nucci who is here on appeal after pleading guilty without a plea agreement two counts of mail fraud money laundering and making a false statement to a federal officer that being that he would give up his salary to save the country company i will say five minutes or rebuttal some significant dates in the case are that he pled guilty on august twenty third in the pre sentence investigation was finished on december seventeenth on march fourth he filed his objections to the p s i i and complained in them that he had needed additional information on which to determine the grounds for the objection the defendant of the p s i i was filed on march twenty sixth for five days before sentencing the government sentencing memorandum the night before sentencing and he was sentenced on march thirty first he is before the court of healing claiming that he ought to be entitled to a re considerations in setting the prison time and the government recognize that in their night before sentencing replied to the death that sentencing recommendations so we are here complaining that all aspects of the senate's ought to be reversed and the case set back for a full recent thing in the trial court i hope what is the standard of review that we used in looking at this and there was a big list of all sorts of use of the credit card maybe some apply and some don't how do we review such a huge list of expenses and decide which ones maybe were losses and which ones were maybe  legitimate expenses certainly i would not think it's the duty of the court of appeals to go through a record line by line and do explain the counting what happened here was the public defender representing complaining that he did not know before he got the sentencing member that the pre sentence report what numbers would be used for restitution and he wanted to know where they got the numbers that they were relying on sentencing hearing that the company never did an audit so that the report writer was misled by the facts when the report writer in the bend them stated there had been an audit as to the numbers that were used what mr and to knew she saw in the discovery provided was a chart showing three million sixty one thousand dollars and cents in lost and then in a pretty similar support a number two million nine hundred eighteen thousand two hundred sixty one he asked to learn where the probation office got the numbers there were times he complained at sentencing that he never got any response to that until the night before the sentencing at the sentencing the judge said well we may be committing reversible error if we don't give you more time all he asked for was time he objected and saying on his objections to the present report that on page one alone of the fifty three pages of lines on page one alone he had done a five hundred fifty three specific items that were on their face appeared to be legitimate travel entertainment all he asked for was that he have the opportunity to write and examine the numbers now would he have some idea what numbers the government was a long long they took me to recesses during the day and he commented and before the first recess that the government had referred to a f b i three zero two report they didn't even have he commented that all he wanted was an opportunity to write he said now that i know what numbers they're using they may or may not support the last finding i don't know but on behalf of mr ingenuity our objection is that we have been denied an opportunity to write and consider so the defense at sentencing was seeking to take on and carry its burden of proof to ciro what amounts were correct and not materially wrong and supported facts journal evidence that was the relief that the government that the court said might be error to refuse but the government ultimately persuaded the court to refuse this is your information you need now do you have everything you need or something else you need to go through line by line and take it in or out i'm not did not represent him in the trial court and i did take on the case after he was sentenced and i took a line by line quickly through the exhibit that they had finally agreed was going to be the basis i found a consulting sea paid to the head of the company charged as theft by mr ranta new cheap i found that sometimes when he took money out of the bank he read deposited it back into the bank so i'm not ready today to give you the figure but the public defender said at sentencing we believe that with an opportunity the true think there would be seven hundred thousand to a million under the one b one guidelines that would be an eight level reduction and a corresponding reduction in the amount of prison time and the restitution of not that's my question what additional information if any is necessary for that calculation to be made my expectation is that if i could get the full files of the pulp offenders office in a reasonable amount of time then we can make that calculation and offer it to the court house from from the federal defender york today that there's a concrete number that would make a difference usually we require someone to say on appeal that you can actually show us harm that would sit back the numbers going to beach would actually make a difference in the guideline can't just speculate that it might i would ensure that the concrete offer proffered to the trial court by the pope defender is in the record seven hundred thousand to a million i have not understood it was my duty to actually do an accounting that they might give up one hundred thousand to two hundred thousand dollars and the court made the finding both on restitution and punishment saying well i'm not convinced today now that you've shown me that there's four hundred thousand dollars wrong but the opinions of this court consistently process for both they were different numbers no they used the same numbers and the pre sets recommendation report which is a part of the record says we take into consideration the loss and the private conduct of the defendant and the facts of the case in making the following recommendation sixteen months in prison somewhat where in the middle of the guidelines and a restitution figure of x so they took consider them both as though it were a unit of fact to be so is it a matter of the public defender not having had sufficient time to fully object to the amount and we don't know what is a or correct amount and it doesn't seem like there was a proper objection that we can review and say the judge was wrong in the figure the public defender just said look at the first page there are some problems here but didn't go into details to show the court which were the  inappropriate amounts so so what are we to do did the public defender waive these objections by not bringing them to the court's attention are you saying that the public defender didn't have an opportunity to review these figures anough to make a proper objection he clearly did not waive the objection he asked for time the trial court said if i don't give you more time it may be reversible error at the end he even said even now i believe they're showing me records for the first time today so in effect he said i am not ready because they haven't given me all the material and then the judge to the other recess and the government lawyer said your honor he stands by his objections and we'd like to put mr sutured on and what they came with from the night before was a new theory the new theory being that because there were not expense reimbursement forms everything charged on the credit card or debit card was fraud and that was the greatest portion of the expenditures now that siri didn't exist until the night before sentencing it's not in a written policy of the government anywhere keep in mind that as a chief executive officer the purse person approving these imaginary expense reports would be mr enter knew she could approving his own expense reports and while i think they probably should be kept in the running of a good company this concept came out of thin air in the hours before sentencing in the late memorandum filed by the government then the miss sebring in preparing the exhibit which was the the permanent choice you have in your record excerpt said i'm looked down and if i didn't recognize a company i looked it up in google and i put all expenditures were fraud because there were no expense reports this court has been very clear and the trial court was clear that a failure to follow a procedure does not establish a loss amount the trial judge said we're not going to find the restitution number based on a buy lation a procedure it must be actual last and that is what the prior decisions of this court say that when you're get getting to restitution you should be fairly specific and the courts should make an estimate of a loss amount for purposes of restitution but that was not the new sentencing guidelines there had to be of almost a two million dollars discrepancy to get to the lower guidelines and what we have in the record is here's this expansion this expense and this expense and gosh it's it's these are wrong so there might be other errors in there which amounted to only about one hundred to only but i think it was one hundred thousand dollars which is not nearly close enough to get you to a lower guideline so how is this court supposed to handle that where there is nothing in the that shows it was a significant discrepancy in the amount of the court accepted these answers in this particular case for a guideline the figures four hundred thousand not two million second the government offered to concede a hundred thousand to two hundred thousand third the floor hundred excess figure four hundred two hundred thousand excess figure was a factor in guiding the probation officer to its recommendation according to the pla language of its recommendation finally the pro but the public defender saying they didn't give me all the materials and still today in fact it's in the record where he says i don't know that i have all the materials that probation has they're showing me some new things right now fairness requires time now this is not a case where anyone's been dilatory it's a plea to the indictment there's no long postponements there's no harm to be done but if th referred back to the probation officer recalculation specific beliefs how can i figure out what their correct amount should be to take it quite seriously i think it's the job of the lawyers to be burden on the government to demonstrate the amount of the victim's loss a sentence in court may shift the burden of demonstrating such matters as the court deems appropriate to the party designated by the court as just a few quarters so i think this is not a punitive for the judge to be a judge to tell the lawyers what he expects them to do and have a proper hearing i guess here's my question your clients are same could have access to this is had some time on its hands to look through it as he came up and said here here's my calculation these were my expenses informal conversation but it's not of record your client since then gone since that hearing gone back and said he's been in the federal penitentiary he said shortly calling that hearing i thought people had access to their records to look through it to the point in doing a full accounting is of course to follow the dictates of the delhi on decision that i was just reading from the side in the briefs to prepare to present a case to a court main place the court the issue before this court is whether the district court abused its discretion in turn determining the last amount for purposes of the eighteen level enhanced meant under to be one point one b one j last determination it would be whether he abused his discretion in concluding that the the last male was within the first old amount for the guidelines  between the loss amount that was in the percentage report the total loss amount that was was found by the probation officer and the expenses listed in in financial an see brings report actually there is no discrepancy the only discrepancy was contained the three million dollars was contained on her list of yearly expenses and her list included the two thousand and six expenses which were outside the temporal scope of these this has embezzlement scheme so when the actual fifty four page report itself only included the two thousand and seven to two thousand and twelve expenses paid by on two new ci for using patriotic funds for his own proposition when you the loss expenses for the two thousand and seven through two thousand years the amount listed the amount of expenses found by i sebring actually equal the last determination made by actual loss directly and proximately caused by the offense of conviction including included in same in agent's now scuse me and c brings expense report our six line item in trees that were designated under the category of cash but under the transaction code deposits so for purposes of determining whether these are the seven thousand and seventy thousand nine hundred dollars are actual lost to patriot that subject terminations that should be made by the district court which for that one limited purpose for the for the loss of the loss amount for the the the last amount determination made by the district court for the sentencing guideline and hands meant and remaining laws calculated in the the the by the probation officer for purposes of restitution that those are fully supported by the factual determinations are fully supported by the i have a full evidence or basis in the record it's only only those six line item deposit introduce that that the determination whether are we talking about just the first page of a didn't we i thought there was some situation where he didn't go to the whole thing but the public defender is that there's all sorts of issues and problems here and here some on the first page alone that i think should not be counted did we did sebring determine which expenses were sebring determine which expenses were personal expenses and which expenses were legitimate business expenses and she testified at trial as at syncing as tooth her her methodology for creating the court and if i could just go through this looking at it what she did was she her reflects a well thought out and precise message method excuse me for distinguishing and separating out the unauthorized transfer withdrawals a patriot funds for his own purposes from a legitimate business expenses which she did was she conducted a forensic analysis of the patriot bank accounts and on to new cheese personal bank accounts in his american express records and in that process what she her process involved coordinating with the case agent and the intelligence analyst and she testified that this was a about a six month process in that was she also testified that she had obtained and reviewed the records from hsu kurt who was the managing partner of eagle stone my point is if you say we're going to have that there's some the risk to titian for the year so i'm only talking about for purpose of the restitution for the last determination as judge prado noted that there is a the threshold to take it up to the the eighteen level and handsome and is two point five million and if you take out the seventy thousand and nine hundred dollars from the two thousand two point nine million you are still way above the threshold amount so the question going back to the question is the did the district court reasonably infer that the expenses listed on her her reviewed the records from from hsu curt and that the public defender have sufficient time or when did they get this report and these calculations  ingenue chief from patriot funds year before sentencing they had for over a year we had an open basically an open well what did that report show amount was i'm sorry what were the amounts in that repor the amounts in the report were the two point nine million calculated by the probation officer for the years within the temporal scope of the an african should i'm confused i thought you said they c brings report a year before sentencing sebring report was was prepared a year before syncing it was a a an investigative report that was done and they got it during the discovery paid from by on to meucci from the patriot bank accounts was the two point nine million at at the the answer your question i'd let's just be as clear as possible he knew he was given and told the government is contending with the loss a man is to put not nine million dollars he knew that for one year before sentencing and he had the backup information as to how you got that number one year before syncing yes or no he had the backup information now the question is did he know that we were going to say that this is lost for purposes of restitution he what what it included was the last determination made by by the probation officer the probation officer apprised him five days before sentencing in the p that that the the factual basis of the evidence three basis for the last calculation was see brings fifty four page report which he had that five days before the probation officers confirmation that that report was the evidentiary basis for the last determination that was included in paragraph fifteen of the p so the at sentencing at sentencing the question before the district court was was whether whether c pings expense report provided a sufficient evidence tree basis for the two point nine million reflect found by the probation officer as last for purposes of as loss for purposes of the guidelines and has meant and loss for purpose of restitution but what sebring testified was that she took a very very conservative approach in preparing this report that she should exclude it any and all business expenses considered are determined to be legitimate business expenses which included judy diamond associates and said you thought that was a jewelry store well what happened was is that that on cross examination the defense of course counsel igs hand the opportunity to question sebring about any any expense item on the fifty four page report what he asked her was what about what about diamond services and she testified that well it looks like a a jury store essentially but she she tempered that with you know it's it's been a while since i've i i researched through google to determine what some items were and it's been it's been a while since i've looked at this this was one and this was shipard about when yeah i did my initial research to determine what the source was i would put together a list of five or six at a time and i would contact him and we would go over them heard as a result of that she would make a determination whether basically verifying whether it's a legitimate business expense so she gets his client she contacts him she gets his input and then the question becomes it's when is the fight over what is the final what is her final assessment one of the things that she considered was that is that patriot you know stone and patriot had a very strict business policy that you had to submit expense reports for any legitimate business any legitimate business expens was he objected based on wait a minute i see two point nine million in the as a last determination made by the the probation officer and i see the three million listed on the report and i want to know i don't i need more time to figure out what this discrepancy is and what the what judge ellison did was say do you want to hear you want to hear and i'll give you time and the the colloquy between defense counsel and the court was that that he never requested a hearing that he thought that that the the last determination the evidence or a basis for the last determination could be based on subrings report at that point at one point going back and forth with the government did was tell the court that we can put on the agent to verify her method and and in preparing the report and so she testified and at that point the the defense counsel i mean the district court for the defense counsel basically unlimited and limited opportunity on cross examination to go through any of the line items and what she did what defense counsel did was mention only the three light items that were were listed in her his objections and that was the age b c e and the say the g i mean the financial analyst and did not avail himself of that opportunity as to as to what happened after the hearing at that point after the testimony was co what were the legitimate business expenses and which were not was and to nucci and he presented no evidence he had sufficient opportunity to to make are presented no evidence presented no witness testimony if regarding any for example regarding his his mr mallets argument that that there was a line entry and one thousand dollar line entry to shukra requesting a consultation fee that was made for the first time on appeal that was never presented to the district court of that argument could have been made to the it the first questions could  asked and the other thing one of the other points that i would like to make is that what judge nelson dead was was asked to new chief personally you tell me tell me give me a number tell what me what give me a number for the business expenses that you think are legitimate businesses i mean that the expenses listed on on c b s report that you think are to to go through and present evidence and to establish that there were legitimate business expenses and he did not avail himself of that opportunity only on wrist to sion for the the the limited in my view the limited purpose of determining whether the six line items that were in ded on supremes expense report as deposits were represented actual loss to two patriot based on factual determination made by the the the district court and our position is that is that he made a a determination that that the lo expense account report it was deemed to be in problem there was evidence testify that if there was there was that the policy was that he had to present expense reports to get reimbursed and worked sweeping testified was that she requested expense reports from  team and patriot and she was provided no no expense reports to to basically contradict her her and now says that these expenses were not legitimate business expens allows everything to be disclosed in the ordinary situation and i feel that hearing really since preemptively inconsistently with his general tenor for example he allows the sentencing recommendation of probation to be disclosed to the defense and in this sentencing recommendation the probation officer balances in both the loss and malcolm the prior criminal record in the guideline range in determining to recommend a sixty month sentence and the restitution figure j adopts in toto the recommendation of the probation office so we feel this falls within the united states versus beecham of which is cited in the government's brief forty five where it's unclear restitution was not balanced in determining the prison term and so in the big from case the enjoy writing i believe says that in that case in the situation would reverse for all and offer that to the suggestion that there would be a partial reversal as to what the defense knew and when it knew it the record is clear all ask you be patient with me while i read from the transcript in the district court about all the discovery the it recover the government just put in some exhibits i had these before but as i said my response it wasn't clear to made these were the things that probation was going off of it also appears the saying it's not even clear to me what the basis for these losses is because they don't seem to match the chart and in response i got nothing identifying the child now they've actually gone to the trouble of putting something in the record i know with as zeros i can actually it was well stated by the government on behalf of the defense that the public defender mr gallagher stands by his objection also late we learned not that as stated in the supplement to the probation officer recommendation their report was based their recommendation was based not only on the government chart the i looked at google to see if it was a business expense chart but also during an audit prepared by the company but at the evidentiary hearing it is clearly established by the judge's questions mr suture the owner of the company you didn't the books were never audited mr sutured no sir so it is not based on a reliable chart because there was a bad method that we have this two point nine million it's two point nine million in restitution which he should not have to pay because it hasn't been proved it's with interest under the forfeiture law he owes a civil and criminal for for sure for an equal amount so mr engine which is now upside down for  five point nine million for plus interest when he is released from prison and has a chance to start his life over we respectfully ask that the court in being consistent with the precedents of this court on these economic crimes cases give mr anthony a right to make his case