the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god state the united states of america and this honorable court court is in session today's cases will be called as previously announced the times will be as a lot of the counsel the st case today is  talent oscar your permission i'd like to reserve two minutes for rebuttal yes you may have it thank your honor we're here today because mr greenspan's trial and his sentence riddled with errors and if i may i'd like to begin at the end when address the two fundamental flaws with mr green on sentence st the district court committed clear error in its calculation of losses attributable to mr barry on conduct there is no evidence none whatsoever to account and here's why it matters if the district court had excluded that one hundred and sixty five thousand dollars from its last got delayed mystery on xbase offense score would have been two levels lower does the record reveal any connection between mr green on and century back at trial again the government offered two witnesses from central bank of the two only wanted ever seen mr early on and that witness there observed him once and could not say when all he knew was it was not the year two thousand and eleven again the p s r is a count of the evidence relating to century bank a page eight of the sealed supplemental appendix does not mention mr green and all of the activity of these banks predates mr green lawns involvement in the scheme and while a conspirator may of course be held to account for losses reasonably foreseeable by a participant in that conspiracy as this court is made clear once it is that arise before a defendant joins a conspiracy are not foreseeable as a matter of law that is the holding of the campo and the same facts present here compel the same conclusion the district court also the community clear error is if mr cohen who recruited undisputedly recruited mr gonzalez problem into this conspiracy slew him from florida to boston met him at logan airport put him up in his home and directed him without mr greene on even in the country for thirteen months all of that conduct clearly sufficient under craning in this court's other precedent so straight to to warrant the enhancement or role in the offense it was clear or to not to apply then hanssen to mr agree on but not to mr cowan if one warranted it they both did the failure to give it to you both was clearly erroneous and this court is allowed to look at the sentencing court for the same two members of the same conspiracy both of whom allegedly supervise the same doctor in this scheme and and and find that is very clearly erroneous at it at one point the the the court indicated that it was giving a more lift the sentence because your client would not be able to pay restitution what was your response to that it just struck me as odd that one dollar gets more prison time if one has an inability to pay money i i completely agree your hon and i think it's particularly problematic when that assessment was based on the wrong amount of damages as i said there was no evidence tying mr grunow into the hundreds of thousands of dollars that the court saw it somebody should but you stand in the shoes of trial counsel for these purposes are you sell ads here the question i'm not sure an objection was raised on that basis ok but i  agree that there is a fundamental error here with the sentence which is based on reported to have seen your client i think with mr cohen at the bank during this timeframe and then there is this phone conversation where there are references to who said it and there is testimony that there was at least an understanding that it was your client who is on the other end of the phone call in in the relevant time period no i understand that you challenge agree on at brookline but i think you do have to look at it bank by bet mr the testimony from the witnesses at brookline bank was they had never seen mr green on in their lives there was not surveillance footage of him ever withdrawing a check depositing a check in a parking lot which was in market contrast has expired it got i had an answer thank you and i'll agree but the there simply was no evidence at all at and the united states of america precede plays your honor is i'll pick up where my where appellant left off regarding the last amount with respect to brookline bank and sent century bank the record is clear about that that it trial court and the jury received evidence that mr agree on was involved in both of those banks not only was he running a business called eighty professional which was used as a as mr cohen excuse or mr cohen's explanation for the checks but also the jury convicted him for counts of conversion of government property zero related she checks that were that were deposited at century bank in brooklyn and that indictment count two through five you just said mr cohen excuse me i am i apologize mr rionda was convicted of counts two through five and mr mystery on was and those checks were were deposited at century bank and brookline bank what about his argument that he hadn't joined the conspiracy at that point and division of labor angry on was the source of the checks until he left for the dominican republic and only then was cohen able to procure checks there is no evidence that anyone himself held at sentencing that mr agree on in his view was the behind the scenes architect and the driving force behind this scheme and that he's a range has to stay in the background and take advantage of others who who were the faces of the conspiracy and took the risks associated with being the face of the  directing mr gonzales to open bank accounts deposit checks etc was not present before the just record at the time of sentencing and the district court found that there wasn't sufficient evidence of direction for an organizer leader manager enhanced met for mr cohen either way it's irrelevant because under under craig the only thing that the government needs to prove to support the enhanced meant is one act directing one actor at one time and that is  mr gonzales was cooperating at the time and my understanding is that mr gonzales zero was a was a lightning rod of a trial but this you can see from the record cohen was tried but not the other i believe that there was more evidence and mr cohen's trial showing his direct relationship with the banks again he was the face of the banks it was his eye all to account was being used that evidence wasn't present for mr riady and as a result mister mr gonzales was unnecessary went nest to explain the conspiracy it's just it's a two and a half year difference in incarceration just reich's me is once again particularly given the statement that he couldn't pay restitution which is just lynch mentioned  was it specifically objected to but it has been raised on appeal yet we  restate that disparity in a sentence should also take into account the different role in that and i think the district court saw a very different role for both mr riady and less culpable than mr agree on who was the source of the checks seem to orchestrate the conspiracy and using mr cohen as a friend or a anything else your honor is i had to address the issues of the p s r or the or the agent clark issue but unless the court has any questions in terms of factors a court should consider when imposing a sentence but it seems i don't know here but we've had plenty of restitution cases where the defendant and fact has fun maybe abroad and not the last claims poverty and no ability to pay and a district courts are skeptical when they are faced with  such assertions i'm not sure what the district court was referring to here but i don't think it necessarily follows that it was a comment about ability to pay perhaps it was in it's not clear to me either certainly there was no argument made by the defendant that he would be unable to say i think it was sort of assume a sponsor a after this conviction you'll be sent back to the dominican and we cannot as   legal matter extract money from you that is in the minutes and therefore i will sentence you to a longer term i so the judge was rejecting his argument that he should be given a break thank your honor attorney one reference to a clear division of labor and that again harkens back to what this court said in all or a hobby which is that you're not supposed to enhance someone's sentence as a weeder manager when each member of a the meeting at this time that concludes the argument in this case