let's give everybody a chance to clear the court room conspiracy to commit health care fraud and raises two or three issues first he challenges one of his convictions based on multiplicity and double jeopardy and second he challenges the amount of loss that was calculated in both setting his offense level under the guidelines and for his restitution and i'm going to take each of these issues in the order that they were briefed  in double jeopardy the only real issue for the court today is whether the sunoco totality of circumstances test applies here government makes no real argument that if sunoco applies these two conspiracy charges aren't assessing multiplicity with respect to different conspiracy charges so why would an apply in this case the government says that because there was just one indictment here rather than two succeeding indictments that that's the distinction but they cite nothing other than a single word in so nido which they had tallis eyes to create this rule and in fact multiple cases in the circuit have used the sunoco to tell t of circumstances case  multiplicity this in maxwell v united states the united states itself through the u s attorney's office for the eastern district of kentucky consider that to conspiracy charges in a single indictment or multipl under the snow test in the course of ineffective assistance of counsel case multiple cases out of circuit have similarly found united states powell in the seventh circuit united states v peacock in the there are cases in this circuit united states v benton cited in the opposition that discusses both sunni and albert now and inciting sinitta oh it's discussing the factual circumstances case to dismiss that one of the chargers exactly and re sentence defendant will like much difference in this or it won't make much difference if the calculation of loss remains the same sentencing is appropriate under the question of whether the two sentences given were interrelated and looking at the maxwell case in that case in assessing whether the sentences were in a related the court look to whether for instance the judge had given an articulated separate sentences or instead made a statement that of the total amount and then only in the judgment went through an assigned separate  amounts and so here i think that the recent thing is appropriate under the standard announced in maxwell i think the real relief that defendant would receive upon remount is that first of course he would have only one conviction on his record which can have collateral consequences too he would not be subject to a second conviction fine which although somewhat small in the grand scheme of things is still an injury doesn't amount to much but it is be reopened as well and that he might possibly get a lower guidelines range on the sentences as a result  the strongest argument here is that simply wasn't compliance with rule thirty two appellants trial counsel did not do the best job highlighting the significant evidence in the record from which it was clear that some portion of these billings were for medically necessary services and thus not computer as loss but counsel quite clearly made an objection to the amount of loss and specifically to the proof that those billings were fraudulent given that objection and that there is some evidence in the record from which one can conclude that from which a reasonable court could conclude that the amount of loss was not what the p s r had set it at and what the government had said it at the district courts obligation to make some factual finding under rule thirty two was triggered which would it didn't fulfill simply it up to the underlying you know doesn't the defendant have to do more than that just say well there is evidence in the record that would show that the law says not what the p s r says it  is and that's it i mean there is nothing above and beyond that that offer really put the matter issue in any sort of evidence re way again it's difficult i'm not here making an ineffective assistance of trial counsel claim but i think that the question here is once you have that denial then the question is is there evidence in the record that would trigger some kind of obligation for a fact finding and if the district court had simply said you say that these buildings aren't fraudulent but you've pointed to no evidence and i conclude that the government's argument is valid and therefore i find that the p s r got it right i don't think i would have an argument but that's not what happened here and the government below was quite clearly relying on argument that all of the billings were fraudulent because of the kickbacks actions of the restitution argument where as i understood the court did say well you've got one guy over here and you've got somebody over here with seven percent of that person and that sentencing issue is that we believe that we believe based on my client client's interests that the government has a greater burden of proof here because of the textual dedication in  briefs make explicit that in a medicare medicaid case that the government bears the burden with respect to restitution in that respect doesn't it also have a cure you would be the government bears the burden under rule thirty two at least once it's put  play i think that there that there is that one could make that argument i think the argument is stronger with respect to restitution based on the case law with respect to rule thirty  two i think there is you know the there's a many cases that talk about well the government is the ultimate burden of persuasion defendant has burden of production in this case it's sort of almost irrelevant in that all of the evidence  me the answer is because they're different statutes and that is why the you know case is not in conflict with us every time this court has applied some you know it's been an instance in which involve the same statutory offen so it is counsel is quite right it's not simply a successive conspiracy issue although that's when it's often applied situation some ito and cases like that from other circuits are designed to prevent either a mischievous or a  confused prosecutor let's say from charging someone with the same conspiracy either in the same district or perhaps different districts that's what that totality of circumstances test is designed to avoid it's not designed  and it does not apply in a situation where we have congressional intent to make two different agreements two different conspiracies illegal and this court as i said in fall or applied whopper and found that health care fraud conspiracy under thirteen forty nine and the conspiracy to pay or receive kickbacks under three seventy one are not multiplicity us that's the same that the eleventh circuit found and the fifth circuit found all sided and i'm very sorry that you i'm sorry  that you so you know had rico conspiracy under nine hundred sixty two c n d and so there it was one of the factors under the c e o test is the statute that is charged that's more looking at the overt acts that are listed  in a situation in which different statutes are applied classic example would be for example conspiracy distribute narcotics under eight forty six and then perhaps a money laundering conspiracy under one nine hundred fifty six this court and every of the court applies to block protest that simply because congressional intent makes clear these are two different harms these are two different remits and while one agreement may further the other as long as there is a different element there has to be proof of something that the other does not require and that's the end of the analysis and as this court already found in fall or in a published decision that's what that we have here thirteen forty nine that's healthcare fraud conspiracy requires an intent to defraud medicare the kickback conspiracy does not require that it could be for medically necessary services if i were to bribe a doctor that would violate that even though i might need that service so i would not necessarily have committed the health care fraud conspiracy and does it further that perhaps but that's why every court that's address this including this court has already ruled on the issue and applied bought blocker i polish us for not making that more clear that's that's why i should write a brief during the middle of trial turning to the other issue and that would be a loss amount this was a denial and this court has applied that standard over and over again all that mr patel did was say the government has not proven that any particular bill was fraudulent well that's not enough to trigger what would be let's be honest a very complicated sentencing issue if we were to have to parse through the thousands of medical bills because recall that each home health care patient was being billed between four thousand and four thousand five hundred dollars so we're talking a thousand and fifteen hundred or more so to parse through those one by one to determine which ones were for medically necessary services and which ones are not you can't simply say no i object i disagree the government the evidence at trial was very clear that this organization was corrupt to the core that everything was the product of fraud and yes mr o'toole patel did say that in his years trolling the residents of flint to try to find someone that had a medicare card who would be willing to see a doctor a doctor in someone's home mind you for services he could recall only one so at best we're talking about four thousand five hundred dollars out of seven point two million my math may not be right but i believe that's point zero five percent of the total loss amount certainly a little the cut point i mean it is seven million so isn't the you might say the amount the at least the first amount that's in play is only about eight hundred threshold and here we were a million dollars over the threshold eight million dollars or seven because the home health care resulted in seven point two million dollars in loss and there was an additional eight hundred thousand that came from the pharmaceutical companies with which the new to the judge affirmative and that eight hundred thousand because the restitution amount it doesn't doesn't include all of them are right actually what happened was the government objected to the p s or and said that the pharmaceutical amount should be included the p s r was amended so the p s r at least as i have it in the record reflected an or thousand dollar loss or i mean a sorry eight million dollars loss and so the judge did not have to address that issue because it or even address below because then cases now recall that this is a post two thousand and eleven case and so the guidelines themselves say in a medicare fraud case you start with the aggregate amount of billing i mean that's what the guidelines require and it requires it puts that duty on the defendant to r that duty doesn't say we're but by denying that ever happened it says come in and show us what was what was legitimate mr patel did not do that he did not make any attempt to do that and to expect a district judge to recall what happened in a trial nine months earlier and this was a believe a seven day trial to recall that there was one incident out of over one thousand is that's not the burden i mean that's not the standard the standard is you come in and present some evidence to then put the judge on notice that we need to have a contest at sentencing in hearing mr patel did not do that and that's frankly the end of the analysis and this court has has applied that numerous times i would think that my best case is perhaps the main in case this is in my brief it five by adopting the same amount from the loss when mr patel did nothing to put him on notice that there would have to be some amount that would be offset that is his burden mr patel did not do that was there some particular reason that the judge  again correct me if i missed stating the record the judge did talk about the the one that was legitimate of the seven percent legitimate talked about that in connection with restitution but didn't can talk about it in connection with the laws you're actually was trying to find that when she mentioned that the those accounts i couldn't find them in the record i will admit that this was not the the most thorough or adequate sentencing and if we were talking about procedural issues here we might have a different conversation  there there is evidence in the record i believe that this was certainly mr purcell's brief perhaps the reply brief that seven percent of one of the individuals i believe this was jeffrey wade jeffrey wade was a gardener who  was a purported home health care patient although he came to trial and said i never had home health care services and he also did receive prescription pills prescriptions from the patella pharmacies i believe the evidence was that perhaps seven percent of those were legitimate and that is where mr patel is now trying to say will based on that we know there were some legitimate things offered recall that most of that a fair number of the perceptions that were filled by the patel pharmacies were narcotics these were used for a number of reasons including to pay off the people that they were bribing to see the doctors in the earth the in the first place and to the extent that they were legitimate and i believe this the reference to mr wade was with respect to thyroid medication  the patel pharmacies were not even filling this with the generics they wanted the high dollar amount they would avoid the generics on purpose in order to jack up the amount they were going to turn around and bill to medicare many of these prescriptions were not even dispensed they often were kept back and either return later on to the pharmaceutical companies or as you may recall the trucks some of them across the country to new jersey to sort of black market distribute so again this evidence was not before this information was not placed before judge tarnow and without that i don't think there's any duty for him to offset the burden was solely on mr patel at the point when the amount was introduced to raise the issue to raise the issue to the district judge that there needs to be more of a hearing mr patel did not and frankly that's the end of the analysis that's what this court has held time and time again again this was a complicated fraud scheme this was a seven day trial we're talking about a fraud scheme that pass that was over years and if we were just to imagine what sort of sentencing hearing we would have to have every time simply a defendant raises hand and say well that's not right we're going to a battle of the experts doctors here and perhaps a judge is equipped to do that but that's not easy and that's why in many of the cases in many of the cases that the defendant relies on we're saying that these things have been that these amounts have been also that's where this court is reviewing the methodology which is a very different standard she  desh a case of the third circuit those cases did not involve a work did not hold that the court must offset either in the last state context or in the restitution context what those cases did where they were reviewing where the parties had come in and had a methodology because frankly in a situation like this what the government's going to do rather than bring in a doctor and a multiple boxes full of medical bills to try to explain why some were fraudulent some weren't that's  g as a state at the outset that we would have those those bills but and all those underlying records to be able to make that showing rather than do that what often happens is the parties come up with some sort of methodology on how they're going to back out some of those that did not happen here mr patel didn't come forward didn't have that conversation which frankly in the fall or case that was a codefendant that's what the court was reviewing was a pre determined methodology there were issues there of course but that's what they were reviewing none of that happened and without that last for that you know you know had he there would've been a very different sort of sentencing hearing he simply said the government never showed that any of the bills were fraudulent and your honor that wasn't required that was so i as and again i think here understanding albert as being about statutory challenge is under blocker to the idea of punishing the same type of conspiracy with multiple conspiracy whether or not the two conspiracy statutes are multiplicities under under bloch berger united states v once again uses needed to consider whether a subsequent conspiracy that included an allegation for money laundering was the same as a prior conspiracy to distribute drugs finds there are separate conspiracies and again that subsequent albert as a similar effect applying fact specific analysis with respect to the amount of loss as the government themselves said this is not a thorough and adequate sentencing the government submitted one hundred seventy two pages of trial evidence with their sentencing memo you know the sentencing memo this was a case where the court had overseen i think three separate trials you know it was an long huge ongoing investigation where the court was was on notice of the sorry excuse me the the nature of the conspiracy i just remember with respect to fo these are summarized in the opening brief but just to briefly go through them in addition to the testimony of jeffrey wade that he suffered from sarcoidosis arthritis chronic pain and insomnia and that many of the drugs he received were for those conditions and although he testified only to a handful of drugs that represented seven percent there are other drugs in his schedule that you know go beyond that they might go beyond that that are treated treat conditions that he has to tell testified that only through kickbacks could a profit be made in home health care and he testified that a profit was only begun in two thousand  at first michigan i first michigan profits doubled that year if you look at the government's own exhibits about profits there and so i think that it's mischaracterizing how little evidence