bin protect being protected at sentencing is the right not to be sentenced on the basis of inaccurate or unreliable information this restitution if paid will result in a wind windfall for the victim the i r s the question today is whether were all the parties agree that the government's evidence at the restitute of the restitution is inaccurate that whether the court can choose to impose that amount of restitution without reducing it for the known error this case involves the fraudulent filing of tax returns by miss sheffield and two other defendant the i r s was the victim the i r s only accepts one return per taxpayer port per year my client was sentenced last year after lengthy sentencing hearing sentence last after letting sentencing hearings on earlier dates the government spreadsheet that they introduced and to which i did not object to its mission but disputed attacker a c after a brief look at the eighty four page three thousand four hundred fifty line spreadsheet and could see duplicate the government conceded duplicate and the court saw it as well nonetheless the government didn't offer to review the spreadsheet for any other duplicate but asked the court to impose the knowingly wrong amount the court saw the error but restitution was not reduced by the known error and the court did not resolve error as it's required to do under eighteen us code thirty six sixty four are those the only errors that you pointed out to the district court what others excuse me i pointed out pointed out was one duplicate but seeing that there were just skimming through it many other duplicate but the only one that was discussed was related to one person i've gone through the entire spreadsheet i had nothing to do one of these afternoon each of these fraudulent returns with regards to the education credit as i understand the scheme was supposed to generate a tax credit refund of one thousand dollars per taxpayer yes ok i went through the i think it's column g which has the suppose it amounts that were used for restitution by my calculations and i could be off by a couple seventy two of the think of the people whose tax returns were submitted had refunds of more than  thousand dollars and the amounts over that thousand dollar threshold total for those seventy two amounted to seventy four thousand nine hundred fifty six dollars was there any explanation of where that duplicate our number show and there were duplicate set there wasn't just one duplicate per person but up to four duplicates per person for duplicate returns for the senior my number came to one hundred thirty six thousand dollars that circuit is that restitution does not have to be done with precision since many times it can't be specifically when dealing with value of property in mortgage fraud cases or estimated earning capacity or kickbacks and medicare fraud the cases cited for this principle are those where it's not possible to be precise as in ones with mortgage fraud were someone would need to opine on property values or workers compensation fraud they fed second twelve eighty six in the eleventh circuit in two thousand related to workers compensation fraud were an expert needed to opine on earning capacity of the defendant which requires a reasonable estimate the government also cites to f trial to show that mistakes were pointed out but the number didn't change however a footnote below shows that indeed after an error of calculation was brought to the court's attention the ultimate sentence was for less than what the government had proffered or at the expert had testified to united states versus martin eight zero three fed third five eighty one in the eleventh circuit in two thousand and fifteen was a mortgage fr case where there were bundled mortgage sold into securities which obviously would make it much more difficult to identify precise proceeds and the united states versus teehee eight ninety three feds second  seventy one in the tenth circuit in one nine hundred ninety was a telephone trafficking in authorized access devices something i never heard of where the district court awarded less than seventeen percent of the requested restitution that the victims claimed precisely because of the inability to determine true representation but where are the numbers are precise the amount of re be precise and a lack of or precision shouldn't mean the inclusion of known errors do you have a case that stands for the proposition no your honor i do not although i look to again go right or and as i started with a quote from you as we guilt in are we look to the purpose of sentencing and what is being protected at sentencing and if we are to believe that the right not to be sentenced on the basis of inaccurate or unreliable information is our guide then inaccurate information should not be allowed to to be the order of restitution the amount of the duplicates is large the windfall to the victim would be very large and when it's known and you have a finite amount of thank you your honor may it please the court lindsay baron for the united states of america this case demonstrates the crossroads of a district court jester court's job in determining what this court has already said is the inexact science of calculating restitution when the government has the burden of proof absolutely logic says more five night losses the greater your bird i'm sorry the more finite the know when you can really calculate the last well and that's the issue your honor this court has consistently said that an estimate is acceptable and so that necessarily implies that this court understands that there will be a margin of error but the estimate has to be reasonable and so the question is what constitutes reasonable no but then to the fact it does when you have to estimate when you have to make an estimate the estimate can be reasonable but when there is no estimate to calculate it has to be precise and i mean if a charge in a bank fraud case is the improper negotiation of a fraudulent check for one thousand five hundred twenty dollars and that's it and that's what's proven a trial that's the restitution amount of can't be sixteen hundred because that's close because the amount is finite if you have to get into issues that require approximation right because the loss is really unknown and i understand that the value of property for example and what somebody appraised a parcel of property at and whether it was close to that appraisal that sort of stuff makes sense but when you've got a close universe why shouldn't the government be precise specially when it comes to things like duplicate that's not that's not just a myth that's just a mistake so i would like to address that issue in your honor because you went through and i think we all went through that spreadsheet government's exhibit one which is in our supplemental appendix and did some math so i counted ninety one instances where in the same year the same taxpayer there are two claims that are filed in sixty of those instances if you look to eight which represents the amount paid the i r s paid that amount twice now why is that without pulling the individual transcripts for every single one of those tax payers which we could not do at the sentencing hearing in real time i don't know the answer to that but if the i r s paid it then it's the government's position that that should be included in restitution which leaves us with the balance of thirty one tax payers so these are duplicate where they're paid once and then there's another submission and the i r s doesn't pay but that thousand dollars dez appear to still be part of the calculus in column g so we've got by our calculation thirty one thousand dollars that is included in that restitution order that i will concede for the purposes of this argument should not be here but getting back to the question and it's easy in hindsight when we've had time to go through that spreadsheet and go through this math and let me tell you you know it takes a while to do that but thirty one thousand is less than one percent it doesn't matter it doesn't matter it could be off by ten dollars restitution has to be for the unlike last for guideline purposes restitution has to be for the last sustained by the victim and no more that's correct your honor and so i want to show why it was nonetheless a reasonable estimate and it gets to a question that you asked miss planet you asked i believe it was looking at column eight there are refunds that are significantly more than one thousand dollars and so the indictment alleged and pled guilty to a scheme that included not only the tax credit the education credit but there were other false statements on those tax returns and the most consistent and this came out in his walker's transcript which is part of the record in this case was you'll see the refund paid for a lot of these as a thousand and twenty nine thousand and fifty three thousand and fifty five what that was is on ten forty which is the individual tax return there's a schedule c if you are a business owner and it was part of the scheme for all of these tax payers for the defendants to put some amount of schedule c income claiming that they had a business so that they would then qualify for the making work pay tax credit now why would they do that because it makes every refund look a little bit different and a little less obvious to the i r s so you don't have thirty four hundred thousand dollar refunds you have thirty four hundred refunds that are all a little bit different now that was not included in the restitution argument and the district do you mean not included in the argument it was not included in the restitution order so the government what happened to the amounts over a thousand dollars they were in column g and i don't believe so your honor i believe those are in column a now there are instances where you do see more than a thousand dollars there are a few instances where there's two thousand three thousand and that's because the education credit was claimed for more than one person so for example if the taxpayer how to define how to dependent you would see that education credit claimed for multiple people and so if there are instances where there why it's more than a thousand i believe that so like for example if you look at line two eighty six the tax credit is nine fifty that's actually less than a thousand dollars because it's not an automatic thousand dollars it's up to a thousand the way the credit works is if you spend four thousand dollars or more in a given tax year on education on qualified education expenses you can get up to one thousand dollars so if the amount claimed on education expenses is less than four thousand then you get some pro grade amount of the thousand dollars so that's why sometimes it's less but sometimes it's more because it's claimed for more than one per cent but the restitution order and the district court made clear it was basing it that's over a thousand right and the explanation for that is that for an individual tax player if they've got more than one person the way it's supposed to work if you if i'm a mom and i've got three kids in college i can claim that for each one of those and that happened in this case where the education  my concern is this the explanation you've given today makes sense none of that was presented to the district court the a usa presented a naked spread sheet to which there was no objection but then there was no explanation like he hears why this works heres why this amount over a thousand should be counted here's why this is correct here's why this is not a duplicate and what the district court said to the  sheffield lawyer was you tell us where the duplications are and do you have a list and given that the lawyer was given the list at the hearing the lawyer didn't have a list she was given the spreadsheet before the hearing your honor we didn't produce it for the first time  hollow early before the hearing i don't remember that but i know i had emailed it beforehand how many entries were on the list a lot a lot of very little three thousand four hundred something that's correct i got to listen takes a while to go through it does your honor well spreadsheet would not have been introduced into evidence at all if it's a civil case then it had to have somebody authenticate the spreadsheet and explain all of the calculations probably the c p a or somebody in a criminal case the government doesn't carry out a burden of proof anymore like that and finite cases where you could calculate the amount and it doesn't make much sense that in the criminal case we're liberties at stake would not have been admissible in a civil case and here's why this was a summary exhibit under rule thousand and six what it was the defendant says it was a summary of the government's argument that it was actually a summary of voluminous records three thousand four hundred forty nine the foundation to show the court that it is a thousand and six summary but that if she was obviated here and now the defend it was not stipulating that it necessarily means that the restitution should be that amount but the stipulation that it is a summary of the tax records of that comes in and so that obviates the need to call the witness to summarize the underlying records but to get back to the question of what is the district court supposed to do in real time and the burden shifting so the government absolutely has the burden of proof and what this court has said is that means that you know unlike in washington where the government just stands up and stipulates we have to offer something and judge jordan you wrote the opinion in washington and you said in that case there was no summary chart there was no spreadsheet there was nothing there was just the government saying there were two hundred fifty plus victims well in this case we had a thousand and six spreadsheet and that was sufficient evidence for the district court to say ok the government has met its burden now at that point the burden of proof always stays on the government but the burden of persuasion and there are two cases cited in our brief it stone out of the fourth circuit and brain out of this circuit which suggest that once the government has met that burden of establishing by preponderance of the evidence that this is a reasonable estimate if that number is wrong if there is an offset to be identified then the defendant has to make it clear because put put it put it in the perspective of the judge judge cohen has to make a real time decision here is this a reasonable basis moment of just a minute i circuit court two thousand and thirteen and this was the court remain ending on that exact issue it was a health care fraud case in which the issue was were there medically necessary services that were improperly included in the restitution and this court said henri may and bain must offer evidence about what goods or services he provided that were medically necessary and the value of them in order to receive an offset and so i think what the defendant is asking is that all they  that's what the evidence is that in the other party i'm sorry madam but that's because the evidence is in the other party well as opposed to the government there's all the government well and i will say your honor that we for the sake of this argument and without pulling the individual transcripts for all taxpayers we will concede that there are thirty one entries that you know may have been duplicate may have been erroneous late in there but that again we are reviewing to determine if the district court's estimate was clearly erroneous and there was only one example identified at that hearing that was clear error but even if all thirty one had been identified if there was like one if this year if there is just one that's reversible error if and you look at it and you say we agree that that one should be reduced and the district judge says no i'm not going to reduce it i'm ordering that too that's reversible error even though it might only be a fifty dollar difference right well i have to i have to say that honestly if i had if i had known ahead of time that there were thirty one i would have asked for the lower amount absolutely the problem is it is your burden to figure out whether or not there are duplicate it's going forward i understand your honor i do just want to point out that in the future a case that was unknown error in the restitution order both sides conceded did you say and hope it was unknown or open and i'm talking about the trial and have to i believe have was the issue of whether it was there was a merrill lynch victim amount that should have been included but i'm talking about for trial which is a case this court affirmed the restitution order and in that case there was a known errors of the restitution was based on gross income instead of net income and there didn't seem to be any dispute that that was wrong the court nonetheless affirmed that because again we're looking at the benefit of hindsight in the moment at that hearing was there sufficient evidence on which the district court could say this is a reasonable estimate and so in this case so the district court in this case had knocked off one hundred thousand dollars and said i'm rounding off it's a reasonable estimate because there might be some duplicate you wouldn't be able to successfully appeal  we would not have appealed in fact we know that there are almost forget whether you would have if you did appeal you'd lose even though the district court in correctly denied you denied the i r s one hundred thousand dollars in restitution if not if i because it's close enough honor my time is that may answer the question is ten we know that the district court's number was low that we remember back to the issues that were raised in the sentencing memo we had asked for restitution to include the other fraudulent claims this schedule c income but you haven't crossed appeal issue now we have it but that's what i'm saying your honor is that we know the district court's number was wrong it doesn't render it an unreasonable estimate when reviewed for clear thank part sheet for co defendants for the co defendants and i didn't realize this was the spreadsheet that would be introduced until we walked into court that day and so i had not looked at for duplicate contemplated loss and restitution there is no doubt that restitution it should only be actual loss so it wouldn't necessarily be a lower amount so the fact that the original amount included things that it shouldn't have included and so it brought it to the lot the corrected last amount that the court adopted does not mean it was given a lower number in order to not have to look at the specific entries the fact that it was futrell the government said that the amount was affirmed yes the amount was affirmed but only after the court had reduced it by what we could only surmise was the unknown error that the government brought up that the government realized there was income vs net income and it should have been net income not gross income so the numbers actually went down the court imposed restitution of one hundred  dollars two hundred twenty five hundred thousand two hundred twenty four dollars ninety two cents instead of the requested one hundred eight thousand eight hundred forty four dollars so each even though the amount was affirmed the amount had been reduced after the testimony about the error it wasn't that the error was discovered after the sentencing i don't so like to distinguish bain in bain this was a health care kickback scheme and as your honor aptly pointed out the reason the burden shifted to the defendant in that claim was because the defendant would be the only one who could say what actual services were legally rendered to the vendors versus what was unlawful and so in that case the entirety of of the argument re whatever the defending could put up in this case these were the government's numbers the entire time this that this is the i r s providing these numbers and there is no reason for them not to on duplicate once a duplicate was seen there was no reason that the court couldn't take or the government couldn't take the ninety days that it had from a restitution hearing we're talking about real time but in reality the court has ninety days to come to a restitution to have a restitution hearing and come to an amount so they're not limited to what happens on that day if there are concerns that there are  mistakes and once the court learned that there was a mistake conceded by the government and provided by the defense it should have stopped