the these were considered a family although only if three of these defendants were were actually members of the family and the the problem that we have argued in our our is that the government treated these this group of women essentially as a group and had largely undifferentiated conclusory allegations material let me tell you the first big problem you to the extent the district has misapplying the guidelines is failing to undertake the appropriate guideline analysis then it would fall into that part of the abuse of discretion aspect of it as well the clear error is in it is clear  to make any any findings at all with respect to three of the defendants and one one finding it it did make with regard to the fourth defendant but did not apply that finding as to why and when they joined the conspiracy and when what ass ass actions of the conspiracy from the time they joined it were reasonably forseeable to them those are the very first step in the analysis for determining the relevant conduct in order to get to roll you have to at least start with relevant conduct and b failing to take that step it did with regard to one defendant the one we're calling our car on because that's one of her last names dischord did recognize that she clearly didn't join the conspiracy until may of two thousand and twelve but then the district court didn't as thomas is our convo back and say well i have to then discount the fraud that occurred before may of two thousand and twelve at least in order to figure her her loss amount so so that is i mean it's two levels of error as to at to the others because the court didn't even make the undertake the analysis that it did make us to our cone and hist our cone even though the court made the correct finding that she didn't join the conspiracy until may of two thousand and twelve the court didn't then back out the numbers so we have these again grouped up numbers that just don't correlate with the reality of of the participation of these individuals and that affects both loss particularly fex loss because it's a numerical calculation that you can clear show clear but it's also clear error in regard to role because what the district judge it has to find in terms of role is some actual management of another recruiters of the people with the beneficiary numbers it seemed to me that that sounded like supervision that wasn't supervision and there was no no evidence of supervision really by anybody on the pharmacy side of the recruiters but to the extent there was evidence of supervision of anybody on the pharmacy side it was by the leader of the this conspiracy daniel suarez the testimony with regard to it is so telling that the government the government cites it in the in the transcends in transcripts i think it's docket for a one page fifteen the most damning testimony that the government had to these defendants participation in relation to this recruitment thing is that  there was generalized testimony there was testimony by an agent that someone had told him that they were present at least and sometimes when payments were made to a recruiter or to a beneficiary but again even in that the best case that's the best testimony the government has that still doesn't get anywhere near the line for the role management leadership role that is required under the guidelines i thought there were prisons report was that they it's consistent with the factual proffer which was that they were responsible for the money that was used in them because they were the owners of the of the company on the pharmacies but there was no there is no testimony to the effect it was objections to that to that to the extent that there was no testimony that they personally paid that was with a dispute at the pharmacies that they own paid pharmacies that they were own and in another case the government simply would have called these people nominees i mean and that's the could if that's not what i'm trying to get at i'm just trying to understand the fact that these defendants own different pharmacies correct yes ok and the pharmacies thing  paid the recruiters for the men official information i think that is fair from the record to say that the pharmacies the money derived from the pharmacies went to the recruiters yes yes ok and i own the pharmacy they were the owners of the pharmacies of record but again this court is never held they never worked at the pharmacies that weren't present at the pharmacies there were pharmacy technicians they were right they were pharmacy technician they fell prescriptions they fill prescriptions i'm not sure if that was in every case but they were actual some prescriptions but i but some of them were felt as correct but yes there's no question but again all of those facts go to very are individual cup ability that they did have a cup ability but in terms of the not the government's notion that i have to supervise one person right they do just want one is enough one is enough but there are none and that's the problem the payment again the martinez case that we've cited goes over what i thought each defendant admitted they got around payment i thought they actually paid him but i have to look at the record i thought it was defended and then they recruit to do this no no that is ok so you're telling me if i go look at the record they had no connection with any of these for creditors they never solemn they never communicated with them know that there is testimony in the record that they were present present again presumably when daniel suarez is dealing with what he's paying the recruiters either when he's paying the recruiters or when he's paying going to fisheries there's there's presence there is definitely evidence of present there owner of the company right the money is just not enough particularly particularly so heightened importance when you have a family circumstance because here you have clearly suarez's getting the very vast bulk of the money clearly it's undisputed he brings his mother and a angelina back from that each defendant here got at least four five hundred thousand dollars right of course we don't know exactly where that money goes after that and that's really what well let them know that they did this and got twenty one million dollars or something and each of they their money if if the guidelines were based on the financial aspect that i would not have an argument on that i'd still have a great argument on the loss but i wouldn't have an argument on the role i've been on but all they have here is the money they have the money and mr daniel suarez ok you've based the rolling the defense determination on three factors the first is the factual proffer from each of these appellants and in their factual proffers each of them said quote i paid medicare beneficiaries and used others to pay beneficiaries so that the beneficiaries medicare beneficiary numbers would serve as the basis of fraudulent claims so they're all admitting that they paid these medicare beneficiaries number two as agent crespi the case agent testified the coast daniel suarez spoke to the agents post arrest and he explained how the conspiracy worked he explained that they all equally managed the conspiracy they paid their patient recruiters everybody was there and each farmer see when these patient recruiters were paid and these recruiters were paid for a couple of things they were paid because they in turn recruited these complicit medicare beneficiaries so they could use their numbers and they would pay in turn the beneficiaries and too they were paid the crew quarters were paid because they were getting per script and false perceptions from from complicit pharmacists so there was a whole chain of events were that were put in place by each of these owners according to suarez and remember daniel suarez is the son of our khan and the nephew of two of the others he was only eighteen years old when this conspiracy began and was twenty three by the time he pled guilty he was able to explain to the agents involved exactly how this played out exactly what they did they took money from all of these pharmacies and they put it into a company called red and blue financial shell company and from there they distributed money they distributed money even from the pharmacies  there are differences among the defendants for example there is testimony that the lady whose name begins with an actually ari paid recruiters but then there's testimony that our  there when somebody was paid i mean there are differences i agree and there's also a difference with people came into the conspiracy later i mean they can't they can't be liable for monies that were losses that occurred before they came into the conspiracy right that's correct but then we have to go back to their own factual proffers again of members each of them proffered that they were part of this conspiracy starting in september it was only when they came to the point of sentencing that they suddenly decided that no no we did the district judge make a fine make a finding that he believed there proffer and not and  actually couldn't find a district judge making that the way the court analyzed in terms of role in the offense or the amount of the loss there i think it goes to both doesn't it well roll in the offense is not what i'm talking about the money now the amount of money which has to do with how much you go up in the sentence and how much you have to pay in restitution so i'm interested in on both those two bases the court looked at in terms of their own factual proffers said that they owned and operated the pharmacies beginning in two thousand and ten but the court said i'm going to look at this conservatively for determining the amount of the loss and pointed out that there was testimony from the case agent that that had reviewed all of the financials of these companies that the conspiracy really started ramping up in two thousand and twelve that at least two of the pharmacies that had generated the greatest amount of the loss were not even incorporated until two thousand and twelve and one in two thousand and thirteen so the vast majority of this the money that was of the twenty one million dollars that was stolen from the government happened starting in two thousand and twelve as vast majority get you past nine point five million not at all but here's the way the court did it very conservative estimate in the vigil eyes for each of the particular defendant first the court looked at this which pharmacy  the particular person actually get money from and which pharmacy that they actually own on paper so starting with mrs gonzales she was the owner the court went through this analysis it's all in the sentencing transcript in for a one she owned a galaxy the loss from galaxy was six million dollars roughly the court then said ok we've traced the money that she got from alpha and red and both of those pharmacies had a total of two point three million for alpha and two point seven million for red so the court then added six million from galaxy two point three from mouth and two point seven from red and got eleven million dollars the court went through that analysis for each of the defendants for miss our con she was the named owner and the admitted owner in her factual proffer of red pharmacy the loss was two point eight million galaxy and alpha were two other companies that the forensic accounting actually traced that she had gotten money from those companies galaxy again six million dollar loss alpha two point three million dollars loss so from our con eleven million one for the loss for her o f their role and enhancement but then what do we do about the restitution because we need to know that none of the twenty one million happened before they got involved in the conspiracy so we need to finding to uphold that don't we need a finding from the judge that whatever happened between two thousand and ten and two twelve thousand and twelve they're responsible for it because somehow they were involved in the conspiracy the court looked at the facts again and the court went back to the factual proffer from each of these defendants saying i was involved in this conspiracy from two thousand and ten as they all said ok so it's all based on the proffer then there's but for a role in the enhanced role in the offense we were really doing anything we were living in the brask we were not involved in making decisions and this was a theory that they advance for the first time now how were they involved in two thousand and ten they are involved because first of all they're there pharmacies were instituted according to mr suarez they were all working together  thousand and ten to two thousand and fifteen they were all making decisions and paying patients and they didn't own anything they own the pharmacies in two thousand and ten that's a very good question i think most as i said most of the pharmacies were opened in two thousand and twelve ok so if we go back to the p s i i we can see that individually the only pharmacy that opened in two thousand eleven was galaxy but a few months later in early two thousand and twelve mrs gonzales became the owner so as i said much of the activity is occurring in two thousand and twelve of nobody owns any pharmacies until two thousand and eleven we're not really concerned about the loss amount for two thousand and ten right simply because there really wasn't much what can there be any loss if nobody owns a pharmacy if nobody in this particular if not first of all there's only two defendants that were out of town are making the argument that they were not there at that point in time could they be involved in the in the amount of the loss at the pharmacy or not actually operating into mine until you're out there's a problem with the last amount the whole twenty one million for restitution perp nobody owns a pharmacy get in two thousand and until the actual claims were filed and paid which would be two thousand and eleven and i believe that is why the two thousand and ten figure is when the pharmacy is when the company is ramping up but you don't actually have a loss until the money is actually paid but i can review the record carefully and respond to that if you would like me to send a letter i can certainly do that i'll leave it to the presiding judge  o let you know if we need something ok we're going for with respect to the amount of the loss when we look at the what the court is i mean i'm sorry but the managerial role in the offense when we look at what the court is saying on d e for a while on page eighty seven the court found that the individuals that were directed were the patient recruiters the court says they held themselves out as owners and operators and pharmacies paid and directed recruiters and paid medicare beneficiaries apart from the interaction between the family members i think this merits the three level enhanced meant so that suzy who the killer found specifically and that would be in line  and then started this conspiracy in two thousand and ten with one of them with the with the aunt with one of the one of these defendants are somebody else with one of these defendants which wanted to start out with it would be the last name is break and so if it's dallas he's on my seventeen when he comes here and he starts this he comes here from cuba and and he starts his with his aunt when he's eighteen years old when he's eighteen and then that's twenty chan so is she involved from twenty ten on absolutely she's definitely involved her name is on the the first of the pharmac she moved here and starts the conspiracy or what will i do want to point out and i'm sure your honor understands a person doesn't have to be in florida to be part of a conspiracy and as i understand it ok she but we can say we can determine only from her own admission as to when she moved here because none of that employment in the brusca had been verified that was only their statements to the probation office and as you can see when you read the p s i i that information was not and joined a conspiracy in september twenty ten ok to i believe ok and they didn't as you were twenty one of them testified at the sentencing hearing none of them testified none of them of given the government any and for the only person that testified the not relying on crespi in the other case i was a little confused by all these rep the district judge said i heard the suarez sentencing i'm sticking to my views on that but there's no incorporation in this case i'm just not sure what to do with this why aren't sentencing is what i'm asking you what do i do with that what bearing does it have i think it's referred to a couple of times the court talks about the suarez sentencing when he makes a decision on the sophisticated means announcement he said i'm not going any of the other medicare fraud that we've dealt with so that's the one reference the other reference to suarez is that i gave him one hundred nine months as a sentence and i believe that because we information we have is that everyone the fact that the district judge gave each one of them adamic is on reasonable thomas watch not on reasonable under the facts of this case for each defendant to get an identical each of us did the same each of us was involved each of us made the decisions and we ran this as a family we've asked at this court for and i got the same sense as mr zorra as to clerk's office that will be fine what we want thank you thank you mr clear you reserve your full i think your honor help help us with the proffer and it may well be your argument just is you know you don't factual proffer when there is when the government presents contrary evidence at the sentencing at a minimum yes the district does have to make findings because the government chose to put on evidence at the sentencing it was the government's evidence that contradicted the problem so at that point sure it proffer  recruiters i thought your argument was you will accept the fact findings that he made at page eighty seven i was just rereading them he makes fact tiny's they own the pharmacies they paid the certainly is not he makes some facts timings right here right well it's it depends again if if if i if i pay an investigator you know i could paid medicare beneficiaries because they paid people in addition to the recruiters to recruit the medicare bill apart from the interaction between the family members and so that's it's a it's an absolutely unfounded understand danny's point on regarding page fifteen of the of the transcript that the the agent appears to differentiate three of them from a charge and say that she actually paid where the other three were just present but my reading of the transcript is that he's really clarifying on on page fifteen he's really clarifying that even a chary all he knows this she was present he's really clarifying that that's what he means by paid that's what he means by she paid but again i can understand that it's easy just to dispute that court talks about three b one point on regarding role and being a manager or supervisor but not an organizer and he goes on and as that comment consider recruitment of accomplices does that comment say that the recruitment of accomplices yes is something you can look into as to role yes is that a proper factor for role it's definitely a factor in get in the sense of recruitment bringing somebody into a conspiracy if you've got a conspiracy going and you reach out to somebody and put somebody in the criminal and then paying recruiters doing that no again not to get this this is an operation that for the for certainly for the majority of these people is going is ongoing for two years from the clients certainly for all the con and gonzales they're off working in the basket for omaha steaks or something i don't know where they're working meat packing plant over there and the they're there daniel suarez who's the big money person in this thing says come on down and i'll make you money here is no reason for you to be slaving like that can be you can be the owner of these companies you make money when that's what happened this just is just unquestionable that's what happens and so when these terms are made of i from in or around two thousand and two in and around two thousand and fifteen i conspired doesn't mean that they're  i joined the conspiracy in two thousand and ten that that would be perjury i mean it would be perjury and it would be government induced perjury is it simply not true it's no evidence of it and the and it's refuted by i think he actually goes back and said  and he says but here are the kickbacks are so forth and he distinguishes that and says here they agreed on the proffer that they paid medicare beneficiaries who of course would be participants in there's no evidence that that even though that even in the factual proffer there's no because when you have a term a concept that can be read many different ways and then you have evidence presented sensing that explains it you should rely on the evidence at sentencing that's all i'm saying and  evidence was presented by their witness so it's not like i'm making it up there witness you have any evidence whatsoever any evidence that before she came back from nebraska in may of two thousand and twelve she was involved in any way in this case answer by agent no what about th no you have any forensic evidence they talked forensics let's look at the forensics where does it start two thousand and twelve and again you're talking there tributed the full value of an organ to talk about ramping up some of these entities that can make millions of dollars where they're getting three thousand dollars on in the pharmacies it was all one family affair and he gave them the last amount of the whole amount and that's why they pled guilty your honor i'm saying is when you've got a highly technical mechanical apparatus like the guidelines it has to be operated correctly when you're doing the mechanical part of it and that's that's all this is this is just a mechanical operation question when do i start your time is expired but you go over two minutes i think we understand your point that there weren't evidence of fact phonics so we'll have to review the record in detail the next case in the morning