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be NO Ww ws Oo OY ~] oO Ke) a oO he be No (ee) = Hs Oo _ OY a ~] a oO a Ke} 20 21 22 23 24 25 Case 1:20-cr-00330-PAE Document 779 Filed 08/22/22 Page 21of101 21 M6SQmaxl persuasive -- along with the other sources and opinions we've cited, it's persuasive authority for the fact this is a jury decision, not a Court determination. THE COURT: Are you leaving that argument? MR. EVERDELL: Yes, your Honor. THE COURT: We'll do a little back-and-forth so I have everybody's arguments in mind. Thank you. Go ahead, Ms. Moe. MS. MOE: Thank you, your Honor. The government is confident the 2004 Manual applies in this case. I believe we did engage with the ex post facto issue thoroughly in our brief. The question is whether the factual record at trial establishes that the offense continued throughout the duration of 2004, which it emphatically did. The testimony of a crime victim who testified at this trial establishes that the offense conduct went past November 1, 2004. THE COURT: So I think the framing of the question here is very important and its technical -- this whole discussion is very technical. It seems to me the question is can the government point to a preponderance of the evidence that conspiratorial conduct took place in this very small time window, basically November and December 2004. That is what's in issue, and the question is what the trial record establishes with respect to that two-month window. SOUTHERN DISTRICT REPORTERS, P.C.» (212) 805-0300 DOJ-OGR-00014768