the morning iran is my name is joseph ryan to represent mr a take leon i'm going to focus my time my portion of the time on why we're asking for a remained with a district court will examine evidence as opposed to spread sheet submitted by the government to determine actual laws that not even their own retirement board has claim exhibit nineteen which is in the appendix on the first direct appeal and fourteen one fifty two is a spread sheet of two hundred sixty seven claims in the cumulative i'm out it's up to approximate eighty two thousand  why he was originally sentenced in the post trial proceedings the judge based upon our robbie's findings said that one hundred fourteen of these were disabled and they were entitled to the money retroactively with no penalties so that liaison exhibit nineteen one hundred fifty five a new  which forms the basis for the current judgment of forty one million dollars what is the basis for the forty one million dollars it is a match conducted by the prosecution team by a computer that mr particularly eno's application had phrases that were in the other one hundred fifty four so applications  but there was evidence that how the original lady q million was dispersed was based on fraudulence missions so to that extent there's evidence supporting the forty two million because it's a discounted fergusson of the eighty million the he two million is based upon exhibit nineteen not upon fraudulent applications for it is the totality of the evidence that these were  that the prosecution was allowed to offer into evidence about this matching phrases judge ross said i see is a straightforward compilation of nothing more that's what that's the source of nineteen not fraudulent applications in fact we submitted evidence to show that these on the line if you look at the big claim files there was no reason to deny the pensions because each one of them had a you and a physical impediment under which they were entitled to the pension independent of any false statements we all thought before this the sentencing hearing twenty three cases th before any of this post trial process we gave the district court in two submissions in the post proceedings a document a fifty four was in the docket and nine twelve was in the docket where we use we actually gave the degenerative disc disease which is common to most of these cases and they are rob the later on when they did the post trial survey they also found those particular impairments still existed eight to ten years later and that's understandable because the permanent nature of it this disease or one miniscule is per minute just by itself doesn't deserve a couple minutes i did so i'm way ahead of the but because he entered a plea and entered a plea agreement in which one of the provisions of the plea agreement was an agreement to restitution amount up to one hundred sixteen and a half million dollars what we have raised is that provision was born out of ineffective assistance of counsel there are many indications of that ineffectiveness first in the process a petition that dr submitted to district court dr jamen recounted how his prior counsel browbeating dr jamie and into thinking that if dr jamie did not accept this plea agreement that perhaps dozens  or more of his former patients would come in and actually potentially lie about their disability against dr james at sentencing i think this is on page twenty eight of my initial brief prior counsel conceded on the record at sentencing that in the figures of losses proffered by the government and given to defense counsel there were at least seventy eight names of patients of dr jamie and who never applied for disability yet were included in the last calculations but counsel stated he wasn't going to bother challenging that because there were hundreds of thousands of pages of discovery it's just too much so the breakdown here in the process is that council should have carved out putting aside all the other areas we raised and the initial people that's now been ruled against us he should have carved out a fat cohering or at least a determination of restitution this was objectively deficient performance it is day to day practice in my experience in the southern district in other districts that negotiations over los restitution to be termed by the court and that is hardly ever a deal breaker so even if the plead remit were to concede the intended losses which is a different standard than actual losses it was wholly deficient objectively by council to agree to not challenge the numbers when the numbers basically the numbers are this the government has said that anyone who is recommended for disability occupational disability by d to any actual lost whatsoever none of their applications that he participated in support and to that extent he knew that they were fraudulent now the concern that i have is what basis do you think you have to think there would have been a plea agreement on any other terms because routinely restitution amounts are left open and pl must be determined by the court or be at a hearing and that it hardly ever is a deal breaker and certainly there was no effort at all to do that as shown by counsel statement that he acknowledged that there were at least seventy eight people calculated who didn't even receive a disability recommendation from dr jamison so now gotten the benefit of reduction his reaction is to fifty three million points or i believe and is there a basis to think that the plea agreement would have been anything less than that yes because if the term of restitution the actual loss amount calculation would have been left to the court with a full hearing back at the time the government would not have been able to show actual losses anywhere approaching fifty three and a half million dollars at the opportunity to make that argument to the district court didn't you and you had the opportunity when the court reduced it to fifty three million to basically argue anything you want and we believe that we made that argument that please greenman anymore that's the problem and you can hardly claim that the fifty three million is the product of ineffective counsel because you got to argue anything you wanted on on the fifty three million or my missing something i guess there's at least two issues one is one is whether there's a procedural bar for dr jamie and to challenge the restitution order and that's how i'm dressing the ineffectiveness issue the amount of restitution that currently exists of fifty three and a half million dollars we agree that the district court was correct and did not abuse its discretion as far as lowering it by at least throwing out the people who you know there is no loss whatsoever because i never applied but we believe that the district court did not go far enough because the remaining fifty three and a half million dollars again is not tethered to actual loss and ability for our appeal we did not request one specifically on the restitution issue in retrospect i wish that i had but the judge did judge moreau did issue one on the sentencing issue which was tied to actual loss of whether a restitution order could be sufficiently onerous that it amounts to being in custody and that issue is has been largely unexplored since then gonzales mentioned the point boyd mentioned the point there is no schedule of payments productive as you see it says as determined by probation and as far as i know that probate that determination has not been made but i will say is this when dr louis newsday comes out of prison he's going to be seventy years old he's lost his medical license and he's going to be facing a seventy million or now thirty four million dollars judgment this is a man who has exhausted his resources defending this case and who is going to be left essentially in poverty if that life so miserable i would submit is to be the functional equivalent of customer because i'm not yet the case i mean you're speculating the district court in the probation department might very well impose a requirement that you client pay ten percent of his income and some fees not earning anything he'll pay very little if anything i mean i expect the government doesn't really have much reason to think it's go recover this judgment but in any event why is now the time to hear this and unless and until peace he's confronted with with onerous conditions on the pain but i guess the problem from our perspective custody out of custody in prison and then subject to probation and then he knew what the terms were i think we might very well face the argument that we had missed when you're destined to i'm not making myself clear we would argument now but you would always be able to argue that if the district judge on the day he your client was released from jail demanded payment of the entire amount or file find him in violation of his  in this instance the sheer amount of the restitution order coupled with the other circumstances doctor that gives kids ages like influenza whatever it's a high amount of restitution because it's a big fraud that's enough for a twenty to fifty who does not have resources who's seventy years old who won't have a job when he gets out if i believe it is sufficiently on beyond that your honor i guess if what the court is saying and i realize this is a this is a unexplored a but if what the court is saying is that the the twenty to fifty five potential twenty to fifty five claim for a restitution order would accrue once the payment schedule is in place and we know how owners it is then i suppose we'll say incarceration because there's no threat to him there's no no risk to him of such such an onerous consequence well i respectfully disagree the risk is he knows he's going to get out of prison in a few years and face a seventy million dollars judgment but i can't tell you and won't know until probation steps in is what is the schedule of payments going to be it please the court daniel trying if the government represent the government at trial in the proceedings below and on appeal the defendant's restitution orders should not have been reduced for two primary reasons one legal one fact legally there is no basis to reduce the defendant's restitution orders pursuant to section twenty two fifty five as this court has held section twenty two fifty five is intended to address the custodial aspects of want us to draw the line in this case you want to i think i think it one can be drawn which is that restitution amounts or fine amounts you know of themselves cannot constitute custody for first for some of the reasons the judge already was was a ticket lady which is what is the amount is any high amount the amount that the constitutes custody this is a this is a circuit where there are routinely restitution awards in the tens and hundreds of millions of if the high restitution amount could could satisfy the limited kaminski exception the limited exception would effectively swallow the and to the point that that was made about well it should twenty twenty fifty five relief depends upon one's wealth and it certainly cannot be the case we're in a situation where you have four defendants of differently of different wells the wealth that the same restitution  amount can be a challenge under twenty fifty five by certain defendants and not challenged by other defendants so it is not it is not the amount of restitution that triggers the entitlement to challenge the restitution amount one's ability to to move to leave the district to leave the country to work in a particular job those are restrictions on one's liberty and those are restrictions that a court may say ok that that is sufficiently severe and sufficiently similar to a custodial requirement that it can be challenging under twenty twenty five but a mere dollar amount of dollar amount that necessarily has to exist in every restitution order so if the defendant comes out of prison not conceding particular because there are other avenues other than twenty to fifty five to address onerous payment terms for for example the restoration statute itself provides provisions for a defend nt at any time to come before a district court and say i have my my financial situation has changed for these defendants who will have been in jail for a considerable period of time i doubt they will have difficulty coming before of am i correct that the payment terms would be fixed at a time when when one could take into consideration you know what the what the sec what the defendant circumstances are at and i mean they they could have been set at sentencing they were not set at sentencing even if they were set at sentencing and seven eight nine years later there's a change there's circumstances change those change conditions can be before the district court judge and the district court judge is empowered to revise a payment schedule to address those change circumstances similarly to the extent this is an issue on supervised release under thirty five eighty three and rule thirty two point one the defendants can seek to seek for the terms of supervised release to be modified such that the payment terms are consistent with their with their with their financial condition ultimately though defendant aren't seeking to challenge the payment terms what the defendants are seeking to challenge is the restitution amount and again that is not something that can be challenge under twenty to fifty five if you raise this with a district court that we did not have raise the point that this argument not only was rejected by the district court the argument about ineffective assistance of counsel was raised in a prior twenty two fifty five proceeding in this court this court has held that dr particular didn't discuss twenty two fifty five is because he decided on the rule thirty three when the judge denied the reduction to sentence on june twenty one he called out the question of loss and you wanted the pawed east to submit briefing on the last because he wanted to know how to handle this post trial finding that four hundred ninety eight is we're entitled to the pension but when you read the opinion  two million and that is the equivalent of a final judgment of thirty six sixty four subdivision oh so this is a straightforward contest about what the amount of the judgment should be original catchment against your client yes q mil correct so when he corrected it to make it forty kill millions you're saying that under rule thirty three not under twenty to fifty five w denied an application to stay that enforcement and said that and docket number seven seventy that there's no reason to wait sixty days until his release to enforce this judgment so he is in custody there was no reason to see is that definitive of appeal ability because this is a straightforward restitution issue under thirty six sixty four and the in custody defendant in a criminal proceeding that is not imposed on the general public to a civil judgment that then he is in custody in the supreme court cases one defendant was on bail i'd like to touch on the custody issue under kaminski and also raise that i don't think it was brought up in oral argument yet dr jamie and once he is released could be subject unlike in a civil case with a judgment over his head with a willful failure to pay which then can also incur incarceration so that is also a different situation than if it was just a civil context to touch on the last comment by opposing counsel as far as what he is describing as a law of the case concerning the plea agreement with dr jamison and whether the finding or in the statement in the summary order in the companion appeal now means that that plea remit provision that waiver can't be excised my argument is the law of the case was in the other appeal that was heard the court did find that it was a knowing and voluntarily entered plea but that was the i e c analysis that the court did in the summary order was in the context of the plea agreement and the guidelines calculation for the intended loss the restitution issue was not the subject of that appeal and the provision for determining restitution as i'm raising discreetly in this appeal is separate and i think that that aspect of  first ruling that came up to the circuit had to do with the sentence the custodial sentence and the guidelines to range the district court retained jurisdiction over the restitution issues so the are a companion appeal address the custodial issue and the guidelines calculation not the actual losses restitution that remains before the district court which now are up before you know thank you thank you very much thank you