from the southern district of florida who's visiting with us for a few days and we're very appreciative of his willingness to come out and help us out thank you and it's always my pleasure ok so we'll begin let's see make i'm going to call the cases they appear on the calendar we have some that are submitted on the briefs and record the number the st case in the united states versus no p is submitted on the briefs and records at this time on the next case there are two federal sentencing law namely to what extent a defendant with a limited role is responsible for financial losses resulting from the march much larger fraud scheme under the relevant kind of provision of the sensing guidelines mr walters was convicted by a jury of four counts of mail fraud involving a grand total of three thousand one hundred and fifty five dollars at sentencing under the relevant conduct provision mr walters was held responsible for a loss in the amount of five million two hundred and sixty three thousand dollars ninety three cents five million two hundred and sixty three thousand dollars there's no dispute that mr walters was properly held responsible for more than three thousand one hundred dollars in losses that the attribut showed mr walters was limited and largely ineffectual participant in the scheme masterminded by tonya mitchell there is no evidence that mr walters assisted mitchell with the overall scheme mr would in the last amount range steel place your client within the guidelines range under which he was sentenced i don't see this primarily as a temporal problem i think that the problem but you could you answer that the result of his sentence we've got it under the guidelines right you know it would be fairly complicated calculation which i don't have an in front of me because you have to discern which claimants in the spreadsheet that has hundreds of claimants which claimants were began before he started in two thousand and nine but not only that but then some of them also continued you know so they start in two thousand and eight and continued in two thousand and nine so i don't think it would have a major impact but in terms of you know if you have to submit something you know i asked i thought the record reflected that there was roughly like a little over one hundred one thousand dollars that was attributable to the s that year of the companies with which your client was affiliated before he became part of the scheme and even if we took away that roughly a one hundred thousand dollars it would not change the last amount of the calculation of the gap plans range and i guess i'd have to double check that but i think that may be right i think most of the activity with regard to the companies that we're talking about here occurred at two thousand and nine and afterwards oh why would that be if if my recollection when that render any error harmless well because because i think it's again i don't think it is a temporal consideration i mean i think cutting it's the issue under lloyd and studly is you know whether the defendant planned or designed the scheme was offended coordinated with you know other managers in the scheme you know those are the kinds of things that you look at under lloyd and studly and i don't see that here on this record there's just no evidence of that kind of activity i mean he was responsible for the claimants about twenty five to thirty claimants or so it was the claimants that he was listed as you know the so called manager for but there's no evidence you know certainly no evidence presented at trial that showed that he had a broader involvement in the scheme that he designed the scheme that he was responsible for the overall scheme in some way do you recruit other recruiters it's he had two people come on that were brought on very few number of claimants i mean one of them what was his roommates and if you can figure out how much they brought in i mean we're talking you know maybe thirty thousand dollars maybe a little bit more than that it's not you know again it's nowhere near the five million two hundred thousand and he basically his roommate needs some help financially is like you can you help me out in this you know this is that kind of informal arrangement it wasn't you know he was out there recruiting recruiters  phone calls actually majority of those phone calls occurred during a two day period on a two day period so and they were basically call up hang up because the line is busy so it's compulsive calling and a two day period it's not two thousand one hundred phone call over a few years and so and if with regard to the other calls i think what's significant actually is that the government didn't introduce any evidence that he was calling other managers in the scheme again this goes to the coordination with the other managers  introduce any of that kind of evidence at all i mean so the fact that he was calling the claimants again which we're not arguing that he's responsible for his own claimants and that's where the calls were they were to the claimants they were to the e t d but they're not they're not with regard to the broader was before lloyd wright well i think again i think i think it's the same factors you look at the same kind of factors and use it to mean the cases are very clear about this and they go they run down the line you know they share in the profits of the overall scheme no he didn't share in the profits of the overall scheme he's got a bit of money from his own claim and from the claimants and i want to be quick to support what did the evidence show the trial to thought early two thousand and nine and to what extent do we consider or should the just district judge consider foreseeability whether it was foreseeable to these other characters would engage in this kind of activity well here and why should he be held responsible for that he's a joint participant in the scheme but if you look at the briefings that mr mitchell that the government itself introduced during the sentencing you know it shows that it wasn't at all foreseeable that mr mitchell  evidence into trial they could have called mr mitchell but there was no as far as i know there was no evidence at trial that mr walters worked with these spreadsheets so that's that's not evidence that the government introduced at trial or at sentencing  so i don't think that does go to the foreseeability analysis and you know if you look at these cases again they say and the guidelines themselves as well that mere knowledge is not enough you know that's not what it has to be jointly undertaken through criminal activity again with regard to his good morning and may please the court matthew elements for the united states i want to start with some of the questions about mr walters's involvement in terms of time that the court had in the opening argument there is in fact evidence in the record there was evidence produced th trial introduced at trial that there were stated wages for mr walters and for those he recruited throughout two thousand and eight with e t d for those fake companies so his involvement suddenly starting in january two thousand nine doesn't explain those records that were introduced at trial and they are not really disputed here on peel i would refer the court to excerpts of record page three hundred and forty three and supplemental excerpts of record this is it does that mean that it's your the government's position that he was involved from the get go it's not clear from the record as to exactly when mr mitchell started the fictitious businesses although mr mitchell's account is that he started those businesses with an eye toward some kind of legitimate use for them at the start at a minimum it's clear from the records and it is the government's position that this defendant was involved for the entirety of the false claims on that last spread she that was used at sentencing and to judge wrong since point even if what was the st entry the date of that st entry in their annual reports that are filed quarterly your honor and so mr walters had quarterly wages throughout two thousand and eight as did nehemiah mendoza another individual testified at trial as having been recruited by the defendant and so those records in addition to other people that mr walters recruited the stated wages for darnel that was the whole scheme and did not have a temporal beginning and the evidence at trial established the existence of the scheme and the defendants knowing participation in it the focus of the show the temporal aspect that became relevant at sentencing because they have fictitious wages reported for throughout the year two thousand and eight so let me ask you this still i'm guessing i'm a little bit confused so  scheme involved five fictitious businesses and over five hundred dollars let me know with regard to the two companies were involved with that were asking just those two companies you know within the financial builders just those two right if i should have been that i  that that is that the five million dollars that the five million two hundred thousand dollars on the spreadsheet was all losses from those two fictitious businesses that he had calculated from the end of two thousand and eight and through the end of two thousand and ten which was the time that this defendant was a participant in the scheme were then i don't know it seems to me that at sentencing there was some discussion that that mr walters was not involved for the st year what was what was that in reference to well that was in reference to the year two thousand and eight his attorney attempted to assert that he was not involved in two thousand and eight and that mr mitchell was going to come forward and either provide a letter or testify at sentencing as to mr walters becoming involved later in the  scheme i believe citing the fact that mr walters applied for unemployment benefits under his own name in january two thousand and nine but again the records are clear that the fictitious wages both for this defendant and for those he recruited were submitted throughout two thousand and eight so it's just not plausible that the defendant didn't become involved until two thousand and nine now i'm sorry him go i was going to ask you what your position was on my question regarding the amount then if we accepted the defendant version of events answer to when he was a participant what difference would that make in the last amount in the sentencing the government agrees with the harmless error analysis point which is that the government's estimate is even if you excluded all losses from that spread sheet for two thousand and eight the number would be roughly one hundred and twenty thousand dollars and that would not push the defendant below the next threshold in the to be one  table and so therefore would be harmless in terms of the guidelines range calculation however for the reasons that articulated it's quite fair for the sentencing court here to have held mr walters accountable for losses that occurred in two thousand and eight as well since fictitious wages were stated for him and those he recruited in two thousand and eight if there are not other questions on the last calculation i just briefly like to touch on the continuance issue this court analyzes itself the below guideline sentence was not substantively and reasonable because it resulted from a meaningful consideration of the section three thousand five hundred and fifty three a factors by the sentencing judge who was uniquely well positioned to determine what the defendant did the scope of his jointly undertaken criminal activity having sat through trial and since the other managers in the scheme were you trial counsel for this case i was did the pre sentence report make any attempt to define when walters was involved in the pre sentence report focused on when the fictitious business started i believe the answer your question is no your honor the person's report did delineate mr walters as involvement and described the people he recruited and the loss attributable to his time in the scheme but his recruits yes in this problem i'm a little confused about the two thousand and eight discussion because i look at the government spreadsheet and i don't see any claims any applications that began in two thousand and eight and so they're all twenty million ninety two thousand  ten so they should go as weighted and the issue goes away right i don't i personally don't understand it but you know and i don't think that there's anything in the record that shows that was it was involved in two thousand and eight but where there are lists there were some discussion of sensing there wasn't this really aren't made he's being held accountable for losses they were sustained before he joined in right but as far as i think i read the spreadsheet i didn't see any entries for claims that were filed in two thousand and eight maybe i'm mistaken but i don't see anything in the record about how you're there's ample evidence in the record to support this of course findings both the fed and describe themselves as founders of the investment companies both led conference calls with the company's nationwide sales force both travelled around the country selling their company's investment strategy both to misrepresented investment and they both profited from their mutual efforts so again i mean i think just like the other cases this just highlights what we don't have here you know we don't have a defendant who's profiting from the overall operation we don't have a defendant who's helping coordinate the overall operation who's planning who's designing it and so i think if the court in fact we have really the opposite we have we have a scheme that's out of control i mean nobody really knows who these some of these claimants are and he's being held responsible for all of them  there is a dispute about the amount of loss that should be attributed to you khan but i see that more as the legal significance of the facts in the record i don't see that as a dispute about the fact that the court had to come to a determination regarding the amount of loss to set the gatling wrong right but i think the court basically is misapplying the law i don't think that this is a case where the court i mean there was the ever about the recruitment parties the clear air about the recruitment parties but leaving that aside i think there's really generally no dispute i mean all the evidence i relied upon in my brief i mean it was it was all evidence that the government itself introduced at trial and at sentencing so i don't think that there's i think where there is no dispute i think it should be the court below the not cite lloyd and he did not cited cases but he did what he thought the law was in my recollection was pretty accurate with the law was in the standard he just came to a different conclusion with regard to the impact of things that he saw factors that can be considered but each case has brings some factors in this case i thought the judge did a pretty substantial case job of setting forth the race factor and why he felt that led to his determination of the loss