valving fifty or more victims and finally the district court play in the air by admitting evidence of graham's confession through agent hops testimony which incorporated the appellant without affording him the constitutional right to confront  regarding the denial of the motion for a new trial there are five elements typically required for a motion for a new trial to be granted that's considered called the barry role the defendant must prove the evidence is newly discovered and was unknown to the define at the time of the trial but the failure to detect the ways the bottom line is you say this witness had a deal for five years but didn't say that at trial and it came out later and there's this recording everything she first presented just is as if this evidence came out of the witness and lied and then your second sort of alternative argument is if the government knew about this and withheld it wouldn't the government if if indeed you're right that he had a five year deal wouldn't the government have to know about it because who else could have given him that evidentiary hearing all you know at this point is the time that he testified he was testifying under the impression that the most who can get was a five year on the tape he never says the government promised me or the government told me no he never specifically said who told him or want us under the impression  he said that he was guaranteed his sentence would not be over five years so it's very clear that that was his and understand at the time that he was testifying  yes but i think that the case law in the fester and get especially under tasks and worst kane is that it doesn't have to be a promise or has to have to be a guarantee they said that it's the not the crux of the fourth amendment violation is he said no defense counsel said well is that sort of an understanding that you'll get less time in prison if you testify and he said no that's not the understanding i get and counsel said that's not your understanding and he said no she's testifying that he doesn't think is going to get less time but he was  well i think that goes to his testimony in the biases that his testimony has to be consistent what they believe is going to testify to to give them more of a biased provide the information that they want and i think like i said it goes down to what he believes it doesn't have to be a promise under tossed and so even though the testifying even if you're right that he had this understanding to get five years and we don't really know what the facts are because there wasn't a hearing but even if that's true and how would that have changed the result the trial because it's that's not a sweetheart deal in five years for a cooperat fraud cases is fairly substantial so why would that have made the jury discredit his testimony really the entire case against your client well i mean five years comparison to the hundred sixteen months that my client received  and he's just there to you know get sympathy with the court it's kind of what he's testifying to makes it seem like he's not there with the bias that he was there with and the reason to provide the testimony for the government that they're looking for and he was pretty much the main witness was the first witness called by this call by the government he provided very incriminating evidence against the client that was weak elsewhere so cynically regarding his understanding of the billing problems so we not only have the problem and begins with the problem and those are the most incriminating evidence against the client both of them have issues so when you combine all of them together it's just not a fair trial that was provided him to see if there is a brady violation here and that's also important because that would also reduce the standard for a newly discovered evidence for a motion for new trial because a new trial is justified based on false testimony if there is any reasonable likelihood that the testimony affected the judgment of the jury if the government knew that that he was testifying with that understanding he would only receive five years it would reduce his burden under the motion for a new trial so that's another reason why the evidence you're hearing was important listed up to forty five or they claimed fifty and over fifty victims that are not named in the indictment there was no evidence introduced at trial against then there is thirteen or twelve victims named in the indictment where there is evidence introduced at trial the other ones they just put their name out there putting a number out there i mean all these cases relevant conduct can come in at sentencing if it's proven by preponderance so why isn't the information in the pre sentence reports of fission under that well there is just ball conclusory allegations and that's just not enough to satisfy them you can't just put a number out and ask the defendant to go through and pick through each one when they don't even know where they're coming up with these numbers or the victims they're not mentioned anywhere it doesn't say how they're that comes with the fifth circuit down there is that you can just assume that was the same scheme it was it sounded like it could have been with the foreclosure properties but there wasn't evidence the court said that the district court didn't make any  findings did not discuss which crimes been committed that's a same issue here there is no factual findings regarding what office dickerson committed regarding the other alleged relevant conduct the p s r included the total amount of loss for the ten foreclosed properties without explaining which causes the same situation here and that the fifth circuit found that they were able to terminate whether benz's dealings with the home buyers and sellers were criminal it's the same situation here we have no way to find out whether or not there are criminal just looking at that p s r with the name and a number and the government seems to want to say well you didn't come here and you didn't not only do the first to prove the amount by the hundreds of evidence because they have the burden regarding the loss amount but they have to get there first before we even can graham's case that you can't determine the last not in this case because there is no distinction between the valid claims and the allegedly invalid claims so i don't then governments on saying that it was frighten archaism wrong in the grahams case i was i think that was their argument regarding issue number  so the government didn't meet their burden regarding the last amount in this case they didn't there's no evidence that you can say that this was reliable and not only that but they the relevant evidence they cited she was the firm so it doesn't require linkage additionally and grey versus maryland they said you can't just such two blanks in the word leader for the person's name which is in essence what they're doing when applying to say enjoy an associates because their whole theory is that dickerson was really the one charges and you and associates so they can say that requires other linkage when it's really just replacing one with the other i mean a lot of lawyers that seem to associates weren't even charging the criminal often last testimony that the jury heard before they were tired for deliberations and only did have a problem with young's testimony and i have a closing the last witness you have the the the problem with the brewing error so all together just produce an unfair trial please the court jason smith united states want to turn first to a couple of questions that judge cost i had first with respect to the information in the p s or at page twenty five eighty eight of the record the probation officer reports that the information regarding this offense was obtained through investigative material provided by the u s attorney's office the f b i and the national insurance crime bureau and further corroborate various co defendants and coconspirators including heather kept this simply is not the case of a bunch of unsupported conclusory numbers being thrown into the p s r the evidence at trial and laid out in the p and vastly inflated chiropractic bills in order to obtain improper settlements of auto insurance claims excursion was another server just to make up specials there were some real injuries completely fake injuries and then injuries that were vastly overstated but the treatment as dr lindsay the treating chiropractor for most of these testified to he wasn't really concerned with people's progress on treatment the bills were a means to submit to the auto insurance companies in order to drive up as dickerson told many of the clients to get as high a settlement as possible go to the chiropractor as many times as possible that's how you're going to get the   relevant conduct and the actual time period charged in the conspiracy also want to come back to one of the theme is a typo said the government does not and never has conceded that the district court got the  calculation correct at mr graham's sentencing we think that the district court erred at that sentencing with respect to the loss of mt with respect to the number of victims and with respect to the way it was determining the leadership role leadership's a little bit different as that's graham sentencing and that's a more individualized assessment and not something that carries over as much and just to point out one inconsistency error in the district court's determination mr graham sentencing the course so ordered one point one nine two million dollars worth of restitution there that restitution number lo from the actual five point seven billion dollar loss number all five point seven million dollars of that loss of those claims had to be fraudulent in order for one point one nine two million the total amount paid out by the insurance companies to be an appropriate measure of restitution at mr dickerson sentencing the court applied the proper methodology there was a single overarching fraud scheme proven the fraud  scheme show that essentially everything submitted was just a means to an end to drive up the settlements the court was well within its discretion and within the case law in sharma and jones to say if you defendant to show an offset if there was some validity to any of those claims the burden is on you to come forward with evidence this court has held that multiple times in multiple contexts and mr dickerson did there was no  five years so weird that would you think that came from i think just thinking as a person the sloppiness of speech that sometimes folks in gaijin whenever they're not carefully thinking about  every ramification of what they're seeing i think that risk of people speaking imprecisely is one of the reasons that this court has the barry rule because it is easy to go out and get someone in gage in a conversation where they say something that seems like maybe it's in some way impeaching as to what they testified to when they were under oath and carefully testifying taking very seriously what they were saying and if this court or to get rid of the war and allow trials and require hearings every time something like that happened there be a pretty large waste of judicial resources in terms of sussing those things out that's also the reason why this court vests so much discretion in the trial judge the trial judge here who took marion young's plea you saw marion young testified who knew that plea agreement inside an hour and just to turn back to a question you asked earlier who could have promised young five years the only person who could have promised young five years is the district judge that and the judge recognized that when he developed denied the new trial motion there is one is the only way you can guarantee it but  a prosecutor someone else could say well i'm going to ask for five years that's on a natural or right but that's not what the new trial motion was predicated on that he's ramos it was predicated on he had promised a five year deal that he lied about and hid from the jury in fact he testified that he was hoping for a lesser sentence and testified to that on direct there is this whole telling you know sure this because it just seems it's all testimony or during trial and then afterwards confused he says well is there that sort of an understanding that you will get less he doesn't understand that that's a certainty i can see where someone would say i do not i do not understand it i am guaranteed last time and i believe that's on cross examination if i for it is actually to to back up in looking at is there some sort of impeachment value from those tapes you have to listen to them in context and multiple top track one in six twenty two and eight thirty this young talk specifically about how his obligation is to tell the truth and he doesn't tell the truth he will lose his plea agreement he also says track too that the prosecutor couldn't offer him anything that only he can only make recommendation and it's the judge who sets his guidelines and you know the prosecutor on redirect can clarify a lot of those things that prosecutors had certain list across and then you get this kind of a garment picture about what's there to the prosecutor have a perfect opportunity come back on redirect and make it quite clear what the understanding is between the witness and the government and they don't do so  accountable for an intended loss of five point seven million or so forth but you end up with them but i'm a very large restitution orders us nice paper and one of the facts here is that something realistic there i don't know what the facts are m substantial assistance the government retained the right to make a five k motion it reflected that his maximum sentence was twenty years on each of the two counts that he pled guilty to and that was the deal there was no deal for a five year there but he got five years he did some corporate shit what's on the table well just a back up to the cliff there was a saying five years and then it turns out he gets five years short and with twenty twenty hindsight it's very easy for things to look pretty suspicious which is one of us with a short hearing to flush it all out but i understood your honor a couple of things about the context of those tapes the context of those tapes is largely mr young saying mr dickerson was a fool for going to trial because he should have taken the same plea agreement that everyone else took the chase lindsay took that britney jesse took and when mr young is talking about where we think there were pretty serious guidelines errors in the calculations also are all differently situated than mr dickerson and by virtue of much lower criminal histories and having played guilty and accepted responsibility  just to back up those that plea agreement that mr young is describing he described as having been offered to everyone none of those plea agreements included a five year cap which goes into the capturing sentencing exposure but if he said i i feel a little backed into a corner i'm asked why it was done that way i was involved in that decision i don't know it was a two year conspiracy those mail fraud counts spam the brea conspiracy i do know is a craft you could take most simple mail fraud kind and take every drop of every time you drop a letter in a box and charge another count before the sentencing guidelines when i was a student impeachment evidence he ruled completely properly in denying that new trial motion there simply was not a secret deal for a five year sentence the p supported by accurate information which was corroborated to district court apply the proper legal standard in terms of how to offset any losses there is no error there  any group error from the single statement that came out on cross examination could not have been material in the light of the overwhelming evidence i'm happy to answer or try to the questions of the panel has put it well this isn't a question of just a follow up i want to make sure what i said earlier was accurate given judging about them saying that to send the message back at section two fifteen of the u s attorney's manual in order to promote the fair administration of justice as well as the perception of justice all you wish us attorney should charge in indictments is few separate counts as are reasonably necessary to prosecute fully and successfully and to provide for a fair sentence indictment should be limited to fifteen count honor first i'd like to address the government's argument regarding the plea agreement being as i say tagged as evidence the important part is that it was not presented to the jury was never offered it was never admitted the only information that the jury has regarding the plea agreement is what what marion young testified to and although the government tries to allege that the five k cream it was before the jury that's not true is just simply not true it was never introduced into testimony the plea agreement was not in evidence the only information to the jury was what was testif just because the marketing dream and not presented evidence that just that just doesn't counted and also regarding the the court's concerns and just to make it clear the government never did clarify marion young's agreement after the court as you're saying it you know at the minimum it was not very clear now as that the government's argument is that marrying young this was same five year is us sloppiness of speech and that he didn't understand the remicade ramifications of what he was saying i mean i think that that is more of an accurate understanding of what he was and understanding his agreement was when he's talking to his friend on the phone rather than in front of the government who's deciding whether or not he's going to get this five k deal and he knows that he has to provide good testimony in order to get that because he's thinking he's going to get five years which he did end up getting five years so i wouldn't say that that  want other one other person one to just dickerson in graham went to trial so you force the people who pled guilty and cooperate are going to get less and some people don't like how big that discrepancy is but that's that's that's always the case well the gram only received eighteen months and he was the one that receive the benefit issues and then that's why there is such a big difference there is a small difference in the criminal history category but the main difference at that point was the government sustaining the objections when it came to grammar not dickerson and so when it comes to a fair sentence and you look at the two it just doesn't add up he was liable for the five hundred seventy eight thousand and seventy five million seven hundred eighty seven or sixty thousand but they said that was based on the clinics which were alleged and then quote additional fictitious claims submitted between two thousand and five and two thousand and seven now there's no additional information regarding these additional fact fictitious claims i don't see how there's any reliable and in to show of addition of liability regarding the matter they can't just say oh in the other things i mean that's just how are you supposed to defend against that how are you supposed to  bit divorced from reality and i've seen a lot of these but there's a lawyer and it's a district judge the p s r summarizes what's in the investigative file so yes if the defense lawyer never saw these numbers from the insurance company you're going to court and pound the table into battle where these numbers are coming from judge but usually the defense attorney should have all that information is in from the discovery from trial and so it's i just don't see it as you're presenting it as some surprises p s r comes out and there's numbers and and oh my gosh where they come they don't have the evidence that was in the objections when i said it wasn't part of the charge conspiracy that gets into the realm and conduct but i didn't see where they there was an argument that they did they never had access to the discovery showing these insurance companies numbers i don't think is anywhere in the record that it was turned over