well we will hear the first case united states versus linnik kaplan to moscow oregon  right may please the court my name is randall unger and i represent mr linacre on this case i'd like to confine my argument to two of the issues raised in the brief the legal insufficiency of the evidence and ineffective assistance of trial counsel with respect to the insufficiency of the evidence i would point out there were stark differences between the cooperators account of what mr linux said to his customers and what the customers actually testified to the cooperating witnesses claim that everyone in the company van star made fraudulent promises to the customers essentially lumping mista linnik together with the other salesman including the cooperators themselves who probably made the most outrageous misstatements to customers linux actual customers who testified in this case testified that mr linux did not guarantee any particular profits he provided them only with estimates of what they could earn from the business and he made it clear that the business like any other carried risks there certainly was testimony to that effect but there was testimony by other people that  as well so i don't know how you can say that there is insufficient evidence or a jury could find a more interesting argy argument has to be vis a fish and c of counsel yes and  whether counsel should have called other witnesses rather of encounter than know what is very about that i mean well this is obviously a complex case a six week trial numerous witnesses called by the government three hours of pretrial preparation i actually pretrial consultation with a client is paid an insufficient in a case like this and basically at the post verdict hearing at which both the defendant and his trial counsel testified they would not really in much disagreement as to the amount of time they spent together prior to the trial yeah but you have to say something that happened because they didn't have those free hours or more than three hours well sir you're arguing that it has to do with calling other witnesses yes or not and it's vet that i mean were of these people how many were very was it purely strategic well is that something we can decide now best for them it well i think the hearing after the verdict was some pretty comprehensive so i think the court does have the authority to rule on the issue at this stage without a twenty to fifty five motion doesn't he say correct me if i'm wrong that the counsel says that he discussed the strategy with manic and linnik was agreeable i well i don't know that that's entirely accurate it appears that counsel made no attempt to even conduct such investigations so i think under the strickland principle investigations are only reasonable to the extent that they may not be necessary what he what he said was and  his his his view was credit he said that he discussed it with a manic the strategy that he didn't think that doing so was going to be very helpful terms of the investigation but he based that statement on no investigation whatsoever as to the other one hundred forty customers i don't know how an attorney could make that decision if he's conducted no investigation to determine if there are satisfied customers had he spoken to a few of them would try to locate them and gotten disappointing comments that they were also as dissatisfied as the testifying customers then it would be a reasonable judgment not to conduct further investigation but not even making the attempt i don't think that subjectively reasonable performance competent performance by trial counsel thank you thank you good morning justices may please the court my name is vincent martin only and as you heard earlier i will represent lawrence kaplan i also would like to confine my arguments to basically a singular briefly here with respect to i guess the main question i had coming here today was a question in that that panel because i was here for that panel that that panel opposed to government counsel and the question that the panel imposed the government counsel that day were regarding restitution was is there an anomaly between restitution being almost demanded and if not almost being demanded in a criminal case and precluded in the civil case whereas the victim essentially cannot recover in a civil case and can recover in a criminal case and the court opined then question was that an anomaly and i think what the court was driving at by asking the government that question was a sentence not just contain and his lead defendant ned weaver yet none of that restitution would would have been available in a civil case i think that because of us that's such story scheme isn't there a statute there is but what i weaver court relied on was united states versus bin day and i think rightfully so in that case as what judge as rec did here judge as rock as in bin day said regardless of what the last amount is i'm sentencing the old fashion way and i'm with you asking us to revisit weaver i am not asking you to we revisit weaver in any way i'm just saying that there's a distinction between bin day which i don't think was adequately fleshed out in the list panel and i was trying to do that here and i again i see  over time i think that the you are asking us to revisit weaver i am not i was just asking to clear up the differences between what we've heard court may have said with reference to last him out and what i see the difference here was with mr kaplan thank you intended last issue to mr do mrs case he's in a different position than mr weaver and i would say that we've a case is not controlling his situation because the loss in his case is the loss and we've this case was based on the entire operation of the of the company whereas the loss parties agreed that the lawyers for mr duma should be based upon what his customers lost or didn't lose and the government started out claiming that there was a loss in excess of two million three hundred thousand dollars the restitution amount the actual loss was set at two hundred ninety thousand dollars to two million dollars less a minimum wage t this affected two levels because you're looking at the bottom of the two hundred ninety thousand lines of we're talking about she found that the last church africa found that there was was one point four million dollars was the intended was and i was based on really nothing it was numbers pull that thin air the court only has to make a reasonable estimate of the actual loss exactly but that was in a reasonable reasonable has to be based upon reason here what the judge said is that and the government tumorous for the entire time of this period under the indictment two thousand and four to two thousand and nine intended every single customer loose every single dollar and that just simply wasn't true what's important what he said government conflates everything that occurred over the five year period for every single individual and it tributes knowledge to every single person mr to the clients to mr dumas had who testified in court there were only there were five of them they he dealt there for them he dealt personally with there were four of them and so i three of those were purchased in two thousand and seven one of them purchased in two thousand and four it wasn't until later in two thousand nine that some of these individuals had started having problems to the locating companies one of the things they conflate is this idea that one of the customers he referred at locating company called vending dreams and the government said ah ha ha he'd call that vending not mess but the government ignores the fact that that title that's lord didn't come up to a year after mr dumas made a recommendation of that company and could not have been something he had in mind at the time it's only by conflating all of those things together that the government comes up with this with this theory of liability and of and of damages and don't and the law is clear that to be fortunate the statement has to be fortunate at the time it's made the fact that at some later time a locating company becomes deficient doesn't mean a mr dumas knew that and had to know it at the time and the government attributes that kind of knowledge to him doing at the time thank you thank you honors richard goldberg was an entry level salesman the supervisors got kickbacks his boss made hundreds of thousands of dollars richard was just a disposable employee but the judge sentenced him as if he were the boss's right hand man the judge used the same script to sentence him as she did to sentences boss that was are you say as i understand it that your client statements to james jackson were acceptable sales puffery right but when you look at what jackson testify as to what goldberg said it doesn't seem just mere property he says that store machines were made of high grade plastic that was the same plastic as a has of the space shuttle right that seems like puffery to me but your honor i think the point of mr jackson's testimony is that it showed that mr goldberg's pitch with different he was not just like the others and shouldn't have been sentenced in the exact same way as the other isn't this all something that the district court kind of thing the sense of the district court is going to tell us i mean how do we sitting here tell the difference well you can tell from the facts and you can tell that the judge didn't consider these differences  sentencing because the judge used the exact same words to sentence mr weaver mr goldberg spot making of the star liability arguments really a sentencing is a sentencing argument mr goldberg was not sentenced as an individual and the sentence didn't take into account his lesser culpability than others or his different background mr goldberg had a very difficult childhood he was an unemployed high school graduate when he started at penn star he worked there much less time than many of the others he made significantly less money he was not the same as the other defendants and should have been treated as an individual that's what our law requires may please the court the convictions and the sentences in this case should be affirmed regarding the sufficiency of the evidence arguments all of those were arguments that were made repeatedly throughout the trial that were made repeatedly throughout the summation they were arguments that the jury heard and that the jury answered in its guilty verdict a verdict that was amply supported by the evidence and that was entirely rational regarding the ineffective assistance claim of mr linac after trial mr linnik was appointed new counsel who handled post trial briefing and as well as this appeal judge as rock held an eviden hearing on the ineffective assistance claim of both mr at both at which both mr linnik and his trial counsel testified at length based on that hearing based on the assessment of the credibility of those two witnesses and based on the evidence she heard while presiding over the trial for six weeks judge as rock found the trial counsel was not ineffective it is really nothing more that we need by way of record  used by the district judge was virtually identical as to each person raising a question in your adversary's mind as to whether the district judge really took into account the individualized circumstances of the salespeople involved for example linnik being we are we are led to believe in health and older yes your honor so first of all at the sentencing at each of the defendants sentencings the district court went through the process that this court has prescribed she testified she reasonably calculated the advisory guidelines she addressed the thirty five fifty three factors and as part of addressing the thirty five fifty three factors she discussed each defendant's age each defendant's role each defendant's characteristics the letters that she had received from family and friends regarding the language court requires the district court to explain in such to some degree the rationale for the sentence imposed and the record indicates that the district court did so in this case one of the thirty five fifty three factors is to the need to avoid unwarranted sentencing disparities in this case mr ray linnik goldberg we're all salesmen they were all differences of age i'm just interested in whether of or after you know you can go fruit of the things completely without saying i'm doing this or this and this but without giving any case and in each of the sentencing hearings yes the judge did use similar language in describing the crime the same crime of which each defendant was convicted but she also used distinct language in  addressing each defendant and the sentences here they're not all the same mr du miss received a forty eight month sentence that is in recognition of his role as a manager mr kaplan and mr weaver sentences were significantly higher than the salesman's the district court clearly was weighing each defendant's role in the scheme mr linnik did not argue age at sentencing in particular and a counsel not to have attempted to find suppose that satisfied customers of mr lennox what the record shows is that trial counsel did not believe that evidence from satisfied customers if it existed would be helpful that's actually borne out by the record other defendants called several satisfied customers the trial judge did not find their testimony credible the jury obviously returned the verdict that it did it's also important distinguish i think there's been some conflation between the time trial counsel spent with his client before trial versus the amount of time he spent preparing for trial the record indicates that counsel said he spent many hours preparing for trial going through discovery that some page one forty one of mr linux appendix and two regarding satisfied customers there's no evidence that there were any satisfied customers and that is something if there were evidence that there were satisfied customers mr linux post trial council have had three years to find such satisfied customers were there some customers who testified that they were satisfied there were several customers none of whom dealt with any of these defendants none of whom dealt with mr lennox specifically so that you actually meant to make a somewhat now or statement correct i think their complaint is that mr linux trial counsel did not attempt to find any satisfied customers of mr linnik and i would submit that trial counsel cannot pull witnesses out of the ether there's no evidence that there were any such customers and it's ironically the fact that mr linnik was unable to point his trial counsel to any customers fraud conviction and you've got jackson who testifies that goldberg told him that he would get his invest vestment back and i'm quoting if he emptied his machines on e and that's technically true isn't it the record is i don't think that's technically true i think if you interpret all inferences in the light most favorable to the government the trial record was even if that were to happen that would not have been true but in addition to that other misrepresentations that mr goldberg made to mr jackson were that mr goldberg would have hold his hand every step of the way that mr goldberg own machines himself that is you already mentioned that the plastic on machines was the same type of plastic in the space shuttle that event star offered lifetime insurance and mr goldberg directed mr jackson to a locating company that he knew would not provide the services that he was touting it would provide runners unless there are any further questions of government respectfully request that the convictions and sentences be affirmed thank you one minute you want to unfortunately for myself i think mr to mayo did a better job of addressing the sufficiency of the of the last amount issue a little bit better than i  government certainly argued at trial that kaplan was weaver's right hand man but i think additionally it could be said that mr weaver made no sales made zero sales so the question of how do you determine what the loss of mouth is for mr kaplan is significantly more difficult than it is for any other individual he's not management he's not not setting policy maybe he's passing along the policy that ned weaver dictates and he made zero sales zero in the entire time he was that vent star during this indictment period in addition what adds to the confusion is that three witnesses did testify for the defense that they were happy to the tune of twenty thousand dollars profit a twenty thousand total another said twenty thousand per year that he her and and so the question becomes one judge as rock issues a sixty percent credit let's say where does that number come from how does the how is that the term there was no evidence at trial for her to rely on zero how come it wasn't sixty five percent how come it wasn't fifty five percent and i think that's a faulty i don't i want to be mined for those limits of rebuttal to respond in to what was said and i only know when mr jasper stood mention them as to dumas had a forty eight month sentence because he of his role in the offense that we did argue in our briefs and brief extensively on the fact it was in the basis for that distinction and those additional points the other three level and the three eleven hance meant because it was based upon you know testimony again conflating what and the jury and the jury voted to convict them well that doesn't isn't how sufficiency the evidence is determined it does terman what the inferences are and it is very important but it doesn't cure the error of mr jasper honour's mr goldberg was different and the government's answers to your questions ignored some of those differences the locating company that he recommended to mr jackson personally gave mr jackson choices and then the one that he recommended is not the one that the government presented evidence about a trial there wasn't evidence mr goldberg didn't own his machines and your father's questions about sentencing that they focused on mr clinic being the oldest mr goldberg was the youngest and he was the least experienced he was one with nose business sophistication he wasn't and at sentencing he presented a number of facts about his change in just the substance of reasonableness argument i'm making a procedural yes i am what is the exact error the failure to consider him as an individual the plugging in of facts to a script that was used for other people that were different just because everyone is different but also a thirty five fifty three argument the rests on the court's alleged failure to say that or refer to his lack of experience so to what it's the judge's failure to consider him as an individual trying to figure out what the procedural flaw is is the flaw that the judge didn't say a b c or d because of that if it is required and i don't know it is required would be a procedural error or is a flaw that he the judge in fact did not consider vs being substantively and vera four came up with a wrong answer in which case it is a substantive argument not a procedural one and i'm not clear which of these two you are making i think some of the confusion is that i am making both but the proceed ok i'm sorry that's awful to know the procedural error though is because the judge used a sentencing script for mr goldberg and for m tells us that it is procedurally wrong for a church to use the same script you know i don't have a precise case because i don't think it really happens judges don't read the same script for different defendants thirty five i'm having trouble you're asking for an opinion effectively that says that if a district board judge reads the same script in the context of a multi defendant case at sentencing that is but it is an argument you will hear i don't think it says different as the case already that already exists because the case sides clear that a person must be considered as an individual at sentencing i couldn't find the exact if you had two people who were have the same characteristics convicted of the same crime you wouldn't say that there w would you the script for the same it's hard for me to imagine two people that had the exact same characteristics and had no differences between them and culpability or background but if they were if they were clones of each other who had done exactly the same thing then no your honor but your honors presenting a counterfactual here and that's why this is a substitute and reasonable in this argument as well mr goldberg was different this isn't just a procedural error it's also  error in the court failing to take into account mr goldberg as a whole and see that three years was too long for him to be sent thank you thank you all for your arguments the