before we begin for those of you who have not appeared in our court before just two very brief comments as you make your argument you may safely assume that we've had a chance to review the briefs the record x herbs and in some instances we've had a chance to read the record itself so feel free to go right to the to the heart of your argument as you as you make it second for those of you unfamiliar  lighting system you'll note that there's a clock sort of keeping time and there is a red light or amber light green green means of course you may proceed the amber or yellow is a two minute warning and the red light indicates that your time is up and so we'd be much appreciated if you could bring your remarks to a conclusion when that right goes again you don't have to stop in the middle of a word or a sentence or a thought but if you could bring it to a conclusion at that time we'd be much appreciative with that we'll proceed with the first case us to be gladys and mary oh for to us good morning moran and other cases in the fifth circuit as well as this court this circuit that the sentencing on loss cannot be speculated and it cannot be based on a reasonable determination of specifically in this  case there is no dispute that miss taze was not a novice with health care plan ix we have the four three or four b issue which certainly highlights the fact that they have been in business with these kind of clinics for years and was very well aware of the record is clear of the medicare reduction rate our argument is that this was a clear error on the part of the district court that in pretrial the government made arguments that what the four a four b loss out expected loss would have been i was not transcon trial counsel there was no specific evidence and there was no evidence there were two sinister hearings that was highlighted in the sentencing hearings but there was no said that because the defendants didn't put on any evidence didn't know either what the defendants know knew or didn't know and that distinguishes this case from moran right i mean there was hard evidence and moran i would agree several of the cases including moran some testimony about what the that was put on how about they counsel preserve that preserve that enough because there were multiple arguments including in the pretrial with projected differences and her sentencing had the court actually applied t reduced rate they stopped short of actually coming up with numbers but other than not coming up with actual numbers counsel in every way possible at that time presented the argument that the aggregate loss was way out of  and was not appropriate the district court seemed to be a little inclined to concerned about that and i'm not greedy that was conversation about whether or not she was responsible for that but i would offer to the court that there was so much evidence in this case so it's not disputed evidence in this case about the medicare rate that payments were never made in full throughout and in that the transactions that it was compelling and basically incumbent on the court perhaps to go to have that average in theory hearing and make specific findings of fact about the loss and i would add to my remarks not to get into the four for  argument which on that waving will be addressed perhaps by a co counsel in those conversations when we're talking about including the last beyond the charge kind of we're also talking about  s clinic the one that had the ten million dollars added to it there was no testimony in any type of detail in comparison to admittedly the detail of the way that the clinics had the fraudulent transactions and gables and in that respect the court would not have had the benefit of whether there were kickbacks whether there were what was legitimate what was not legitimate to lump song all of that into the intendant laws for the highlights the the in my opinion the excessive sentence to sentence that's not based on relevant conduct this is not based on cup ability and intended loss i just said to make sure that i have you're right about the medicare reimbursement rate is that your position that sort of now in retrospect of course we know that medicare doesn't always pay full freight and therefore that the defendants couldn't have intended to cause the full loss or that the evidence was so overwhelming before the district court that we can  er that in fact the defendants didn't intend to cause the entire loss the latter ok it's my position that the record was overwhelmingly clear preach trial based on the government's a search and they didn't go into the calculation of course but  doing the trial multiple objections and at sentencing it was discussed and i will concede there was no explicit formula presented there seemed to be an open discussion on the record between the government defense counsel and the court about this morning morning my name is attorney and borghetti and i was not trial counsel i was appointed after mr flaherty has fell out with his trial counsel after receiving his one hundred thirty five months i am not waiving any of my issues in the brief i would like to move directly to role because the fourth issue because i think that is my  believes it's his best shot at receiving a reduction in that sentence this gentleman is quite a large gentleman he's from new jersey originally he played football at rutgers his second marriage was to a to the codefendant gladdest for huertas that was in two thousand and four in two thousand and six missed this gentleman had a background of working security when he goes when he's indicted and he goes to trial the jury trial last about six days and on that six day the jury goes out they deliberate for four hours the next day when they come back they deliberate for two hours and then they have five questions and the court judge buckelew says if she was to guess she would say this is about mr where test about his role because those questions go to basically i won't go through all the questions but is he a willing participant versus a knowing spectator and they choose that he's a knowing spectator he's convicted and it goes to sentencing now when the judge looks at everything she's heard from the evidence from what's presented at the set at the sentencing she starts to think out loud and she says right away i'm thinking giving mr as a minor role and so she says she keeps a list of what he did and she says you know he had such minor participation he his name may have been on the company but he didn't do any of the billing he didn't participate in any of the billing he didn't have any contact with the billing what the judge keeps a list of is that he presented soldiers in pizzas to people he was present at the starbucks meeting that was part of the obstruction he visited people and gave them paperwork he gave  scripts prescription scripts for the drugs to brian kelly the coke coconspirator who was deceased at the time of the trial the difficulty that i'm having is the standard of review by which we have to look at the argument to the extent you say the district court erred in not giving him a minor role reduction under the guidelines we review that is you know for only for clear error which means whether we would agree or disagree you've got to show he that the district court really was wrong and made a mistake here because we are obliged to defer to what we characterize as findings of fact are and this is a fact finding inquiry where is the clear error in the determination that he was not entitled to a minor role reduc essentially in the determination that he was not less culpable let's say than other participants involved in the relevant conduct well clearly even the judge said you're clearly less responsible than gladys but she said you're not clearly less responsible than substantially less culpable excuse me than the average participate right which is wrong in is because of brian kelly the man that's fraud targeted hiv patients bryan kelly died from h i b now he recruited people he dealt with gladys he knew of the scheme my client did not know about the scheme so there i think that she was wrong the judge is clearly wrong because it was not only gladys who she said the court even said was overwhelming the evidence but also brian kelly and then you have the patience that new and directly intended to do this fraud so you have all the patients you have my client who is in the same position as the doctors who were duped thank you very much thank you i place a court reporter partner for the united states the court was very specific and detailed in its factual findings of the sentencing calculations and those findings are fully supported in the record now with respect to the intended los versus actual last sentencing guidelines actually use the example of an insurance company where the claimed amount is less than the insured value as a situation where the loss was unlikely or impossible to occur and you still use intended and the guidelines also talk about in a government that a care fraud case where intended lost is the claim submitted as a court pointed out the district court found precisely that there was no evidence from which it could conclude that the defendants intended another loss yes the objection was preserved no question about that but there wasn't any evidence as to what the actual loss would have been if they  that they had intended less than the claimed amount to the contrary the evidence was that their intention was to bilk medicare for as much as they possibly could and that's what the district court found that's well support in the record the district court expressly rejected this notion of no i should i should just find the actual loss that the companies paid because it said it would have had to base that on the argument that well everybody knows an insurance company never pays what the claim is now there was some testimony about early on from agent i was and i think also from the medicare fraud expert about how medicare claims are paid and that there's a regional factor that goes into how much they pay of a claim but there was absolutely no testimony about how specifically each of the claims would have been handled in this particular case or by which company and i don't think it would even have been possible to calculate of all of the claims certainly was possible to say how much actually was paid because the companies found out what the fraud was but i don't think it would have been possible on this record to come up with some x factor of how much you would reduce the claims down to what was likely to have been paid not in a case like this so setting aside the absence of the testimony in response to ms rights argument that there was overwhelming evidence that sort of everyone knew everyone understands what your response to  that everyone knew or understands about the medicaid reimbursement formula that medicaid doesn't doesn't cover medicare doesn't pay the full freight well in response to a question of mine she said but you know there was sort of it was overwhelmingly clear  that everyone understood that well i think most people in america who have insurance understand that there's a difference between what the hospital bills and what your insurance company pays but that doesn't mean that the defendants intended to get less money and that's what the focus of the guidelines is what did the defendant intend as the law and the intent here was for the defendants to bill medicare out of as as much as they possibly could each and every time oh one of the things that i've found unusual about the last i'm out here if my math us right now i hope you'll tell me if it's wrong is that something like eighty five percent of the loss amount came from the uncharged conduct from g m s yes to g m s was now it's kind of confusing because the amount that we that the court added and to the loss was just the amount that build ok and there were charts that showed that g m s build other insurance companies besides united including some small amount to universal but most of the claims came from united and that was ten and a half million  but that one in the indictment you know it was not that was a company that was located down in south florida in the southern district this is a middle district case and universal you didn't charge a because it was the clinics are out of your jurisdiction that's what they said at sentencing yes that's what the trial process was in the trial prosecutor but that's what she said at sentencing yes is that right or yes i mean it was a it was what the explanation of sentencing was that united was a and south florida company and that all the billing was there but we had venue over universal because they were in st pete so here's what i was thinking about i mean that means that the self or the u s attorney's office could charge that conduct couldn't they says that these defendants have never they were still submitting billings in twenty ten from g m s but it's now twenty seventeen set aside the statute of limitations there could have been a dual prosecution yes generally we don't do that the same participants dennis dean was at ga and asked he recruited bryan kelly who recruited thomas mitchum all three of those individuals carried through to the next clinic morgan and to the next clinic gable and you know i doubt that dennis dean was involved in any of the billing from n g s i don't know specifically but he was probably dead by then but the same participants the same participating doctor they used the same billing company they carried out the same key scheme to the extent of billing the same medical codes some of them dropped off they weren't billing for the infusions or for the side a medic medication as they had been a ga and asked but the same facet point injections the same kind of expensive procedures that were performed more often and without the support of care that would have made them appropriate billings the scheme was identical and the defendant moved the money mario especially mario controlled the accounts that's what they said at sentencing mario was the one who we spoke was responsible for moving the money from one account to another thirty three bank accounts we analyzed ask you in another question i don't i haven't talked about this case with my colleagues and you know we're always looking for the best way to find rado got it right the durch our criteria seem to indicate that the twenty fifteen amendment is not retroactive i don't think that's that they amended is necessarily inconsistent with this court's case law because the moran case that so it mario intended the conduct that constitutes sophisticated means but in any event i mean what she said she said was that i've considered the twenty fifteen amendments yes yes she did were impending at that point she said that she she she i don't know that she actually announced a ruling with respect to whether or not they were retroactive i don't think alvarado had been decided by that point but she certainly did say she considered them and as far as she was concerned if it applied then mario was still responsible for the sophisticated means because he participated in the conduct that was sophisticated and that's not just the cover up that includes the banking and that was substantial he profited huge loss of the intended loss yes yes also that also was moving the money from bank to bank to bank which would have made it impossible for the insurance companies which had paid by direct deposit into their accounts to claw that money back when they uncovered the fraud now with respect to his role  ario is most certainly less culpable than gladys gladys was doing all the billings and she was making all the phone calls i do not agree that he was less culpable than brian kelly brian cowen kelly was a drug district where no question about it but mario participated in that drug distribution mario hand delivered prescriptions mario even got a prescription filled in his name for hydrocodone which marc adams needed to take so that they could continue to sell the oxy cotto on that mark out as was prescribed on top of that this whole drug distribution scheme was something that they figured out they could do to pay kickbacks without any of the cash coming out of their pocket instead it was genius medicare paid the kickback form medicare fill the prescription and then the the patient participants sold it mario made a very lot more money than those patient participants brian kelly it appears was paid about ten thousand dollars at least in checks that we can so even if it was error to conclude that comparing mario with kelly was wrong there were other dean who had ultimately complained to universal and ultimately is the one that broke the case and included bryan kelly who are these other patients knowing mitchum testified you went to the clinic you signed it and you got paid your fifty dollars and he testified that that happened at g n ass and morgan as well as at gables the patients knew kathleen or take a side physical therapy i've had physical therapy those massages that wasn't physical therapy they went for the kickbacks they did not go to these clinics so that they could get any kind of medical treatment in fact  adams complained that he needed a real doctor and it was fine to get this money from the drug kickbacks and it was fine to get the occasional fifty or one hundred or one hundred fifty dollars that they paid whenever they got around to it whenever their insurance claims were paid but what he really ultimately wanted brian kelly to help him find a real doctor because he actually needed his hydrocodone and the other drugs he was taking so none of the billing through any of the three clinics or four clinics s was legitimate and the patient participants all participated in that aspect of the fraud they knew they were getting paid and they knew they weren't getting medical services not real ones so they most certainly were participants and if you the calculations of the five participants and certainly because he was copying notes over from day to day to day the exact same vital signs from one patient to another paid for one patient's day to the next time that patient was treated the court easily could have found that he was a knowing participant he was not charged armando solis the unlicensed doctor who was there when they were building billing for ocampo he also could have counted but you don't even have to get to them if you just count up the patient participants your way over more than five and terms of lattices participation by the way that the court also found that it was a very extensive conspiracy so you don't necessarily have to count noses but with respect to mario's participation and whether or not he was entitled to a minor role he was not less culpable than all the rest he was just a very lot less culpable than glad goes to the initial burden on the government by preponderance of the evidence to present a basis for the loss to the fault to an aggregate aggregate loss because this allegedly not possible obviously has is a burden high price for any to criminal defendant to bear so i understand that argument actually because i support him argument especially with the on charge conduct to include that loss when we have the testimony of a retired former investigator and inside i think missed from universal as the crux of that testimony and later put that loss and to a loss calculation and say well we just can't determine on this record so therefore we're just going to default and threw it all in that is grossly unfair that goes against subjective in ten it goes against a reasonable sentence and i was submit to the court that that should hopefully not be acceptable as a basis for such an extremely higher sentence than would otherwise be if the court just limited the loss to the charge cond relevant conduct and to specific intent or basically to what the particular defendant was was intended to do i think that that does apply in this case as far as loss i think by not having the last calculation address the medicare rate and the overwhelming acknowledgment that that they're subjected to fend that did not expect to get all the payments the record shows that she's getting less consistently that she's always gotten less and she's making inquiries specific phone calls and follow up throughout the conspiracy to build a company and not disappointed when she's receiving less to over look back and say we just can't figure it out if you can't figure it out especially the remote for a four b loss it shouldn't be counted understand that it's difficult but the case law talks about it it's difficult it's a difficult decision but i think there was so much testimony on the record here and it was so clear on the record here that that rate was known and known to all parties that is incumbent on the court to address the fact that the government can't come up thank you thanks very much counsel and i will finally hear from  ask you a sort of a gentleman every question the sort of pick up where your colleague left off why couldn't on this record the district court find that mary jo was not less culpable than the who were knowing patisserie pins in the plot and if indeed she could do that without clear error doesn't that really in the argument regardless of what one says about the relationship between the area when kelly yes your honor it may but i think the court when looking at everything that she looked at couldn't get past that mario was married to gladys and gladys was more culpable and they she jean he were life partners and the other thing that the court couldn't get past the one thing and she said this in the sentencing was that he got the majority of funds in addressing my opposing counsel's argument about him being named on the bank account it's just a formality that people in a the money why is that in significant that seems fairly significant it's significant but i think that's what she based her whole she just couldn't get past that he got this seven hundred thousand dollars wasn't it the seven hundred thousand plus being on the bank account plus being the what was it the vice president of gables formally plus participating in the obstruction i mean it was more than just the seven hundred thousand right yes it was more than the seven hundred thousand and part of it i think besides what your assuming we just look at the seven hundred thousand why couldn't the district court say without committing a clear error that the very payments were so disparate as between what he received and what the patients received that he was simply not less culpable than most of the other participants i e the patients without saying one word about kelly well just receiving money i getting getting a share ok thank you very much i note this right mr berg area that you were court appointed we very much appreciate you taking on the burden of representing your clients at the request of the court we will proceed to the next case which is