these beneficiaries there was absolutely no testimony presented regarding how much lost was purportedly cajuns by the billing practices of mr goble saying in his face this is a case that was tried just before blakeley was decided so the parties were not going to trial focusing on questions of do we need to present to the jury evidence regarding amount of l it was and then the government says in response to the argument that i presented in my opening brief well the defense had ample opportunity at this trial to cross examine our financial expert contrary theory of what how is to be downplayed i didn't go into trial thinking lost was even at issue the amount of lost right something that would have been determined in the preview likely world by the and now the post for world by the district judge at sentencing it was not something we focused on the government in it's just that we went to trial on the second superseding indictment they alleged you know the charts approximate last figures hundred forty two dollars and fifteen cents as a loss for going to fish theory x and then another amount for the beneficiary why i contend that their figures are entirely unreliable their figures in the record before the court here are multiple figures just that the government came up with as this case went through its various phases and the government's accounting figures repeatedly changed but it was your client's billings that were i do all of the billing i mean there was that was a big issue with this trial we had our defense was not that some overbilling did not occur in this case we beyond a reasonable doubt that there was some unusual bookkeeping system well that i mean that's what the jury thought the jury found convicted him of killing a fraud so i'm not here to i'm not making a sufficien here a sufficient reliable basis upon which to fix the loss amount in this case that approximately one hundred sixty thousand dollars the probation officer within this case was litigated extensively after the p s r was submitted there was extensive briefing regarding whether there was an accurate basis upon which for the court to determine last i but you would what you would what the court would would be asked to find did not i didn't offer any type of affidavit no i submitted i went through the procedure required by the c j act which was to court appointed counsel in the case judge a request the provision that you authorize me to incur the expenses associated with the appointment of a county expert i found an accounting expert i provided his c v to the court and asked the court to allow that expert to become involved because i'm not competent to delve into these extremely complex claims as to each one of these beneficiaries and i've provided in the excerpts of record particularly in the supplemental excerpts of record i've provided these flow charts which show the flames in this case going all over the place these are dual eligible beneficiaries where mr vogel saying is submitting claims that have multiple components they are claims where he would submit a claim to medicare medicare would review the claim that five or six different levels deny deny deny and then ultimately approve it then medic hal would have to get involved in the processing of these plans so my guess in terms of the narrow issue is was there enough evidence before this court for this for the district court  and the government contends that well this is a straightforward easy case in which to determine lost that was the position that the a u s a took at the district court level and that's the position that the government takes now and i believe that if the intricacies of the distilling process are understood and if you even if just looking at the different positions the government has taken does it weaken your position that when we look at the record we see the government needs to be conducted in this case to resolve the last gasp if we understand your position you want to talk about your other issues very well you are the as to the exclusion of defense evidence in this case i of one of the claims concerning one of the beneficiaries at issue in this case the government's position is well it's just speculative as to whether if you were able to share with this jury she have gotten her hands on some of his flames would she have had the motivation where the defense just cannot explain to you some of these billing irregularities and that was what i said in opening statement there are going to be claims before you ladies and gentlemen of the jury which are clearly irregular and which resulted in overpayment the also claims that result were irregular and resulted in underpayment here we have a possible explanation as to how something may have occurred we have somebody committing fraud with somebody else so therefore it's possible that that person committed fraud here even though mr holmes committed the homicide he wanted to introduce evidence that i have an alternative theory as to how this may have occurred let me present the evidence and that's what i have here is you know the government has evidence  client committed billing fraud in connection with approximately twenty of thousands and thousands of claims i have an alternate explanation it does not definitively establish that this g d s employee is responsible for everything if i grant the court that there is the degree of speculation required here i do not have the in the hands on evidence that she monkeyed with these claims it's just that i don't know if you have a maybe the analogy would be in the enron arthur andersen situation where enron tried to blame a lot of the problems with their books on our granderson and i'm sure that they wouldn't be able to completely a scheme which is independent of what the government characterizes as my client skeen she's making money for herself but basically giving bribe by other employees who were involved with her in her scheme and i we the court thomas flynn for the united states most of the defendants arguments from the government's point of view only have merit if you assume that the defendant wasn't convicted i think this is the point perhaps a judge ferris was trying to make as a defendant's attorney for instance just said he didn't do the billing well the fact is that this jury convicted him of double billing that was the government's theory was found guilty on all of those so all of these charts and all of  complicated regulations that the that apartment as to me that medicare and medicare have those may have had something to do with whether or not he was guilty but once he's found guilty there's only one question he was paid twice how much were those payments and to this day the defendant has not given any information despite the fact that there was a years gap between the trial in the sentencing when he could have gotten this information together is even more time before this of peel there is not one factual assertion in the government's chart that lists how these losses were calculated that he's capable of not only of challenging the fact but even what theory would make them wrong i'm not aware of how that works here the fact is that the government's chart if you just read the testimony of the expert who compiled it is just a list of the payments that were made you can identify the item you can identify the price he was paid twice you compare the two and you can see what things he was paid twice for it doesn't matter how complicated the process was to get there he was paid twice and the government thinks that the amount of the loss is the amount that is paid twice for and it's pretty much as simple as that all the rest of the stuff has nothing to do with sentencing just a guilt and he has yet to even a  a liability you say somebody else did this crime and in all of the cases that the defendant cites there is somebody else who it points to and he says i didn't do this this person did and here's how he could have done it there is no such person in this case there was no statement made or that hilda robust might have been monkeying with the books or something she didn't her crime was failing to report other people  s who were doing a crime that had absolutely no relation to this film they were taking claims that were late and in order to help someone who i believe was paying them off were putting those claims in a basket that said there not so that they could get paid but not a double billing case his only contact with hilda robles came after he was alerted to the fact that he was under investigation he then started to try to clean up his act he tried calling the people that he ts would a supervisor and just a couple of dates here he contacted her i believe on october the twelfth of two thousand and one the claim he contacted her about which was the dickerson plane was paid a month earlier on september tenth two thousand and one so that was already over whatever fraud had been committed had been committed before he even talked to her the i think the defense tries to make a big deal out of the fact that there are cases in this court the  label for instance that talk about well it's ok if it's speculative i think it's important to realize what it is that can be speculative it can be speculative it can be speculative that the scenario the defendant is pro someone who might have done it he all he has is someone who and completely unrelated set of cases took money to not report somebody for what they were doing ok thank you that the person who testified concerning what the government now looks to as the basis for satisfying their burden of proof and it is their burden of proof on this last issue was a auditor in the united states attorney's office at trial referred to him as an auditor the government objected saying he didn't do an audit in this case this auditor or financial expert acknowledged during his testimony there is in the calculations for the last that we have on a spreadsheet that we presented to the jury there's an error in there and i don't know what it is and i don't know whether it affects the l life and i don't know whether it affects the last amount down and that was not a big deal at the time of trial because this was before blakely so we weren't neither i nor my opposing counsel from the government were focused on do we need to address this last issue with perception at the time the trial then after this after the verdict but before sentencing blakeley gets decided there was a long delay in book or even gets decided with respect to the last issue i'm not really arguing guilt or innocence my position is that this is an extremely complex accounting calculation that the government varies the burden of proof on and the government doesn't get to satisfy that burden of proof by simply making an accusation in an indictment and saying x amount of dollars for victim one x amount of dollars for victim two and that's it that's all that's been done here there was there  i would get an expert to look to delve into these records and i found you could if kind of come out that it was greater than your it that i admit that and it could have also come out that it was dramatically less acknowledged that there is an error in its arithmetic which we don't know what it is and which way that error works out that's a page is eleven forty three through eleven forty five of my crop of the excerpts of record which is my cross examination of  and the government has not discharged that person the government hasn't at any time in this case tried to introduce evidence of last they've had no occasion to because  regardless of whether there's anything say it's contested because i contested it at every step close to verdict that was made available to me i contested it in my informal objections to the draft p s r i contested it in my motion to correct a request of an evidentiary hearing i requested the say ok assuming the guilty verdict to be accurate here here is the amount of overbilling that actually occurred here and your honor there were repeated instances where the administrative