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Case 22-1426, Document oO N-300 | 3536039, Page136 of 217 21 M6SOmaxl 1 persuasive -—- along with the other sources and opinions we've 2 cited, it's persuasive authority for the fact this is a jury 3 decision, not a Court determination. 4 THE COURT: Are you leaving that argument? 5 MR. EVERDELL: Yes, your Honor. 6 THE COURT: We'll do a little back-and-forth so I have 7 everybody's arguments in mind. Thank you. 8 Go ahead, Ms. Moe. g MS. MOE: Thank you, your Honor. 10 The government is confident the 2004 Manual applies in 11 this case. I believe we did engage with the ex post facto 12 issue thoroughly in our brief. The question is whether the 13 factual record at trial establishes that the offense continued 14 throughout the duration of 2004, which it emphatically did. 15 The testimony of a crime victim who testified at this trial 16 establishes that the offense conduct went past November 1, 17 2004. 18 THE COURT: So I think the framing of the question 19 here is very important and its technical -—- this whole 20 discussion is very technical. It seems to me the question is 21 can the government point to a preponderance of the evidence 22 that conspiratorial conduct took place in this very small time 23 window, basically November and December 2004. That is what's 24 in issue, and the question is what the trial record establishes 25 with respect to that two-month window. SOUTHERN DISTRICT REPORTERS, P.C.*ee (212) 805-0300 DOJ-OGR-00021566