if it pleases the court i would like to start by addressing the issue of the loss in this matter i think that the parties down below are somewhat confused with regard to the issue when appellant filed his objections to the p that there was any other evidence introduced by the prosecution regarding loss the prosecution witness that agent should rock and gave specific testimony i direct examination and his testimony there was that between him and another agent they reviewed fourteen claims for prescriptions of those fourteen claims he found only two of those needed to pile power wheelchair and that's on page nine fourteen of the record then he specifically goes on to state i personally observed the beneficiaries i spoke with them i visited their house and i looked at their paperwork so it appears from the record that it's clear that fourteen of these claims were examined that two of the claims were valid after appellant filed his sentencing room memorandum and said that there was no evidence that there were claims look at for the other doctors and he mistakenly said orally fifty doctors when there were another twenty two doctors not fifty the prosecution filed it response and in that response the prosecution stated that there was no evidence that any of the prescriptions were fraudulent and that's on their submission and document one hundred eighteen and that's on page four of their submission they were incorrect in that assertion but that was the assertion that the judge heard it sentencing and they were incorrect because they may have forgotten they may have overlooked but it was clear that the testimony was too out of the fourteen prescriptions that were looked at were valid and that people were interviewed and paperwork was checked at the hearing on the motion for sentencing with regard to loss plaintiffs again raised the amount of loss or a loss and stated at that hearing again that there was no evidence with regard to any of the prescriptions being valid and again they had ignored the trial testimony that two of them were invalid at that point in time appellate attorney had only argued with regard to one issue to start with they had not yet got into the issue of the amount of the law they were played have took a lot of time arguing with regard to laws the district court judge listen to a lot of what they said pointed out items in the record where the judge believed that they were incorrect and ultimately accepted the last count the illusion of the p s r being attend the intended loss an actual loss of six hundred fifteen thousand dollars and isn't that the point that  the argument leases that you have intended loss correct and the standard is different right it's a preponderance standard it's not beyond a reasonable doubt  isn't that sufficient i don't believe that it is and i don't believe that it is for several reasons number one there was no explicit testimony at trial regarding any of the quote other two twenty two doctors that had prescribed howard chairs the only testimony at the trial was generally directed towards the five witnesses and then other per script sions by those five doctors it is conceivable that there was evidence that was introduced but it was not directly hundred usd and ended identified as being wheelchairs prescribed by the twenty two doctors that were named  as part of the conspiracy so right off the top we've got six hundred fifteen thousand dollars worth of lost found by probation and that initiated all power wheelchairs approximately forty eight percent of the power of wheelchairs were by those other twenty two doctors the remaining fifty two were the doctors that were named in the indictment were litigated trial so off the top we have almost fifty percent of the intended loss with at best no evidence or a percentage evidence of two out of fourteen being valid and i think that what happened at sentencing is that there was a very extended discussion between plaintive and the trial court with regard to intended laws and my best guess from reading the transcript is that the trial court got distracted on the discussion about intended loss and didn't realize that he was being told  slightly a different version of the truth of there being no evidence at trial regarding valid prescriptions because the trial judge absolutely recognized that there were two contingents of doctors  there were the identified doctors and there were the twenty two other doctors because when counsel below at sentencing brought up the position the argument that well there was no evidence about these other doctors and he mistakenly said fifty instead of twenty two but when he said there was no evidence of these doctors the judge a centrally agreed with that because the judge said well i certainly hope they all work for argument so if the judge is right that they all aren't fraudulent they based the loss calculation the intended loss of fifteen six hundred fifteen thousand dollars was for every we don't care prescription if the trial  correct when he stated i certainly hope they all are fraudulent that would have divided right off the top the amount of the laws only fifty two percent of it would have been valid and that would have taken down in the brief i said i believe two hundred eighty seven thousand or somewhere in that area that is a significant number because that changes the guideline range by two points it's also significant on restitution i understand that appellant has a more difficult argument on the issue of restitution because it is clear that there was no specific objection  downbelow to the amount of restitution as opposed to there being an objection to the amount of loss and that objection that related to loss was both to intended last and actual loss the parties sort of agreed on actual loss plaintiffs disagreed on an intended loss and the court resolved intended losses being actual loss based upon all of the documentation found  the court elizabeth dinello for the united states good morning morally on this issue of loss the district court could not err and calculating the offense level under the guidelines district court recently could find by a preponderance of the evidence that all of the claims that minute to medicare for the power wheelchairs and accessories for arthur once they all came from a company that was to file or fraudulent power wheelchair claims furthermore the evidence showed that the coconspirators plate paid back they use marketers they paid kickbacks for the prescriptions and again the evidence shows that medicare would not have paid for those claims if there were kickbacks could the district court just ignore the evidence from the trial that seemed to indicate that two of the claims were in fact valid even if everything else was fraudulent you had two that were in fact valid could they can you just ignore that while first your honor that was not a fact or a claim  witness did not testify two of the fifth were valid what he said was that two of the fourteen beneficiaries that he and agent coleman had interviewed needed power wheelchairs were putting aside the issue of we don't even know the timing when those interviews were conducted relative to when the prescriptions were filed even if two of the fourteen beneficiaries actually needed wheelchairs their age also testified that of the beneficiaries he interviewed he saw homes that were unsuitable you saw wheelchairs that were sitting unused he was aware of wheelchairs not even being delivered furthermore the patient files show that  they were chronic problems within the statements with omissions and an order for a claim to be valid the patient file needs to be complete so even if the district court believed that t the fourteen chairs were medically necessary that still doesn't overcome all the evidence that this scheme was fraudulent overall and that medicare would not have played a penny had it been aware delivered and the home assessment was done and the company itself was properly certified as a medicare provider yes if all those factors were satisfied then that would affect the loss for sensing but unfortunately here none of those other factors were satisfied the evidence shows that we have a company that was not properly a medicare provider we have a company that was regularly paying kickbacks person testified at page two twenty ninth that when a company uses marketers medicare does not pay those claims yet marketers were used throughout so again on all these even if they were medically necessary that would not be enough to show that the l of each will share like how much to medicare reimburse for each well we'll share the testimony was they reimburse between four thousand and five thousand per wheelchair that the cost to  was nine hundred to one thousand so that was one of the reasons this was a particularly lucrative form a fraud and with respect to restitution counsels acknowledge that  that restitution was not objected to in the district court so that if you have to force would be for plain air restitution looks at actual loss the discussion in the district court was with respect to intended loss  either on loss or any of the other issues court again i'm going to be very very plain we actually may end up doing this argument less than the allotted time that be a first but yes specifically for the testimony with regard to t wheelchairs the agent specifically testified only to the needed power chairs said two out of the fourteen why did you say that question by the prosecution answer by the defense because i personally observed the beneficiaries i spoke with them i visited their houses i looked at the paperwork it government agent on those two play out of those fourteen claims he reviewed all of the things necessary for whether or not a prescription was fraudulent and he found it to have the fourteen legitimate if you extrapolate that percentages i did in the brief it's going to lower the amount yes i believe the figure is five hundred dollars and so how did you calculate that i took the percentage of valid per script and versus invalid that two out of the fourteen were valid i took that percentage time to six hundred fifteen thousand dollars and effort and after calculating that percentage i got out to a number of five hundred  twenty seven thousand four hundred thirteen dollars and twenty two cents and they had to put fifty on page thirty six of the opening brief like counsel to school can i ask you a question please how do you answer the government's argument there was as i understood it that even if a couple of wheelchairs were really sold to a legitimate purchasers that your client was not a properly certified supplier because the whole setup was a fraud well i think that number one he had to be a proper properly certified in the end of sense of certification because he received a certification there's no question and i'm not arguing that the prosecution didn't introduce evidence of fraud in that they don't have sufficient evidence to justify a conviction i'm not arguing that what i'm saying is that with regard to the loss that occurred in this place they have not shown that the actual or intended laws which the judge found to be the same amount were what probation and mischa lead assume because probation operated under the assumption that all prescriptions were fraudulent and i think that that was because the government assumed to that all the prescriptions were fraudulent because they perhaps overlooked the testimony of the age trial that i've just read to the court well was there any testimony in the trial specifically as to the amounts of these two invoices given that you're done you're just making a calculation i am making a calculation and i understand through case of the court that that's an appropriate extrapolation is appropriate and i believe that there was a supplemental forward he filed this week that cites that case i believe actually it was a judge ward lock case that says it's appropriate to expose extrapolate the amount a loss based upon percentage so that is what i am if there's no other questions this is going to be a first for everyone all right thank you counsel thank you