with the principals is a gateway critical distinction that our instruction asks for.

[00:02:33] Speaker 00:
Do you know if our jury instruction is unique among the circuits and do other circuits use the active participation language and we don't?

[00:02:43] Speaker 04:
That's correct.

[00:02:45] Speaker 04:
I'm not aware of any pattern instruction that includes the active participation requirement.

[00:02:53] Speaker 04:
anticipating your question.

[00:02:55] Speaker 04:
I don't know why.

[00:02:56] Speaker 04:
I have a theory.

[00:02:57] Speaker 04:
And that's because it's often given in practice.

[00:03:00] Speaker 04:
In fact, in this very circuit, courts in Rosemont itself instructed the jury that the defendant must be actively participating in the venture to be convicted as an accomplice.

[00:03:13] Speaker 04:
Because you see, these are different elements.

[00:03:16] Speaker 04:
Impenetrable participation, which is in the pattern instruction appropriately, is mens rea.

[00:03:25] Speaker 04:
Active participation is actus reus.

[00:03:27] Speaker 04:
And that distinction is vital to police this boundary that I just gestured at between an insider and an outsider.

[00:03:39] Speaker 04:
Layer that on top of the problem here is that we're selling a lot, Mr. Rieger is selling a lawful product.

[00:03:55] Speaker 02:
Not to go back to the last case, you were listening, so I'm sure Ms.

[00:04:02] Speaker 02:
Miller might say this again.

[00:04:04] Speaker 02:
But take the chemical company.

[00:04:08] Speaker 02:
I'm a salesman for a chemical company, and I get paid a commission, and I know, and you come to me to buy the chemicals you need to make meth.

[00:04:25] Speaker 02:
And I know you're making meth, but I don't really care because I'm going to make a commission off of it and you buy a lot.

[00:04:37] Speaker 02:
And so I'd facilitate either, you know, as an active Confederate or otherwise, you're making of meth by selling you the product.

[00:04:49] Speaker 02:
Is that a problem?

[00:04:50] Speaker 04:
Well, Ms.

[00:04:50] Speaker 04:
Miller, I'm sure knows what I'm going to say.

[00:04:54] Speaker 04:
It is a problem, and we don't have to go to the chemical seller.

[00:04:58] Speaker 04:
How about the gun shop owner in Rosemont's footnote 8, who probably, the Supreme Court indicated, is not liable as an accomplice for selling.

[00:05:09] Speaker 00:
Well, the court didn't pass on that.

[00:05:11] Speaker 00:
I mean, explicitly didn't pass on that, right?

[00:05:13] Speaker 04:
Well, it reserved.

[00:05:14] Speaker 04:
That's true.

[00:05:14] Speaker 04:
It reserved the question.

[00:05:17] Speaker 04:
But it did note two things.

[00:05:18] Speaker 04:
One, no prior Supreme Court

[00:05:20] Speaker 04:
case, and I can tell you none since Rosemont, have ever found an incidental facilitator criminally liable, one.

[00:05:29] Speaker 04:
And two, even in Rosemont itself, the court refused to entertain any factual scenario in which an incidental facilitator could be liable.

[00:05:41] Speaker 04:
So I agree, Judge Rosman.

[00:05:43] Speaker 00:
Sorry, please go ahead.

[00:05:44] Speaker 04:
I agree.

[00:05:45] Speaker 04:
The holding of footnote eight is not incidental facilitators.

[00:05:50] Speaker 04:
are criminally exempt, but I think the implication is clear.

[00:05:55] Speaker 00:
What do we do with our cases like Bowen that say that participation of a relatively slight moment is sufficient?

[00:06:03] Speaker 00:
But what do we do with, how do we, should we be thinking about that sort of understanding of what the law requires and receiving your argument?

[00:06:12] Speaker 04:
Yes, that's, I think we're getting to the nub of the question here.

[00:06:18] Speaker 04:
Active participation and minimal contribution to the crime operate on different axes.

[00:06:26] Speaker 04:
They answer different questions.

[00:06:29] Speaker 04:
Active participation is a threshold gateway determination.

[00:06:33] Speaker 04:
Are you in or out of this venture?

[00:06:37] Speaker 04:
Once you're in, says the law, we don't care how minimal

[00:06:43] Speaker 04:
or trivial even your contribution or how important your contribution is to the crime.

[00:06:51] Speaker 04:
And in fact, that's Rosemont, defendant Rosemont's argument was he admitted actively participating in one element of the crime and then asked, I think preposterously, that he had to, the government had to prove he actively participated in every element of the crime.

[00:07:10] Speaker 04:
The court said that's not how aiding and abetting law works.

[00:07:14] Speaker 04:
You have to be an active participant in one part.

[00:07:16] Speaker 04:
And once you're in, then you can be a minimal contributor to the overall success of the crime.

[00:07:23] Speaker 04:
We wanted what Rosemont got, which is the instruction requiring active participation in the criminal venture.

[00:07:31] Speaker 02:
Does it matter that he had personal gain from selling the list to these folks?

[00:07:40] Speaker 04:
It's relevant.

[00:07:42] Speaker 04:
He had very small gain.

[00:07:43] Speaker 04:
The government couldn't just determine how much gain.

[00:07:48] Speaker 04:
It filed a pleading, sort of, for swearing the ability to determine gain.

[00:07:53] Speaker 04:
But recall that the government's chief witness described the contribution of the scam mailers as minuscule to Mr. Rieger's overall responsibilities.

[00:08:08] Speaker 03:
At the time of this trial, or at the time Mr. Lytle was, well, Mr. Reagan was... Oh, go ahead, Your Honor.

[00:08:22] Speaker 04:
I'm sorry, I'm getting a glass of water.

[00:08:24] Speaker 04:
I'm listening.

[00:08:25] Speaker 04:
I know you are.

[00:08:26] Speaker 04:
I'm hanging on every word.

[00:08:27] Speaker 03:
Was it very dry up there?

[00:08:29] Speaker 03:
Yeah.

[00:08:29] Speaker 03:
Was it very dry up in Denver?

[00:08:32] Speaker 03:
Do you feel like you've got some type of heat stroke coming on?

[00:08:37] Speaker 04:
Well, you've got a couple thousand feet on us, Your Honor, so it's even drier where you are.

[00:08:42] Speaker 04:
The heat's only going up if you're asking the questions.

[00:08:48] Speaker 03:
How sure does an individual have to be that a crime will be committed?

[00:08:57] Speaker 03:
Is a suspicion sufficient in your opinion?

[00:09:03] Speaker 04:
To be convicted, let me just clarify if I may, to be convicted of... Well, to be convicted as a co-conspirator.

[00:09:13] Speaker 03:
I mean, you've got a guy selling names and addresses, and he's going to get a salary, he's going to get a commission if he develops the business, which is risk takers, I think is what they called it.

[00:09:26] Speaker 03:
And if you have a suspicion, is that sufficient?

[00:09:33] Speaker 03:
In your opinion, you make you a co-conspirator.

[00:09:36] Speaker 04:
Unemphatically or emphatically, no, that is not sufficient.

[00:09:42] Speaker 04:
And while we're on the topic, I acknowledge.

[00:09:46] Speaker 03:
That seems to be a pretty important issue to me.

[00:09:48] Speaker 04:
Yeah, and I think I was overly respectful of the jury's findings on that, clearly, Judge Kelly.

[00:09:57] Speaker 04:
And we did not raise sufficiency.

[00:10:01] Speaker 04:
We did not challenge the existence

[00:10:03] Speaker 04:
of a conspiracy, but I think if this court decides there's insufficient evidence supporting the agreement required to sustain count one, you have the discretion to reach that, notwithstanding our failure to raise it.

[00:10:20] Speaker 04:
We also have a sentencing issue.

[00:10:22] Speaker 04:
Unless there are questions on aiding and abetting, this case also raises a sentencing question.

[00:10:32] Speaker 04:
was whether the district court misstated and misunderstood the legal standard controlling 2B1.1, leading it to assess losses over $10 million without ever determining whether Mr. Rieger's criminal conduct was the but-for cause of those losses.

[00:10:57] Speaker 00:
The first question I'm struggling with is to,

[00:11:00] Speaker 00:
is to better understand what the district court actually ruled.

[00:11:04] Speaker 00:
That goes both to assessing whether there's error, but also to the government's allegation that it wasn't preserved.

[00:11:11] Speaker 00:
And so really what I'm trying to understand is, it seems to me that the argument you made in the district court challenging loss had to do with it was not, you could not reasonably approximate actual loss in this case.

[00:11:23] Speaker 00:
The government chose not to pursue intended loss, and you couldn't reasonably approximate

[00:11:28] Speaker 00:
Actual loss and you offered gain as an alternative And I was trying to understand what really your challenge was because it seems like the challenge you're making now to Policing the but for causation requirement that inheres and to be 1.1 is slightly different than the more Factual challenge you made in the district court

[00:11:52] Speaker 04:
I agree with virtually everything you said, Judge Rosman.

[00:11:55] Speaker 04:
Certainly the conclusion we drew was gain is the appropriate.

[00:11:59] Speaker 04:
But in the middle, we raised a factual challenge to the calculation of losses based on the merge purge process.

[00:12:09] Speaker 04:
We said that is an intervening event, and I'm quoting from one of our sentencing pleadings, that breaks the causal chain.

[00:12:18] Speaker 04:
between the asserted loss in the PSR and Mr. Rieger's criminal conduct.

[00:12:24] Speaker 04:
That's volume 6, page 9.

[00:12:27] Speaker 04:
You will see those words.

[00:12:29] Speaker 04:
Volume 2, page 994, you will see us say to the government, you can't show that the names of these victims originated with epsilon.

[00:12:43] Speaker 04:
Therefore, you can't sustain the loss calculation.

[00:12:46] Speaker 04:
And I realize we have a sort of Evans reunion here with a lawyer and the authoring judge.

[00:12:53] Speaker 04:
Merge purge is, to this case, what the receiver's conduct and the deteriorating market conditions were in Evans.

[00:13:01] Speaker 04:
They're intervening events that break the causal chain.

[00:13:05] Speaker 04:
Because what happened, as you know, the mailer collects 2 to 50 lists and merges them into one enormous list.

[00:13:18] Speaker 04:
Epsilon, the government could never show that epsilon provided uniquely a name, which is to say the government could not show that but for Mr. Rieger's sale of the list, victim X would have been unvictimized.

[00:13:39] Speaker 04:
That's the causal chain that breaks because of merge perch.

[00:13:47] Speaker 00:
So how should we be thinking about 1B1.3?

[00:13:50] Speaker 00:
I guess my question is, how should we be thinking about 1B1.3 in relation to finding loss under 2B1.1?

[00:14:00] Speaker 04:
We begin by crediting the government for correctly defining the scope

[00:14:08] Speaker 04:
of Mr. Rieger's jointly undertaking criminal activity, because the government's loss figure premised on the exclusion of all names sold in the larger conspiracy, save the 26 million names Epsilon sold.

[00:14:27] Speaker 04:
We agree with that, the definition of relevant conduct.

[00:14:31] Speaker 04:
1B1.3 captures Mr. Rieger's sales.

[00:14:37] Speaker 04:
Those 26 million names.

[00:14:39] Speaker 04:
Now we say, how many of those names can you show, Mr. Government, are the but four cause of a victim's loss?

[00:14:48] Speaker 04:
The answer we said is none.

[00:14:50] Speaker 04:
You can't make that showing.

[00:14:53] Speaker 04:
We suggest that then as an alternative, gain.

[00:14:58] Speaker 04:
If there's no questions, I'll save my time for a rebuttal when there is none.

[00:15:02] Speaker 04:
Thank you, counsel.

[00:15:12] Speaker 00:
Do we need to revisit our aiding and abetting instruction to make sure it's in comports with Rosemond?

[00:15:18] Speaker 01:
I don't think that's necessary, Your Honor.

[00:15:23] Speaker 01:
And I think my response to that would be that we have to look at what the holding of Rosemond was, which was ultimately not about the degree of assistance that has to be provided for aiding and abetting.

[00:15:36] Speaker 01:
It was about where that mens rea has

[00:15:40] Speaker 01:
coincide with the actus reus.

[00:15:41] Speaker 01:
And so I don't think that Rosemont really altered the law in any way that alters the validity of our jury instruction.

[00:15:53] Speaker 01:
You know, it's possible that that dicta from Rosemont five years from now might appear in a Supreme Court opinion, laying something, laying out a new rule of law, but we don't anticipate what the Supreme Court does.

[00:16:06] Speaker 01:
I do think it's very careful to keep

[00:16:09] Speaker 01:
We need to be careful to keep Rosemont in perspective because it is fundamentally a decision about mental state.

[00:16:18] Speaker 01:
I also want to talk about the sort of hypotheticals again and the concern that someone who might know they're selling this compound to people dealing meth but not care would end up being prosecuted.

[00:16:35] Speaker 01:
And I think regardless of what the correct answer to that question

[00:16:38] Speaker 01:
legally is, that's not anything that was at risk here when you look at the jury instructions because the level of intent wasn't just knowingly, it was the specific intent to deceive people.

[00:16:49] Speaker 01:
And so the jury could not have convicted Mr. Rieger on the basis that he knew there was a crime going on and didn't care.

[00:16:57] Speaker 01:
The jury had to find and did find that Mr. Rieger intentionally participated and that he intended ultimately the results that occurred here.

[00:17:12] Speaker 02:
Um, um, so I guess, I mean, if we were talking about the last case, that might be more important, right?

[00:17:23] Speaker 02:
The factual, the, because my next question was going to be, you know, like, what was the, you know, what was the evidence of his actual intent?

[00:17:34] Speaker 02:
But it's a legal challenge here, right?

[00:17:38] Speaker 02:
Um, yes, your honor.

[00:17:39] Speaker 02:
So we could hypothesize about it, but it

[00:17:42] Speaker 02:
would go nowhere.

[00:17:44] Speaker 01:
Ultimately, since I think that wasn't the question presented to the court, I mean, I'm happy to talk about that evidence, but I do think that that is kind of besides the point at this stage.

[00:17:57] Speaker 01:
If there are no further questions on the aiding and abetting instruction, I did want to touch on the sentencing issue.

[00:18:02] Speaker 01:
Our position is that this has been pretty clearly waived

[00:18:07] Speaker 01:
It was not brought up below.

[00:18:09] Speaker 00:
Well, let's assume it's not waived.

[00:18:10] Speaker 00:
Let's just get to the heart of the allegation of error.

[00:18:14] Speaker 00:
So I'm trying to understand.

[00:18:20] Speaker 00:
So take the following assumptions.

[00:18:21] Speaker 00:
It's preserved.

[00:18:23] Speaker 00:
The district court understood that but for causation is part of 2B1.1.

[00:18:31] Speaker 00:
And what I'd like for you to address is how does the evidence here satisfy

[00:18:37] Speaker 00:
the standard under the guideline.

[00:18:40] Speaker 01:
So I think it satisfies the standard under the guideline in two ways.

[00:18:45] Speaker 01:
One is that we're not talking about the losses that Mr. Reeder was the but for cause of, but the losses that really can be attributed to Epsilon because he was charged and convicted on this conspiracy.

[00:18:58] Speaker 00:
Well, it has to be the losses that are attributable to the offense, right?

[00:19:02] Speaker 00:
Yes.

[00:19:03] Speaker 00:
And what is the offense?

[00:19:04] Speaker 01:
conspiring to commit mail fraud and wire fraud here or conspiring to commit a scheme to defraud.

[00:19:12] Speaker 01:
So that's an unhelpful answer.

[00:19:15] Speaker 01:
The scheme here is basically using Epsilon's tailored consumer data and combining that with these direct mailers to target people who are going to be especially vulnerable to them.

[00:19:27] Speaker 01:
And so the conduct that we're looking at is this partnership between Epsilon and the direct mailers

[00:19:33] Speaker 01:
and the people that receive those direct mailers as a result either of Epsilon's contribution of names or, you know, it's ultimately, we know that the names either came from Epsilon or the direct mailers.

[00:19:47] Speaker 01:
That's how we sort of limited the calculations here.

[00:19:51] Speaker 01:
And so we don't have to know for certain which names were unique.

[00:19:56] Speaker 00:
And so is that, so explain why you think

[00:20:00] Speaker 00:
You know, the appellant makes the argument that the merge purge process is what broke the causal chain here, akin to how the receiver broke the causal chain in Evans.

[00:20:12] Speaker 00:
Why shouldn't we be looking at it the same way as the appellant is suggesting we should?

[00:20:19] Speaker 01:
I mean, I think that that, I guess, goes to the other point here, which is that, you know, in the strictest sense of the term, there's both for causation and there's factual causation.

[00:20:31] Speaker 01:
when you're looking at multiple sufficient sources, it is possible to have factual causation like we have here, but not but for causation.

[00:20:39] Speaker 01:
I don't think that evidence... I'm sorry.

[00:20:43] Speaker 00:
You're saying that there is not but for causation here?

[00:20:45] Speaker 01:
I am saying that the literal definition of but for, we don't have an answer to that.

[00:20:53] Speaker 01:
I'm not saying there wasn't but for causation, but we... I would think that that would not be a good position for you to take.

[00:20:59] Speaker 01:
I mean, A, there's but for causation when we're looking at it from the perspective of the conspiracy.

[00:21:03] Speaker 01:
That I'm not conceding.

[00:21:06] Speaker 01:
If somehow the conspiracy goes away, then I would argue that, I mean, Evans talks about but for causation or factual causation, right?

[00:21:14] Speaker 01:
2B1 is obviously incorporating these traditional tort principles.

[00:21:18] Speaker 01:
And so the idea that just because we said in Evans that something has to be a but for or factual cause of the loss,

[00:21:28] Speaker 01:
doesn't mean that this multiple sufficient sources rule probably isn't what that guideline was designed to incorporate.

[00:21:37] Speaker 00:
OK.

[00:21:38] Speaker 00:
Help me write the opinion in your favor for a minute here.

[00:21:40] Speaker 00:
So assuming preservation.

[00:21:43] Speaker 00:
So if the issue is preserved, why did the district court here not reversibly err in failing to account for

[00:21:55] Speaker 00:
but for causation in 2B1.1?

[00:21:58] Speaker 01:
Because the conspiracy as a whole, all of those losses, all of those are still but for, the conspiracy is the but for cause of those losses.

[00:22:10] Speaker 01:
Because we don't have to separate out what Epsilon contributed versus what the direct mailers contributed.

[00:22:15] Speaker 01:
They're all in this together.

[00:22:17] Speaker 01:
So Mr. Rieger can be held liable for losses caused by names that the direct mailers might have already had.

[00:22:25] Speaker 00:
So that seems to me to implicate 1B1.3, doesn't it?

[00:22:29] Speaker 00:
We know that the offense of conspiracy is not going to be coextensive every time with the loss attributable for that offense, right?

[00:22:43] Speaker 00:
So we already go in knowing that it can't be one and the same.

[00:22:47] Speaker 00:
And 1B1.3 should help us discern the losses that are

[00:22:54] Speaker 00:
or the law says four jointly undertaken activity that's reasonably foreseeable.

[00:23:01] Speaker 00:
And my concern here is that the district court didn't engage in any of that analysis.

[00:23:06] Speaker 00:
And I'm trying to understand who's to blame, right?

[00:23:10] Speaker 00:
So if the appellant is not to blame, we don't have a record here to make what I think is a record-based conclusion

[00:23:23] Speaker 00:
that loss has been proven up in the way we would normally expect to see it.

[00:23:28] Speaker 01:
I mean, I think you've anticipated my answer here, which you're not going to like, but this goes to preservation, right?

[00:23:33] Speaker 01:
The reason we don't have that record is because this issue wasn't raised below.

[00:23:37] Speaker 01:
And the reason we don't have that record, even from the district court, the district court makes one off the cuff comment.

[00:23:45] Speaker 01:
And counsel immediately says, that's not the argument we're making.

[00:23:48] Speaker 00:
I know, but I'm not persuaded by that theory of forfeiture waiver.

[00:23:54] Speaker 00:
And so I think what I am interested in and would like to get your response to is, it does not seem to me that the district court engaged in the type of analysis we typically see under 2B1.1, which may require disaggregating some non-fraud caused losses.

[00:24:15] Speaker 00:
And is the reason for that in the government's position because the defendant did not ask the court to do that?

[00:24:22] Speaker 00:
Is that your position?

[00:24:23] Speaker 00:
That is our position, yes.

[00:24:31] Speaker 01:
I'm happy to answer any additional questions.

[00:24:33] Speaker 02:
You want to talk about good faith?

[00:24:35] Speaker 02:
Nobody said anything about good faith.

[00:24:38] Speaker 01:
Certainly.

[00:24:39] Speaker 02:
You have five minutes.

[00:24:42] Speaker 01:
So I don't think the good faith instruction was necessary.

[00:24:45] Speaker 01:
I think that this court has been pretty clear that when the jury is instructed on intent properly, that good faith is not necessary.

[00:24:54] Speaker 01:
I also do think it's very problematic here that counsel wanted to argue that what he was doing wasn't against the law because he didn't know it was against the law.

[00:25:07] Speaker 01:
I think that was very much the theme of the argument throughout.

[00:25:11] Speaker 01:
Regardless of how we might feel about that, the law is clear that that's not the level of intent that's required.

[00:25:17] Speaker 01:
It was simply the intent to defraud, and that is compatible with the idea that you still think that your own conduct is within the bounds of the law.

[00:25:29] Speaker 02:
Okay.

[00:25:30] Speaker 02:
Judge Kelly, you have anything?

[00:25:32] Speaker 02:
No, thank you.

[00:25:34] Speaker 00:
I just wanted to go back to the loss enhancement for a minute.

[00:25:41] Speaker 00:
Let's assume that we think that 2B1.1 requires but for causation, Evans recognized that in its holding, and that the district court's ruling can be better read in the way the appellant does for sake of argument, that the appellant says district court flat out rejected but for causation is the legal standard.

[00:26:09] Speaker 00:
If that's how we read things in this case, do you agree that we would need to remand?

[00:26:16] Speaker 01:
At the podium, I can't see a way out of that.

[00:26:18] Speaker 01:
So yes, Your Honor.

[00:26:22] Speaker 01:
Thank you.

[00:26:27] Speaker 04:
So let's get to causation.

[00:26:29] Speaker 04:
There's only one kind of factual causation.

[00:26:31] Speaker 04:
It's but four.

[00:26:32] Speaker 04:
Two, our argument below leading up to the sentencing hearing was nothing but

[00:26:38] Speaker 04:
Lack of factual causation.

[00:26:40] Speaker 04:
The district court kicked off the 2b1 discussion by rejecting, flat out rejecting the butt force scheme.

[00:26:47] Speaker 02:
So are you saying that in this context, you can't really distinguish between the legal standard, a challenge to the legal standard and a challenge to whether the, and the question of whether your challenge was primarily factual.

[00:27:06] Speaker 04:
May I answer?

[00:27:07] Speaker 04:
Yeah.

[00:27:08] Speaker 04:
Our challenge was not primarily factual.

[00:27:11] Speaker 04:
It was entirely factual, prompting the district court to make a legal conclusion, which it erred.

[00:27:18] Speaker 04:
It rejected the but-for standard that should have governed, analyzed, tested our factual argument.

[00:27:26] Speaker 00:
So what would happen if you prevail solely because the district court misunderstood the legal standard?

[00:27:37] Speaker 00:
And that's all we say.

[00:27:38] Speaker 00:
and it goes back, what happens?

[00:27:40] Speaker 00:
What does the correct analysis look like?

[00:27:45] Speaker 04:
I believe we'll eventually get to gain as an alternative because... No, no, no.

[00:27:49] Speaker 00:
What does the correct analysis look like in fleshing?

[00:27:53] Speaker 00:
I'm receiving what you're saying as, look, the district court just out of the gate rejected, but for causation, we didn't have an opportunity to develop further arguments on that front.

[00:28:05] Speaker 00:
So if you did, what would it look like?

[00:28:09] Speaker 04:
We begin with, as I said, crediting the government's reduction of the 1B1-3 conduct to something less than the integrated conspiracy.

[00:28:19] Speaker 04:
We shrink it down to the 26 million names that Epsilon sold.

[00:28:23] Speaker 04:
And then, probably at an evidentiary hearing, the government will have the burden to show that Mr. Rieger's conduct was the but-for cause

[00:28:35] Speaker 04:
of the victim's losses, which is to say the government will have to show that Mr. Rieger, the absence of Mr. Rieger's presence, victims would still have been victimized.

[00:28:53] Speaker 04:
That's a hard question, a hard way to say it.

[00:28:55] Speaker 04:
What I'm saying is that the government will have to show that Mr. Rieger's caused the losses suffered by the victims.

[00:29:03] Speaker 04:
In the absence of that, they cannot

[00:29:05] Speaker 04:
used to be 1.1 loss table.

[00:29:09] Speaker 02:
Did defense counsel below, I presume you weren't defense counsel?

[00:29:12] Speaker 02:
Correct.

[00:29:13] Speaker 02:
Okay.

[00:29:13] Speaker 02:
Did defense counsel below recognize that the government was, I mean that the, that the judge was rejecting the but for cause test?

[00:29:24] Speaker 02:
Yes.

[00:29:25] Speaker 04:
Which is why 20 pages later in the transcript, defense counsel responds to Judge Moore's

[00:29:35] Speaker 04:
accusation that he's reprising the butt-forced argument that Judge Moore rejected 20 minutes earlier or 15 minutes earlier.

[00:29:44] Speaker 04:
And Mr. Leedy, defense counsel, pivots to assure the judge, no, I'm not challenging that.

[00:29:50] Speaker 04:
I have a different argument.

[00:29:53] Speaker 02:
OK.

[00:29:53] Speaker 02:
I guess why I'm asking that is that, I mean, generally, we would require you to, your client, I mean, if they thought the court was applying the wrong standard,

[00:30:04] Speaker 02:
to say, wait a minute, Judge, I think you're applying the wrong standard here.

[00:30:08] Speaker 02:
And that's not at least readily apparent.

[00:30:13] Speaker 02:
Maybe Judge Rossman's seen something in here that I didn't see.

[00:30:17] Speaker 02:
But I don't want to belabor the point.

[00:30:19] Speaker 02:
You're over your time.

[00:30:20] Speaker 02:
I appreciate it.

[00:30:23] Speaker 02:
The case will be submitted and counsel are excused.