court we have raised a number of issues and some of them overlap with our co appellant my colleague mr mcwhorter and i have coordinated a bit to try and streamline our presentation so  not being unnecessarily duplicative each other of each other but with that in mind i'd like to start with the issue that i believe is the sort of proverbial ball game for both so sosa and  that is the issue of multiple conspiracies and to quote kodiak ghosts which i know the court is undoubtedly from the year with the indictment charged a single conspiracy only to prove showed more than one the instructions told the jury erroneous lee that on the evidence they could find if and guilty of a single confederation this was reversible error in kodiak us and so it is here we have multiple conspiracies one which involved soca sosa and the others to rip off insurance companies through two clinics called revive and renew and a second conspiracy which involved the others but not so good sosa and that was to rip off insurance companies through the use of a clinic called h and h the facts and the proofs in this case exclude the possibility that socan soso were involved in the in the conspiracy to defraud through agent age and not only is a record completely devoid of any evidence that socan soso were involved at age an age the one person who testified at trial who could have and was in a position to implicate him age said she had nothing to do with it herrera who testified at trial he said he was the owner of age and age he said it was his he opened it with help from his father so it was never in h and h socan never gave herrera any money for agent ange she had nothing to do with the operation of age and age and did not receive any profits there was not even any evidence in this considerable record that so good a new age and age was up and running much less that there was an agreement by her toward a common goal through the operation of that facility the government wants to dilute the longstanding requirement of knowledge and agreement to participate in a common goal by saying overlap and participants overlap in means that's enough to create one conspiracy but it's not overlapping participants similar schemes in similar goals are not the same as a common goal and we know that clearly from the court's authority in my eyes and when i look at the my eyes case and i look at this case i have a very hard time finding any differences in the two this is almost exactly like my eyes where there was essentially what i would call a spin off conspiracy which despite the overlap in partizan pens and methods there wasn't any evidence of a common goal or agreement involving soca in my view reading the minds case soca is bustle the my eyes conspiracy was inspired by the bustle conspiracy with overlap in almost every way except for basile and the same can be said for soca and while it may be true that what the others were doing at age an age overlapped with what was going on at reviving issue becomes what do we call it when there are multiple conspiracies is it a constructive amendment to the indictment or is it a prejudicial variance constructive amendments obviously are reversible per se the one thing about this case that is different from my eyes that i believe makes it us fall into the category of it being a constructive him and is that there was no jury in shock sion given to cure the problem on multiple multiple conspiracies in my eyes there was and my reading of my eyes is that that was what was dispositive for the cord and to not find a constructive amendment but to find a variance where they then had to go into the issue of prejudice here we don't have a multiple conspiracy instructed and shushing we asked for it it wasn't given we asked that some additional language be inserted into the standard instruction on conspiracy and the alternative just sort of focus in on the fact that the government had to prove the conspiracy charge in the indictment and none of that was given and because constructive amendments occur when the evidence and the jury instructions undermine the indictment i believe us what we have here and then it's reversible  on nick on count one the conspiracy and because of that and i believe that we we are asking for a new trial on the conspiracy and i submitted some additional authorities a court yesterday because i i think what we actually we'll need here is a new trial on all counts and the reason for that being that count one the conspiracy is made part of the rest of the substantive counts so we have counts two through thirteen which were the health care fraud counts and they read and i'm going to just read from the indictment here the united states incorporates by reference count one paragraphs one through twenty and overt acts one through fourteen above as if fully conspiracy so we are asking that the court reverse and remain for a new trial on all counts the other issue i wanted to take a moment to address is a two level guideline increase under to be one point one b fifteen for conscious or reckless risk of death or serious bodily injury that was applied in this case we believe erroneously what it would require is that the fraudulent kind of soca and sosa recklessly created a risk of serious bodily injury serious bodily injury is defined in the guidelines as extreme a physical pain a protracted impairment of a bodily member organ or mental faculty that is likely to be permanent this is a case where we don't have accidents at all we have contrived situations set up to look like car accidents the cases out of circuit where this enhancement has been applied to similar schemes to defraud based on fake car accidents involved actual accidents with unsuspecting motorists where people will get in the car and go around in this somebody that had no idea what was going on we don't have that in this case everybody knew what was characterization i the only case about are the only incident about wish there was evidence of two cars actually colliding the evidence was that the people in one car they drove to a location the people got out of the car somebody bumped into the back of that and then they got back into the car there i'm not recalling any evidence about a situation where there were motorists going through on  intersection and hitting each other i'm recalling bombs into guardrails bombs into tree as in one case one of the cars was hit the one you're hammering about i'm looking the government's brief refers to  to run into the back of a car driven by lester her media is that the one where you say they got out before the x i was sorry or i could be wrong about that but i believe south ok we cobb a stated we have kind of coordinated a little bit what arguments each of us to raise because of time limitations so i would like to get up to talk about what i consider to be the more important points for specifically mr  for being a leadership or organizer with respect to the obstruction of justice and handsome and i think it's very important for the court to consider the actual conduct involved in this and would review in the transcript no i did not try this case i like your honour's reviewed the transcript to determine what occurred in reviewing the transcript it became  s mr martinez lopez as wife after his bond had been revoked and there in that conversation they met on two separate occasions the first one mr so so it was not even present he wasn't in the house he was anywhere around the codefendant mrs soca had gone in spoken with her by herself now on the second time and this is the only other meeting when they were at mr sosa was present but he was not a participant of the conversation he was in fact outside of the building where the conversation occurred he was in the vehicle waiting apparently he had brought mrs saw the front end as to that meeting and he was waiting outside and i believe that the district court just inferred from his mere presence that he was part of what was going on that he considered to be obstruction of justice with all due respect i suggest to the court that the conduct as set forth in that sentencing transcript is not sufficient for to be obstruction of justice when your honor to review the cases that talk about obstruction of justice you're seeing it much more agree just activity one of the examples is that we're cited is a gentleman that while incarcerated called his wife and dictated an affidavit to her which she then took to a confidential informant who then signed it in front of a notary and then presented it and in that a had said that there had been no drug activity later on he recanted at trial but the egregious behavior there was that detailed affidavit in most of these cases where the obstruction plot i think that's the type of behavior you tend to see you tend to see a ane almost strong handed influence on how somebody is going to testify there's no it's not there's no question about that what's going on generally generally they're suggesting the language they use or say hey i need you to take this charge for me or hey you know tell them that i didn't do this that is not what happened here here during the conversation the only thing that could be construed as trying to influence the testimony is the offer of money and what occurred as mr sokol fernandez basically said i know your husband's body been revoked we can help financially if you need it now the government contends that was to influence the witness we suggest that there could be absolutely be an innocent motive there we think that there was an innocent motive there these people didn't know each other before this case they were trying to help one another but if you could look at it as innocent or not it's apparent to me that it is clear and i suggest that your honors and the reason why is just left with respect to mr sosa because i think part of what happened is throughout the entire case mr activities but people are still independent and all of the testimony with respect to mr sosa talks about the majority of it how it's kind of removed from the process for example they're talking about billing mississauga fernandez is actively doing the billing most of the witness testified that mr sosa may have been present but he was not involved in doing the building it's similar i mean it's the same type of situation here we're talking about the obstruction that mr sosa may have been present but he wasn't actively involved that he was very very far removed he wasn't present during the first conversation and then during the second when he was outside own with respect to the leader organizer and hands it's a similar type of situation it is a factual analysis again so we are looking at clear we would concede however that it might be more appropriate for the to be a two level enhanced mr the four level of cancer and the reason why it is some of the witness testimony does talk about mr sosa being present when one of these conspiracies was being set up he was present when they went spoke with a doctor that was given the prescriptions but he wasn't present throughout a lot of the other activity there's no allegation he was present with h and h political there are three separate clinics involved here there's no allegation that he was involved in the billing except for by one witness in any of the clinics everybody else talks about how it was either mr sokol fernandez or the other honour's with respect to the conscious or reckless risk of death enhanced by what we're dealing with here or stage accidents that by design nobody was supposed to be injured you know the testimony about one of the accidents is it did even a kirby took a hammer and broke out the front lights where there wasn't a collision with another car differently from the other cases is they seem to be carefully making sure there is no risk of injury to anybody else and that's what we suggested has been does not apply  please the court ron style on behalf of the united states i was also the lead trial counsel below i want to begin with the constructive amendment arguments your honor and i will approach the multiple conspiracies issue when i get to variances in just a moment if the court would indulge me the first thing that i think is absolutely clear from the record here is we do not under any circumstance have a cert constructive amendment and i understand why the opponents argue that it's automatic reversal i'd be arguing that too but there is not been a case where a constructive amendment has been found unless the evidence at trial broadened what was alleged in the indictment and i've cited the cases going back to the u s supreme court in  through my eyes in the circuit that clearly indicate that you have to broaden what was alleged nothing in this case brought in what was alleged in the indictment the indictment always alleged that these defendants carried out a staged automobile accident fraud scheme at three different clinics and with individuals who carried it out all three clinics revive renew in each an age that's all we have or alleged and that's all that we and that's exactly what we proved a trial now one fundamental disagreement with the position of appellants is that they want this court to believe that there is not one conspiracy if they did not invest in profit from or set foot in each in each rehab and that simply is not the law that the law is that which i will discuss in a moment with variances want to get into multiple conspiracies is that members in a conspiracy can change they can evolve over time and not all of them need to be involved at all at all moments in time what the law also says your honour's is that if the government proves a narrower conspiracy at trial than alleged in the indictment then there is no constructive amendment that's the miller case in the weinstock case and so even under the best set of circumstances for the opponents that they weren't involved in a conspiracy with h and h which again they were we still proved a conspiracy with revive and renew which they have not challenge to sufficiency of the evidence for and we proved a narrower scheme now turning to probably the more important issue which is the variance of variance exists what first of all there be two things they'd have to prove material variance and then secondly that it affected their substantial rights so let's turn to whether they can even show material variance what they must prove now out of this court is that the only construction the only construction of the  is that there was one conspiracy or two conspiracies and i want to apologize and to answer that question this court has to look at the evidence in the light most favorable to the government and there's just simply no way on this record that the only construction that a jerk have given was that there were multiple conspiracies and not one this gets back now to what i said i would address which is why there are not multiple conspiracies the law in the circuit is that if they have the same goal you look at the goal you look at the scheme you look at the participants each member as i said doesn't have to participate in every facet or stage the membership can change what's important is that they all agreed upon a common adventure or a common goal what did this evidence show it showed an overarching scheme to defraud auto insurance carriers by staging accidents and sending in physical therapy forms for therapy that wasn't needed or wasn't provided it started with revive therapy clinic it went to renew therapy clinic and then it also went to h and h rehab they all overlap to various times as revive phased out renew took prominent c and while our new was operating age an age where you have was operating and most importantly the participants here were substantially overlapping all of those clinics the evidence a trial showed used the same recruiter ms rojas the same physician dr pereiro the same practice a pence some of the same participants pretending to be patients towards the end patients who had done fake accidents at renew and lansing michigan were becoming patients at age need to rehab but most importantly if you don't look at anything else i would encourage the court to look at the confidential informant of the government her name was miss sanchez she testified as ms  she was or confidential informant while all these clinics were operating a confidential informant of the government was taken by the recruiter ms rojas first to mr herrera who owned each and each rehab he looked at her paperwork he said it looks like you have an accident that'll work it looks like you have insurance that will work we're going to call you back what happened next she didn't go with mr herrera to see the doctor he didn't start billing fraudulently what he did is he directed her to mr akun mr akun own renew renew was directed by sos and soca they were all the testimony in the record as they set up that clinic they profited from that clinic they were directing the massage therapist there to create fraudulent forms now why does that confidential informant go to reach an age where you have the recruiter and then get sent to renew these opponents clinic because they're all in it together they coordinating at that point mr martinez who was working first for ms so can mr sosa revive and mr a coup know who's now managing renew therapy meet together and take this person to see dr berl the same doctor that all three clinics have used again why did that happen i think the answer is obvious she's then told we're gonna have another meeting she gets together in a parking lot who is there in mr martinez mr akun of the people working for soap and sosa they have her sign blank therapy forms they're not for h and h the last clinic therefore renew and renew bills till they can't get away with it any longer and then what happens is mr akun a tells that person to go back to mr herrera and mr herrera bills for her until the end of the scheme that evidence alone shows the commonality of the goal the same scheme the overlapping participants now i will acknowledge i did not approve the trial that sopa and sosa invested in h and h just as mr her said and they didn't profit from it but everything else in the record showed that it was a continuation of the scheme they agreed to start and put into place and they were aware of it what evidence shows that they used the same law firm to litigate their claims when they weren't paid misc cheryl kennedy a paralegal testified at trial and mr paul whiting an attorney out of self will michigan testified that they represented all three of these clinics they had to know that h and h was operating was doing the same thing all the same people they affiliated with for their clinics were doing the same thing as agent h and again the confidential informant touched all three while they were operating so again i just impress on the court that at this point they have to show the only construction is that there were more than one and that no reasonable juror could find that there was only one and i simply don't think that is what the record shows beyond that they have to show prejudice we have to then look to if this is a material bit variance how are they prejudiced and that goes to could they defend themselves or trial was the trial fair and then this idea of spill over did so much come in conspiracy they weren't part of that they got convicted for that conspiracy and it couldn't be any of those circumstances couldn't be any more absent they knew all along that each and each was in this case it was in the indictment they moved to dismiss the indictment prior to trial arguing that there was multiple conspiracies they knew well and good when they walked into that trial the government was going to say nature was part of this in terms of guilt transference  we had twenty substantive counts in the case only three related to each nutria we called thirty nine witnesses out of those thirty nine only one testified exclusively to age and age want the second confidential informant who at the very end only one of the of the other thirty eight witnesses twenty one of them talked about age and age at some point but that was only secondary to the fact that they were either patients that revived first and mr herrera would be the perfect example of your honor's mr herrera who own age and aged that they want to say is not part of the conspiracy testified at trial most of his testimony was about his involvement at revived therapy where he was the massage therapist and was told by a how to do the fraud in the start filling out forms that one true there was no motion to sever at any point to sever from mr sosa and we had to per hour i'm sorry for mr martinez the kota friend in this case and we had to prove mr martinez's involvement in the crime who was managing revived therapy so all the witnesses the twenty one witnesses that testified that said anything about each and age we had to call because they had information relevant to mr sosa's operation of renewal and revival and then again there were the worst i had those numbers wrong there were seventeen who talked about each in age and others there were twenty one that just talked about survive and renew that's what makes this case different from my eyes and i respectfully disagree with my opponents that my is is directly point here first of all in my eyes and most important thing as i mentioned when i talked about constructive amendment my still with the bustle concerned they want to trial against my eyes and his conspiracy they brought in evidence of bussel bustles not referenced in the indictment anywhere that was never alleged the proofs at trial were all about bustle eight of the eleven witnesses that testified talked about the bustle conspiracy and how mr mize learned of the conspiracy from him and then did his own conspiracy which the indictment cover that's not this case as i just illustrated from the witnesses called not even half of the ovens here was about  finally there's not prejudice for a material variance to require reversal your honor unless there is not overwhelming evidence of each defendant's participation in the crime and here we have overwhelming evidence the evidence soco was that she started the first clinic she sought out the patient recruiter who recruited for all the clinics she helped recruit the doctors she gave instructions to the massage therapist on how to do the fraud she did the billing she received the profits and maybe most importantly she actually staged her own automobile accident with her husband mr sosa they actually got in a car with two other people that mr sosa recruited and they drove off the road called the cops and claimed that they had had an auto accident and then build from there renew point for treatment that they never got and never needed and then on top of it for mr sosa he called an insurance company and said his so goes son was in the car and billed for him as well and he was never in the vehicle i don't know how the jury could convict them based on what they did supposedly at age a nature if it had no connection when staring them in the face was their own automobile accident that they staged and all their other links to the other two clinics this case is not cut jaco's either which opponent soak argues or controls that was eight defendants who got eight separate loans with one person and the government went to trial in one conspiracy none of the eight people were linked that's the whole rimless we'll conspiracy theory in this court this case is not a real conspiracy these were people who overlapped at revive renew and at the end at age an age and there's no question that they turning up quickly to the the substance of counts of health care fraud and mail fraud opponents soca argued in her brief that the government's failure to give to the site aiding and abetting in the mail fraud council was fatal i think the law absolutely clear that i don't have to cite it that it is presumed to be included and every indictment so there was no constructive amendment by failing to cite that she argues here today now for the first time that there's case law that would indicate that if the conspiracy had problems than the mail fraud in health care fraud counts would have to be thrown out because they incorporate the conspiracy the case she's referring to from her supplemental authority which i got yesterday  is united states versus hanging and that deals with pinkerton liability the substantive counts in that case were based upon a pinkerton instruction and when the court below found that the conspiracy was a problem and threw it out after trial the court did not consider whether that affected the substantive counts we don't have pinkerton here the the counts the mail fraud in the health care were promised upon aiding and abetting theory and the hanging case which she cites if the court would look at footnote eleven says that the holding in huntington is limited to the facts of the case other courts have held that reversal is not mandated where the court is persuaded beyond a read of reasonable doubt that the jury would have convicted the defendant of the substance of counsel either is eight years in a betters or his principles so even the case of which you realize allows for what happened here which is they were convicted for aiding and abetting i'll turn in my last five minutes here to the sentencing issues because they have found it's have not addressed some of the other arguments made in the brief and all come back to those if i have time both both defendants receive the risk of serious bodily harm and han they've argued and judge blodgett i think you hit right on it the question was for the district court is was there a risk of that occurring and what the appellant's want to ignore and i agree with them a lot of these  single car people driving off into a tree or getting out and hitting a light or whatever but first important for the court to understand and as i've indicated in my brief what they were told to do if i was a someone on the street and i was approach what i was told is you need to get into an accident serious enough to get a police report because if we don't get a police report we can't bill insurance so you can either run off the road run into something or run into another vehicle that right there is enough in my opinion that is creating a risk of harm i don't care if you're in a car by yourself if you decide to go up the road into a ditch another car could swerved to miss you and hit another one anything could happen but to your point judge boggs there were there were accidents and i've cited them in my brief  to one car hit the other from behind him when the police arrived to take the report the car had been pushed out into the intersection that creates a risk of harm right there another car coming through the other way the second accident i'd point the court to was mr waters mr waters chose to go off the road you want off anyone into a ditch and he testified at trial that you're his back and he actually went to the e r and you got a prescription for it that night he really did need truth he did need treatment so especially at this point as judge boggs indicated with the question being clear air i don't think you can say the judge clearly erred here and finding those facts to support the enhancement for the reckless risk as to the  you're not going to see him and she said will give them a message will you tell him them tell him to tell the government that mr akun on is in a fight with my with my husband and he's making stuff up mr akun on earth manager knew and he had already been convicted implied guilty and was cooperate and everybody knew that that's the first meeting the second meeting is just a month before trial mr martinez says a bond has now been revoked and he's he's in jail awaiting trial and mr so shower and there isn't a soca and there's a discussion where she wants to give her money and i think the court found totally appropriately that under those facts and circumstances and given everything that he heard at trial about mr sosa was in everything in this conspiracy quoting getting the money hoping recruit the physician doing his own staged acts and everything i've already covered under all those facts the only reason they could have been there that day to provide money a month before the trial to the wife of somebody else going to trial was to try to influence his testimony and the law is absolutely clear he doesn't have to do that directly he can be sitting in the car as he was and attempting to influence a potential witness or another person and asking his wife to deliver the message and soca at sentencing did he try to argue he was only a driver just taking her out for us didn't he exactly argue that and the judge said you know what i don't mean to be trite but you are a we all men we all man bank robbery you knew everything that was going on in that house side on these facts can't find otherwise i think i'm just about out of time i guess what i'll say and something up here is and this relates to the multiple conspiracy issue ultimately these defendants were not sentenced for the loss related to each in a to rehab what happened was that although there was one conspiracy at trial because the membership over time changed and the participants overlapped and we have to look at sentencing and look at what did they just jointly agreed undertake the judge found that ok we'll take a step back now understanding this is all one conspiracy when i look at what you really should be charged for to be sentenced i'm limiting it to those two and that's totally what one b one point three says is that when we look at sentencing last we don't look at the full scope of the conspiracy because conspiracies can go on and on and on and on we have to look at what somebody agreed to and for all those reasons i don't think there's any doubt on this record that the government alleged one conspiracy proved it and they were sentenced fairly thank you thank you mr della if you reserve any time for meeting there is no evidence whatsoever that mr sosa was involved at all or that he had any knowledge of that nothing was presented at the sentencing hearing to suggest that he had any knowledge of that first meeting or he was involved with respect to the second meeting there's no evidence that he knew what was going on inside of the house or why his wife wanted to be there nobody disputes that he was there nobody disputes that he was in the vehicle but without there being any evidence as this case under the criminal justice act we certainly like to thank you for your commitment to serving as counsel in this case it's certainly a service to the  your client but also to the system at large and we very much appreciate your willingness to take on this case thank you ana i do want to thank all counsel for your arguments this morning the case will be submitted and with that i think