sitting of our court think the attorneys for their cooperation with the remote arguments and all the technological arrangements that require before we get into the st case i want to note this is a sad day for the th circuit and one of the true giants of our court judge tom reveal he passed away last night and he had no unparalleled record of judicial service to this country over fifty years including over thirty years on our court also a long tenure on judge willetts former core of the supreme court of texas and initially in the sixty's serving as a trial judge in austin and that fifty years of judicial service was not judge rea contribution to the united states he served in war two in the war against fast fascism in the navy he was on the destroyer it was part of the escort when president roosevelt traveled to  three issues discussed and mr martinez is reply proof st whether there was a fatal variance between count one of the superseding indictment charging conspiracy and the prosecution's proof of a conspiracy  want to briefly address a dispute between mr martinez and the government in our briefs concerning the government's evidence that mr martinez is a legend role in mr mendez's conspiracy the st of the two conspiracies that be c his conspiracy in full around march of two thousand and ten when mr martinez angry about a financial matter tried to walk out mr mendus at that point they reached an agreement that mr martin according to that mr martinez would run  one of multiple war were under mendoza's control and did so for three or four months before they split mr martinez according to mendez merely give him a favor of years before in waiting his name and his good credit to enable mendis who had was in bankruptcy to be able to get a telemarketing bond business bank account in a credit card merchant account but that martina's played no other role at that point and remember that the evidence showed  began with a legitimate telemarketing operation it did not turn fraudulent into mid two thousand and nine when some of his telemarketers started pitching heat as they referred to it so it was not intell quote some time two thousand sometime in two thousand quote according to mendez that mr martinez became criminal now despite this testimony the government contends that mr martinez knowingly joined a criminal operation that made us led much earlier in the fall of two thousand and n referring to his role with mr martinez later in two thousand and ten in fact mr chosen did not even join mendez's operation by his own testimony and is admitted in the government's brief until january two thousand and ten so mr chilton could not be the one to provide information about when mr martinez played any role with mr pitt mr mendez is testimony is probative of that now all guess the various issues mendez's testimony when separate company resorts resorts management services or are and it clearly shows there are two alleged conspiracies the st conspiracy was the one led by mendis which primarily use the company name resorts condos  purposes these were not mutually dependent conspiracies these were competitors they were two distinct conspiracies and that was not how it was charged in count one of the indictment and for that reason there's a very it's a variance of your knowledge or some overlap in the participants it's the same modus operandi or scheme i understand they're different companies the money's going to different people you say their competitors but i mean most isn't it just arguable whether there are one or two conspiracies in which case we have to defer to the jury's determination that there was a single conspiracy as charged i don't think so your honor if you parse the evidence very carefully you're going to see there was a break in mid two thousand and ten at that point men and this is the language the government used in its brief they split mendez and martin martinez split they were competitors they were competing against each other their the most important element for purposes of deciding whether there were two conspiracies that your client was a number of them well the jury may have been able to find a found that he was a member of one or the other but the problem is a variance analysis requires the court so not simply decide whether a rational jury could have convicted him of one or both of the conspiracies that were much together rather this court's president president tony opposite requires this court to end that open and ally's the issue according to traditional and severance principles so in addition to whether he is a rational jury could have convicted him of one or both of the conspiracies the court has to ask whether there would be reversible error of course this is all hypothetical there but there is just one jury might use the evidence of one of the crimes to infer criminal disposition to commit the other crime charged that's a basis for a sentence so you need to remember that the evidence was hardly overwhelming against mr my ts looking at each individual commit fraud so if there were two separate the conspiracy didn't your cause a and b and gagan both well that's what the government's evidence would argue the government's contend it but i'm what i'm saying is regardless of that the issue for various purposes for code got this person is whether the government can prove beyond a reasonable doubt that the variance did not harm mr martinez and my point i'm is all about and this court's rule fourteen separate serious prudence which gets brought into the analysis says you can't have to taste it to charges brought together when there is a danger of the crew of the jury finding criminal disposition of one or the the two and that's precisely what we have here if this would have it would have been tried separately as two separate conspiracy charges at two separate trials mr martinez would have had a much better shot at winning but when you  evidence claim that's how this is been developed over the decades these separate issue only comes into play as part of the horman house of prejudice and it's so there was not a motion for a severance because there was one count in the indictment alleging two different will alleging one conspiracy but what she got to try her jeopardy attaches you see that it's actually two distinct conspiracies that's what coding office is concerned with and so that could only severance issue role is whether he would have been entitle to a in and they dealt with them with telephone river through e mails or whatever but none of them were mr martinez none of whom there was no evidence that they dealt with mr martin as if he's going to be convicted of this since going to stand up an  rosemont or not be able to do that rosemont says for aiding and abetting purposes the government has to show the defendants intent to aid and abet regarding each specific crime which i don't remember is when these different complain those crimes those individual acts that were part of the scheme tell me well in that well i would submit your home in that because what rosemont says it says that the defendant has to intend to to aid in a bat individual specific crimes curiously liable for every single thing every other telemarketer does it any point to absolutely pete and spears that gets into that that's the equivalent of pinkerton law there is clearly a difference between papers and liability and aiding and abetting liability and the term that i'm really focusing on to rosemont is they've used the term specific crime so there is no proof in this case that mr martinez aided and abetted any of these on a different people regarding the specific complaints whether or not they can prove the scheme is not enough they've also got to prove aiding and abetting an intent to aiding the bed each of the actual acts of mailing or using interstate wires that you begin to prove that this case so there is insufficient evidence as well of had just stacked the sentences but it could have imposed one day if it but that was all that was warranted for this additional term so i think just the segues into the government sort of argument out harmlessness me doesn't the fact of the judge gave six months when he doesn't have to show that he wanted to impose that six months whether as a consecutive term or just on top of the underlying fraud count which is i mean you're saying you should just expand the highest reach of the fraud counts correct so you have to in analyzing harm here in a court the government has the burden this prove that what i'm saying is true when a court believes i've got this separate command from congress that tells me to stack some extra time to punish the defendant for doing whatever the particular conduct is one has to assume a descriptor which is going to think well that means something more than just one day to write what's the point of having a man meant consecutive statute is just going to be one day so the that's not the language that concerns me it's that the language says it must impose a time up to five years in addition to any time but the underlying offense of when doesn't a time up to five years in addition to this other i mean doesn't that's not contemplate to charmes not if you read the antecedent language shall be imprisoned as the leading obviously the leading clause if the antecedent language is shall be in prison and all it means this up to five years he in addition to is the government has interpreted the statute in another twenty three six case precisely as we are in perri at the very least that's the thank you counsel here for a mom mr leon's counsel and that's mr spoke for it but what the court's going to know is that the district court d in apply the seven factors from the note of the sentencing guideline and in doing so judge lindsey decided that the answer was no as to recruitment of accomplices no as claimed right to any larger share of the crime and no as to any degree of control and authority exercised over others the court didn't decide that each factor of the nature of excuse me manager supervisor cannot be met that mr warren is simply there to provide technical expertise he did not recruit others he exercised no control now with respect to control over property and assets some of the the data base to such a degree that it might have risen to the level of the satisfied seven factors are contingent is it not that once again what mr warner did here is he designed a customer this database that he had done previously independent businessman and it had been dying to support share telemarketing businesses but not to support any type of timeshare fraud as was alleged in this case and in fact there was no testimony from the record in him in a position where the government has argued that he was some kind of common entity or a link bringing together the different actors and in our contention is that that is just absolutely not accurate we would probably contend that that's not one hundred percent accurate with respect to discretion and control over the phone system he designed the day at a basis he did not have control of the ability to shut them down he did not have there is no one that affects his stand trial rights as he fails to show that viewing the evidence in the light most favorable to the government no reasonable jury could have found a single conspiracy this court considers three factors the existence of a common goal the nature of the scheme and overlapping martina's concedes the nd and rd of those factors are satisfied here and he disputes only the st factor the existence of a common goal regarding that there is ample evidence to show that there was a common goal between martinez and his an angel ina smith both early in the conspiracy when they worked with martinez i met with mendez and later when they continued the scheme at martinez's company r m s they shared the common goal of driving personal gain through a scheme to defraud timeshare owners now martinez argues that the common goal is not shown here because his company are a mess competed with menaces company after the two men parted ways but there are multiple problems with this argument st he's comparing the wrong entities he claims that the chimp conspiracies are the earlier phase when he worked with mendez and the later phase when he branched off from mendez so those two phases are what this court compares in a determining whether or not there was a common goal nd he relies on in opposite  competitors because they sold the same drug in the same area in mitchell or they were in the same scheme in the same geographic area in beecham this court has nonetheless still found the existence of a common goal and even if the cited double jeopardy authority that he cites could apply to the variance context martinez cites no evidence that his company and martinez company competed after they parted ways under marching his own reading a bit they collaborated martina's read speech him to say that after the original in that case parted ways and continued this scheme in their own separate companies they nonetheless still collaborated but he doesn't explain how they did so if dividing customers up upon parting ways and continuing the scheme in your own respective companies counts as collaboration  that under this reasoning mendez and martinez also collaborated because they too continued the scheme in their respective companies and they used the same cut and martinez used the same customers from his time with mendez in his r m s magazine this court the common goal factor very broadly and under its authority it was clearly satisfied here because viewing the evidence in the light most favorable to the government a reasonable jury could have easily found a single conspiracy beyond a reasonable doubt martine then it's multiple conspiracies do you have to prove all three or if they're mixed with what's the result well there is no the already saying that any factor is dispositive if you weigh them and you figure out can a reasonable jury have found that there was a single conspiracy and weighing them but as far as whether or not they are competitors there's no evidence to show that they were in fact the evidence suggests that they were just operating separately but that a lot of these customers were schemed multiple times by multiple companies or just because they had been scammed by one company doesn't mean that another company can go after the same victim but even assuming variance martinez fails to show reversible error because he fails to show that it affected his substantial rights now despite the fact that he argues that is the government's burden to shoot prejudice here under this court's precedent it places the burden squarely on his shoulders as his court held in wagner where the indictment alleges a single conspiracy and the evidence to stand stablish is the defendant's participation and at least one conspiracy the defendant substantial rights or if the defendant can establish versatile air under general principles of joinder and severance in mitchell and in rigorous and this court has placed the burden on the defendant prejudiced now this can be understood as an aspect of variance law or just like it's cousin jointer in severance in those cases the defendant bears the burden of showing prejudice or can also be understood as an exception to the general rule discussed in falkner that where the government proves multiple conspiracies and the defendants involved involvement in at least one of them there is no bearing it's affecting the defendant substantial rights unless that in the exception recognized by the defendant can show reversible  and that burden is that he must show specific and compelling prejudice that resulted in an unfair trial and from which the jury's instructions fail to protect him this he cannot do as this court indicated in richardson and simpson a defend cannot claim of prejudice from guilt transference where he himself was involved in all of the conspiracy is proved and as this court held in mitchell any risk of prejudiced was minimized by this court's instruction to the jury that it must acquit if it did not find the defendant was guilty of the conspiracy charge and the of some other conspiracy now martinez speculates that he was prejudiced because if he had been trying for only one of the conspiracies he would have had the jury may not have convicted  but as this court held in poseidon rios a better chance of acquittal does not justify a severance and his mere speculation of a better shot of acquittal is based on a number of unfounded assumptions even if the conspiracy count had been severed into two and even if those counts had been severed into true trials he fails to show that the evidence of one conspiracy would have not come in as rule for of or be evidence of his probative of his knowledge intent and planning in the trial of another indeed knowledge was the main disputed issue at trial as martinez argued that he did not know that the companies he was involved in were running the heat page as such to the extent the jury's considered a nd conspiracy at all they considered it in only to determine martinez knowledge which would have been permissible even in separate trials a separate counts moreover even if you segregate the evidence and consider only the evidence regarding martinez involvement with mendez at resorts kind of management and t enough evidence to convict him of that conspiracy thus the most likely result of the alleged error and charging him with proportionately to conspiracies in one count was that murkiness suffered only one conviction rather than two and this hardly constitutes prejudice now he points to burma and fourteen barry to argue that he was prejudiced as initial matter it's questionable whether those cases apply to the various contexts there and considering prejudice the court looked at factors such as overlapping evidence overlapping participants and the nature of the offenses and those reflect the same factors that this court considers to determine whether or not there was a variance in the st place so such a presidency prejudice arguments seems to cut against the argument there was a variance to begin with but even if they do apply in the variance context they offer him no help because he can show he cannot show that the jury lightly improperly used the evidence of one conspiracy to infer his criminal disposition to commit the other because the jury is allowed to consider evidence of one conspiracy to find that martina's had the knowledge required to commit the other and given that knowledge was the primary issue disputed at trial that is most likely with the jury did hear assuming it even considered a nd conspiracy so he can't show heartlessness he can't show reversible error even assuming there was a variance which he also cannot show now turning to the aging in a bit betting issue martinez disputes only the prejudice prong of the eight or any better liability arguing that there is no evidence that he acted in some affirmative manner to aid the offenses in counts two through eight but there is more than enough evidence for a reasonable jury to find that he acted in furtherance of those offenses he felt that he helped obtain the merchant accounts that were used to charge each of the victims and counts two through eight he applied for the fictitious name resorts kind of management which was given to the victims of counts two hundred and forty five and six and he notified the merchant account processor of the company's name change  timeshare goalline which was given to the victims in counts thirty seven and eight these acts to help set up the business so that its workers could full and charged each of the victims and counts two through eight was more than enough to support his conviction on those count that the government has to show for aiding and abetting liability it's different than pinkerton liability because you pinkerton the get the guilt of the conspiracy if they're going to pinkerton charge would have allowed all these other counts to fall like dominoes basic transferring liability from an element to the other element so it's kind of like conspiracy to prove a conspiracy and the conspirators are going liable for the over at similarly here you prove a scheme and the  liable for the use of the mails or the use of the wires so it's different if they're both based on agency law liability in fact pinkerton derived if it's liability theory from mail for this agency principle and then applies it from one offense to another versus with in offense which is why eight are in the and so eight are in a better liability in the context of wire in mill fraud operates similarly to pinkerton but it's different because it's that he assisted in some way the individual acts the established different paths yes and setting up the scheme that allowed this whole thing to happen he was critical and in doing math and that's what this court has held  moylan they held that event responsible under aiding and abetting for getting the merchant accounts for those projects are doing businesses and getting the fit then doing business names for those fraudulent businesses and help that person accountable for aiding and abetting without necessarily tying them to that figure bank and sanders as well for that defendant because of her involvement in just establishing the culture of maximizing billings was held responsible and aiding and abetting for those particular applied by this court before as far as the defendant's argument that there was enough evidence a jury reasonably could have found that he was unknowing participant from the beginning of this scheme given that the merchant accounts were obtained under suspicious circumstances with him and as flying through the al smith in indiana because how smith refused to open these merchant accounts over the phone how's requirement that they had to use a particular phone system otherwise they couldn't get the accounts improperly filled  paperwork that somehow managed to get approval despite the high risk nature of the accounts and a chargeback limit twenty times the industry standard based on this a jury could reasonably infer that martina's knew that those accounts were not meant for legitimate business also given that martina's was both the recipient of the merchant account statements and was a signatory on the company bank accounts the jury could have found that he knew how much money that business was generating shortly after it started operating and as martinez himself testified so as large amounts of easy money evidence that you said he can get beyond that you have his actions before the lockout which show his knowledge of the scheme he walks through rooms pitching he some time from july to december two thousand and nine and that's preside as testimony he received commissions on rooms pitching he in the fall of two thousand and nine he managed rooms where telemarketers used fake names in the fall two thousand and nine he knew the company was changing his name after only six months in business and he instructed  january two thousand and ten to make sure that the customers don't know that we were also resorts condo management before the lockout he complained that he was not getting enough for sticking his neck out there with the heat pitch and he assured room managers that everything including the heat pitch was going to be the same after his planned takeover which indicates that he knew how things were running beforehand and he also talked about introducing a magazine to cover their backs alternately after the lockout result is few with mendez by expanding his fairstein pitching heaps and his share of the generated income based on his evidence a reasonable jury could have easily found that martinez understood understood the fraud scheme from the very beginning and he grew increasingly uncomfortable not with the fraud but with his share of the profits argument i won't rest on our briefs on that unless the court has any questions similarly with the hearsay argument because martinez nor warren addressed that i'll rest on our brief unless the court has any questions about the hearsay argument hints that there is no prejudiced because he because under richardson and since then if he was involved in two conspiracies there can be no prejudice from transference of guilt and even if would have been he had two convictions as opposed to one that is abstention rage no if anything it it helped language and with this court's decision in guerrero st by the plain terms section twenty three twenty six dollars provides for the imposition of a consecutive sentence it specifically it provides that a person convicted of wire or mail fraud or conspiracy to commit t same in connection with the conduct of telemarketing shall be imprisoned for a term of up to five years in addition to any term of imprisonment imposed on the underlying fraud offense this language clearly calls for the imposition of a consecutive term of imprison language of the statute and despite this course decision in guerrero martinez in wars contend that section two thousand three hundred and twenty six dollars does not require the imposition of a consecutive sentence it merely increases the statutory maximum sentence available under the underlying penal statute  the statute says it cannot provide for a consecutive sentence under their reasoning because only statute that sets out a whole separate offense as opposed to merely an additional element can authorize a consecutive sentence but the defendant cite no authority for that proposition and this court has recognize because the court can impose prohibitions probation in certain circumstances assuming he's borrowing the argue it from the autonomy brief in that case but here the court doesn't even have discretion to impose supervising people where do you think that they just report found it based on management of property it was more there's a lot of discussion about his control over the databases and what he could do about it so that would be the property but it was making it was the meaning of the criminal activities as he he says that hiding the true identities of the companies by arranging for the use of nominee names for company documents mail forwarding addresses with purported out of state addresses and the phone numbers that mask the company's purported out of state address as he also provided vice two coconspirators and how do you transition to new company names without raising customer suspicion and he assured coconspirators that he could erase information dorothy's ever come looking john he didn't he didn't manage or supervise people you're saying it's just based it was warranted based on managing property or a criminal activities managing the activity of switching names to name managing that activity hiding the identity of the company by enlisting wessels company and i know all that but i don't look at three b one point one it's as if the defendant was a manager or supervisor and then if in it involves five more participants then you go to the no no two to qualify for an adjustment the defendant must have been the organizer leader manager or supervisor while of one or more other participants then it goes on to say an up or departure not the actual enhancement here might be warranted if the person oversees the property so i know we have some case law maybe reading otherwise but i mean just just looking at the guidelines how do you get an answer and when you don't manage people right  has interpreted that guideline to apply when you manage property and activity so under this court's precedent it applies within as property or activities and this is what the judge did here too could also be interpreted as he found that war and what he did was warranted some kind of adjustment and could it be there down because he didn't think that the government had necessarily proved he was a leader he wasn't yet a leader but he was way more than a rank and file and he was critical to whatever you have in your fingertips there miss hayworth the record cites for the management and supervision of property that laundry list you were ticking off in delgado now when you were going through the various ways in which mr warren manager supervised sharecropper and you have those kind of records science at your fingertips yes so he assisted in hiding the true identities of the companies this is where he purchased nominee and mail on oversight of people or property and if you don't i can look at that afterwards i don't know off the top of my head i just know that they felt like he was a leader based on his being a gatekeeper for health merchant account warren's participation was not limited to just providing a database and funds he went way beyond that i mean he was the one they had to use his funds to get house miss merchant accounts which were extremely valuable because they provided a chargeback limit twenty times that of normal processors he was critical and hiding than the true identities of the company and he advised them on how to transition to new names without raising customer suspicions he was played a much bit bigger role than just a getaway driver are a lot of you can rub up at the very least it was an impossible for the district court to find so and that's all that this court needs to affirm his role is more similar to delgado where the defendant exercised responsibility over the property and activities of the criminal organization by making arrangements for transportation more similar to valid as where the defendant made technical decisions about concealing drugs and planned out issue the factors for deciding whether they're one or two spirits i have never seen a case that says the actors are this john i've never seen a case that says the actors are simply they split in mid two thousand and two they were clearly hers they were competitors just is is apple and hill are competitors you don't have to necessarily prove they call themselves computers they were competing for a limited number of customers to call just flew with a bunch of other telemarketing front companies around orlando and other places so to say they're not competitors is just not supported by the record they were competitors and for that reason they didn't share a common goal i also want to point out that the double jeopardy jurisprudence is informative here because logically how could you have less to conspiracy counts that are not the same offense for double jeopardy purposes but mission together and not call it a very so just doesn't make any sense there either separate offenses for both purposes or they're not and these could not these could have been brought as count one count two of course but they could have been brought as count one and count two without violating the double jeopardy clause they are different conspiracies that's the point so i want to talk now about the the harm issue the prejudice issue so there is some language in some  passing that says burden on the defendant what does it really say burden on the bennett just speaks in that matter but i'm going to allow a supreme court case law here if you look carefully and up this is pointed out in reply if you look at the lawn and you look at  a sufficiency of the evidence issue it is necessarily a due process constitutional issue so it doesn't take a leap of logic here to say the government has the burden to prove beyond a reasonable doubt that mr martinez was not substantially prejudiced at the trial as a result of the variance i'm relying on supreme court of florida for that proposition not some other circuit supreme court for two terms but aiding and abetting the innocent behavior according to mendez that mr martinez engaged in in the beginning was it was innocent because what was remarking this was doing was innocent mr martinez testify without contradiction when he said of his operation when they got the the merchant account and all these other things that mr martinez lent his name and credit to it was not illegal it didn't become illegal intell mid two thousand and nine so that stuff cannot be relied upon to prove mr martinez has gone through an aiding and abetting theory mr at least in the aspect controller manager or supervisor over people and there's going to be no evidence of that in this case and what the court was asking about was the straw brain mind of an ounce of with regards to property or there was enough evidence to show organizer earlier ship row not when determining managerial or supervisory role the government reiterated that in its response however i'd like to point the court's attention to a case from this court united states versus towbar by fifty eight federal opinion explorer d forty two from two thousand and fourteen where this court cites its own previous opinions in the united states versus rake in as well as other circuits including the th circuit th circuit all citing quote our circuit and others have also frequently used these factors to determine whether a participant in a criminal activity x decides to managerial or supervisory role or lesser role