to exceed ten minutes for each defendant and thirty minutes for plaintiffs mr barnett you may proce good morning may please the court my name is charles barnett and i represent brian bailey i have requested three minutes for a bottle a march two in march of two thousand and thirteen ronnie winbush a paid government informant picked up the phone and called his cousin want to wigan's they had a telephone conversation where they discussed one to wigan's need problems cooking food a falling out in the in the bailey family and  why wanda had left her mother's house into that conversation running when bush tried to leave want to wigan's into making statements about past criminal behavior a recording of that telephone conversation was the key piece of evidence that was used by the government to convict brian bailey of conspiracy to commit medicare fraud the district court erred when admitted that a recording of that conversation under eight o one d to this court should reverse the district court for two reasons st the statements in that in the recording were not made in furtherance of the conspiracy and nd the government did not rebut the presumption unreliability of the coconspirator statements with independent evidence we know that the same and between between rhonda wiggins and brian bailey were not made in furtherance of the conspiracy st and foremost because we want to weaken said that she was not working for sandra bailey any more she'd gotten sick in to no longer work for her we know that we know the statements were not we know that her statements were not made in we know that her statements were not made with the intention of furthering the conspiracy because they were all they were all past tense statements statements in which she said and when she was she agreed with statements from want from ronnie winbush about her involvement with sandra bailey in her  testimony of ronnie when bush and i think it's important to note that ronnie when if you read the transcript and listen to an audio recording the majority of the statements come in the form of of ronnie examination the in all of her statements in to ronnie wimbush they're all about past events in the government has to concede that their past events and so they focus on this this discussion about one disney and how and her desire to get a knee brace for what she views is a legitimate medical need which the intent behind  not to is not to further any conspiracy it's you she is expressing her desire to get a a piece of medical quitman for her own benefit moving on from the are you distinguishing between comments that speak to past conduct of the conspiracy as opposed to comments that might speak to ongoing or future aspects of a purported conspiracy so you're on your own or all of her future tense statements in the recording are are in reference to her desire to get in the brace for her knee problems and then there are statements in which she talks about her working for sandra bailey but those statements are all in the past tense and they are they are deck or a deck declarations of past events they're not said with the intent of furthering a read furthering to mean it can can you can a passed in statement can be in furtherance of a conspiracy but the question is is does the person is speaking it are the intending that statement to further the conspiracy when they can also talk about lots of things they all going to go to some past things that might go to future things that are unrelated to the conspiracy but if that person is considered to be part of the conspiracy and they might take future i mean they are still part of the conspiracy maybe might take future actions that help promote the conspiracy at the time of of the conversation but i think it's important to know that here is it is it's really because it's a matter of intent it's not so much whether or not she was or was not a member of a conspiracy of a ongoing conspiracy it was well what was the intent that she made these statements with and the fact that she said that she's no longer working for sandor bailey reflects that findings of the district court ruling and my client's objection to the determination of the law so long in this requires us to grapple with the relevant conduct guidelines and i will confess it's difficult but and the least one case the court has said it's congo intuitive but what i contend happened here is that the district court conflated the concept of criminal liability for a conspiracy with the narrower analysis required under the relevant conduct guideline is the court has often said when you determine wasin a conspiracy for sentencing purposes we have to use the relevant conduct guideline which has a commentary which can oftentimes  responsibility in terms of loss often these are drug cases will be a lesser quantity of drugs than was involved in terror conspiracy it's very counterintuitive it's it you know we are  lawyers always throwing around the pinkerton rule and in for pain even for poland in these types of concepts that's conspiracy law that's criminal liability now for whatever reason and i think the reason was there's  distaste for holding someone that yes is legally guilty of conspiracy but in these quantity driven last driven guidelines settings holding them responsible for everything that happened in the criminal conspiracy when all they agreed to do was the survey out within the conspiracy and it's requiring us to consider at the same time competing concepts conspiracy law enormously expands liability a person in for a penny in for a pound relevant conduct what was the scope of their specific agreements or some difference in cases say to engage in and you have essentially a ceded to that to how do you go about determining if there is it is this distinction that you point to cases that might say there is but how do we how would to cark about even distinguishing between what calvin but but if you look at the end of language well let me back up for nd we have the donna dale decision which adopts an analysis about scope which has a six factor test and talks about knowledge what to the person do but we're trying to figure out grappling with what what did the person what was his specific agreement what was he here she'd agreeing to do understanding that from a liability standpoint in terms of being criminally liable not terms of lost her mission it's broader so it is hard the question a little unfair because i think your point is that there's a procedural problem here which is that the district court just applied the wrong test and so didn't even engage in this analysis well to end it right chance to have particularly his findings about the difficulties they may be in this court can review them but the the the donna d o test which i don't i mean i think it's still difficult i don't think it's  like a clear roadmap and i think part of the problem is all these fraud cases all these drug cases they're all very fact specific they're all very unique even though we try and apply general principles it's almost a case by case about what relevant the position would be that there's whole areas of this massive series of events over several years that he doesn't know about and doesn't agree to they may have happened we may not contest that they happen but what was what was he doing he's a full time elementary school principal helping his wife out on weekends driving here in there once a while and two times in two thousand thirteen which is way after the fact of the massive amount of loss we have some things where they say well you were driving people here and there but so it's kind of like the the the guy that goes with somebody and look out for a drug dealer something at the end of a big conspiracy and fifty kilograms were delivered two years before but all he was doing was a kilogram this month or something that's kind of the approach that i would take on remand and have the just read judge then make some findings and now we have a six factor test in the judge and maybe it would turn out the same i don't know but i don't know that and i think partly yes it was so and it i'm not wanting to mislead the court and say that that definitively answers everything because some of these some of these i just don't think the case was good morning your honors may please the court i'm here this morning representing our sandra bailey and i'd like to reserve two of my minutes for a bottle if i may your honor is there are two issues which i'd like to address the court this morning and they're both related to sentencing the st is the two level mass marketing enhanced but that was given in this case and then nd if i have time i'd like to address the four point leadership enhanced mint that was given in this case as to the mass marketing enhanced meant the type of conduct that occurred in this case is not the type of conduct that is invision by the commission when it made the mass marketing enhanced mint and you can start with the actual language of what this is called which is mass marketing and the conduct that occurred in this case was face to face marketing that was literally door to door marketing between  individuals in these small towns and actually it and there are actually quite a few people who were touched by the message after absolutely differently need that definition of mass well in but even if like two neighbors it was you know it was there were there were probably either well or well over one hundred people that ended up over the course of this conduct being receiving the mess receiving the message but the mass marketing enhanced meant specifically talks about the type of marketing to obtain to get a wide number of peoples using the internet television those type of means of marketing and it does discuss it has the othe they were specifically targeting telemarketing and internet solicitations and bright line we can draw is that there's city involved are electronics it's mass marketing and if it's  just shoot efforts it's not well there is a there is a line that has to be drawn because it obviously can't involve all marketing right so it's it if it was a just a marketing enhanced men then then there would be no line to be drawn but obviously there is a line that has to be drawn somewhere and whether this court wants to say that electricity or electronics have to be involved or not it's clear that the commission intended it for to be that type of it's and it's not about the number of people that were actually get got the fraud committed on them in that case it was a online internet auction so it was a wide a wide net of people but only three people end up bidding on the product in there so there were only three victims in the case now as to the th circuit cases your honor i submit that and i put this in my reply brief that they don't answer the question in this case because those cases only dealt with whether you could apply this an instrument for coconspirator liability in other words the only issue that was that was raised by either appellant in that case was i didn't do the mass marketing my codefendant did this should not apply to me and that was the holding of the both the mask her and that is while a case was was conspirator liability now the the th circuit did mention in passing that face to face marketing could count but that wasn't the issue raised in either of those cases and so it best that's dicta and so you have this dicta by the th circuit on something that was never fleshed out by the litigants in the th circuit that says this we're now to the point where this is preserved and we're actually you know flushing this out in this case as to whether this type of face to face conduct can actually qualify for mass marketing in this case and i think again no better reference than what other things the commission said this applies to telemarketing internet those type of that is if we dr there i agree and in our point is that it should be other means but it's not any needs and there has to be a line drawn somewhere in clearly face to face conversations where you're having six people is what differentiates this from let's say an internet solicitation which an internet solicitations going to take you to thousands and maybe hundreds of thousands of people on one solicitation what we're talking about is six at a time that that yes the th circuit did they it's where they held we think the th circuit has a better argument because the th circuit is grounded on the original commentary from two f one point one back in one thousand nine hundred and seven which is the best evidence of what the commission intended i have a minute left i would like to discuss my leadership enhanced minified may i say are you still making a point about the fraud having to be directed at the victim as opposed to so i'm not i'm not conceding it but i didn't want to spend my last minute on it but i would say that the th circuit case talks to that and goes the opposite direction on that as well with with the three v one point one handsome i think it's conceded that the court didn't make findings that have anything to do with three b one point one when it info imposed a four point enhanced meant my colleague asked this court to make a did novo review of the entire record and come up with its own reasoning as to why the four will be one point one the three b one point one hands which should apply we submit that the better course of action is to remain this case back down to the district courts of the district court can actually utilize the standards under three v one dollar and make a determination of whether qualifies and if so at which level that are grounded in the facts of the case lester any questions on that enhancement at least the ballots my time from oh thank you please the court my name is matt wilson i'm here for the united states the appellants have raised a number of issues in their briefs but particularly what's been argued here today i plan on addressing some of those but in summary there was sufficient evidence in this case to convict the defendants on all the counts and as to the evidentiary and syncing issues we believe the district court made the correct rulings and if there were a year it was harmless i'd like to go to the phone call st the coconspirator statement that mr bryan bailey's counsel raised i don't think there's any  after i'm sorry your honor was that decided by the court that that that the conspiracy had been shown at that point or did the court decide later the court did decided later as well i don't think  particular finding was made but the court could look to the substance of the statement itself to determine whether there was a conspiracy but some proof had been put on at that point as to as to the conspiracies existence to contact dr preston and then was going to call miss miss bailey miss sander bailey to obtain brian bailey's contact information and and try to get me a  to it as well so there is description ample description on her working for mrs bailey she spontaneously not in response to mr wiggins questioning about really brian at all besides who he was she spontaneously stated that brian paid real good to believe was the language she describes how catherine farmer came to work with miss bailey as far as the timing goes i think there was evidence there was a phone call wouldn't miss katherine farmer later in the case and evidence that ms catherine farmer was actively involved as a patient referral source for mrs sandra bailey so i think that could all go to good timing but mr wimbush actually describes his intentions he tells miss wiggins i'm going to find customers going to try and find customers  referred to catherine farmer that during the course of this conspiracy she had received an envelope full of money from miss sandra bailey i think though that even if the but we had misleads have begun his testimony about his involvement in the forging and falsifying of the forms while he was the manager at task and we had testimony from patient judy jon stewart bryant actually went to her house with his mother and forced a wheelchair upon her that she didn't need and she didn't want we had testimony from miss christine thorpe who testified that she went to some defunct office building and met dr bailey continuing to commit this fraud in mississippi as well as tennessee so we think we're dealing with a harmless error standard that the court finds here now as to the loss of wealth i think we could all agree that judge andersen had a very hard job here but on the other hand judge anderson the district court had sat through this whole trial with the rest of us but i think the standard that this court bill accords apply to such matters shows that in that it's is it is an extremely deferential standard the court judge judge given she stated that at the time the donna de oks had not been decided yet and that is correct but as to the laws from outside the district court's finding only needs to be martinez case where the court's decision has to be within the or within the universe of acceptable computations so no you can i mean you can see a lot of peel with  conspiracy knew that i was a possibility but there was intervening case law which i think would you agree takes a different course on how to measure that at least for the sentencing piece there are different views and so what do we do with that well i think here the court can look at judging your sins decision as it relates to god line as well as the dawn a day of factors i think that the dawn a day of factors are actually less intensive if that's the right term than what's actually in the god lines as what's actually to be found here i think i think that as the six factors you don't think it's you think it's not procedural error if you apply the wrong test but basically get to the same place you're saying you're saying that the district judge will get to the same place under either test i think he would i think he would under any concern about having him just apply the right test and i think he did apply the right test here i applied the wider net of conspiracy if the court looks at what he did you can't fault them for not knowing about a case that we had decided as eyes are correct but i couldn't i couldn't fault them there but but if the court looks at what judge anderson actually did calvin's exposure was actually limited where he wasn't held responsible for all of the  all of the claims in this case but to cut off point before you get more time is it one of the half one million dollars or the other drop down there someplace i believe it's one and a half to five million dollars or it might be three but i have but one and a half i probably seven or eight more below that so that's great but the difference between calvin's calculation number and sandra's yes some stachel difference sander bailey was held a camp accountable for all the jasmine claims during their employment their shoes additionally held accountable for her employment at dura tag where she was the employer of record after they left jasper and calvin was not held accountable for that there was testimony as to the jaspin claims thank the senate seeing hearing that even all of the jaspin claims were not counted they were only counted to where calvin was employee during that time period and if sandra bailey was either paying kickbacks to cindy mallard and or the patients were not conspiracy i don't believe there was a number of factors but i think that in and citing the one book one be one point three factors the district court did make make findings so i think the court follow the guidelines as to why he was anderson is his talking about the defendant being convicted of conspiracy and then he goes into the yes and then  of factors we have several factors which support judge anderson's findings calvin bailey received two hundred and seventy six thousand dollars in commissions in his name  he knew that he had not sold that equipment there is some argument in the briefs about other people selling that quip meant i believe it was and mr calvin bailey's reply brief and knowledge as to that the other reality of this is calvin bailey shared a bank account with his wife so he had to have seen her pondered standards and in seeing this money coming in and even going out  the other part of this is he was convicted by a jury of conspiracy and now we're dealing with findings at senate saying on a preponderance standard so i think that judge anderson in the end it correct also i want to talk in my remaining time about the mass marketing his issue it's an interesting issue in that there doesn't seem to be a whole lot of cases out there questioning my adversaries as to the other means language of this god line it wasn't electronic it was an internet it wasn't telemarketing i'm nuts it doesn't sound like bash marketing and like a sense of the word doesn't just go to door to door to door take for example laura warren she was a witness in the trial she got a wheelchair from sandra bailey sander bailey makes the pitch pays or some money nine hundred dollars and all the sudden one wheelchair two if you get her husbands and turns into eighty four dollars names and then some of those witnesses testified in the trial relatives of hers or associates and then next thing you know you've got hundreds and so i believe as far as the small communities are concerned the the technique was very effective probably more effective than an email or  flyer or whatever the how they're focusing on the results opposed to the means i think it's seems there is a focus on the means of africa which i forget which started as a case where there was only one person who was impacted by the scheme but they said that was still mass marketing because they were using a means to reach a lot of people and made it a really poorly executed scheme where no one falls for it but the focus seems to be more on than the means as opposed to the results and they could inform each other but so the fact that there are a lot of people who participate in this to me is less important than how center is going about doing it ok i think the means are important but i think the means here what made it effective so i know that goes to the number what kind of  marketing i would agree henning and ripley in the small communities that were mentioned here it was obviously very very effective but family relationships everything that was used by miss bailey in doing this what kind of marketing is not mass marketing if this is what what falls outside the line in this is a special has been you're trying to target certain kinds of conduct because only don't want to sweep in every form of marketing sure but i true face to face one to one sales i've certainly been number can be considered on that but the st word in the mass marketing is mass so i think that it's hard to draw a number as it's all where one on one right there are to set or to sell and so on and so and so to someone else and so they're all right sort of one on one i don't believe there were i think there are small groups well approach them individually or in small groups so i think as if they were approaching an individual or in small groups or they were building like tele forums where they have people to call in or of attend a mass amount of this is really kind of relationship based one person know someone else or there's a call on the record where she directs ronnie when bush to give me ten people actually tells it tells mr wimbush that vincent already has ten names ya don't be talking to each other to compartmentalize whatever this method was so then there's twenty so it compounds itself so i think that's ward what we're dealing with here your honor on that i mean it's where the patient recruiter would actually have who referred you in the recruiter's name would be on here to make sure that the payments would be divvied out and so i think that that would all support judge anderson's finding here in his reply brief mr shad stated some guidance on this as to the mass marketing that does relate judge regular to the numbers and i think the numbers of the courts questions about the method but the numbers impact being important here while the commission said so it contemplated application this god line when v one point one folded in with the former to inhance meant at least ten but fewer than fifty that language is there in his room reply brief so i think there is still some focus on the numbers of people involved here the impact in my remaining time there was also a dispute about the leadership enhancement i think that for two reasons judge anderson correctly reached the application to god line under either a clear air or a dyno did novo standard we believe the court's decision should be a pilled i say that because there's really two ways there's at least two ways to get there and at this guideline i believe it judge andersen relied on the otherwise of part of this when it reach judge anderson reached his conclusion but i believe that there isn't also also additional evidence substantial evidence in the record as to miss bailey's leadership role the record showed miss bailey was a ring of leader she found the doctors in the case perry press and dr chan she was the one who paid cindy mallard it was sandra bailey who found these referral sources who were mentioned in the trial vincent farmer catherine farmer want to wait ins she directed she had to help her it was through lisa vegas tested testimony that she had someone who actually assisted her in the forms she set up the apple employment for husband she received  salespeople the organization did involve five or more participants i have listed at least eight on page ninety five of my brief how did judge anderson relied on this the case was otherwise extensive the district court mentioned six hundred plus plus patients that were brought forth in the trial i think that's directly is the court inquiring about the later which is the parent or the otherwise extensive counting all of them ok you're put out of otherwise extensive i think under under either way is but under the otherwise extensive i think the court can consider this six hundred or more patients as the district court found and that's in line with the embry case where there was a tax scheme where one hundred and fifty taxpayers were taken advantage of but had no involvement really in their criminal activity so i think gun under either way we can get there there's two different standards i mean judge anderson mentioned the the otherwise extensive and the patient so that's a that's a clear  standard but this court on oh it's it's got the record and will be looking at it but couldn't conduct its own do novo review to support the finding if the court has any other questions about this or any other issues i'd be glad to answer with thank you for your time we ask that the court of firm the convictions  they please the court the government one point of dispute with the government as it is we have not conceded that brian bailey was a member of the conspiracy and that was raised in our brief and into to raise that  my st time but just ran out of time but i would point to the government to the transcript of the running when bush recording the government has pointed to her desire to go to dr price and get a knee brace the cringe good is very clear that she is going because her knee is bad she tells mr winbush that dr present told me to call brian and he said my knee was in bad shape so he if i call if i catch up with brian he'll come out here dr person will sign the papers saying i need one her statements are very clear that it is for her own medical need that she wants this you states multiple times in the conversation that she doesn't want her need to go bad that she keeps on this she's got to keep on going because regardless of he knee these future statements about going to doctor press and very clearly do not have the intent to further any kind of of conspiracy and to the issue of harmless error i think something that clear to to keep in mind here is that all of the other evidence outside of this this recording is all evidence that is all are all things that they're not that are not illegal in less you assume that brian bailey is a member of a conspiracy to commit medicare fraud his name appearing on documents these calculations these are all things that were a part of his job and even the wire fraud is only an illegal act if you assume that he has that he is a member of a conspiracy and if the court has any questions i dispute and i think it's enough at this level to say that's something that the district court needed to look at and make a finding about what and that the concept in the commentary to the guidelines relevant kind of guiding his scope of calvin's agreement the scope of his agreement what did he agree to do and it is fuzzy picos you know implicit exploits it but it's still something has to be because there's no money i can tie you calvin on this want to come was an employee doesn't it take for that that same analysis would would lead to a very different result if it was applied consistently throughout the case not all the money from jasper and went into calvin's bank account but kelvin got tagged for all that and there's no finding of that calvin agreed to all of that and that's why i say i struggle with this because what is what is his knowledge in the case law seems to say that when you can know that something's going on but if you didn't agree to they out then that's not relevant conduct is to you even though you're responsible criminally liable guilty of the whole thing but it's a fine or con or intuitive construct from the guidelines and the purpose i think is to distinguish between participants and it's we do have the benefit after the sentencing of this six factor test which is going to be scary specific but i think the court ought to have a good think of it ought to have the chance to have the district court do what the district court was supposed to do it's not this requirement of particulars findings as to scold was not meet a new by the done in your case it was always in the commentary when i was in private practice over four year period i probably had over one hundred dollars clients i probably talked to another one hundred potential clients during that time period i talked to fellow attorneys that would refer cases to me and potentially or for cases to me clients would potentially refer people to me does the number of people that i talk to in using those methods does that constitute mass marketing under this guideline clearly the commission didn't intend to account for conduct such as that that is where this court needs to draw the line is what did the commission intend when it it to level one handsome and for cases like this and that in the commission was very clear it intended to be those types of solicitations like a one time mass solicitation that goes out to a large number of people to try to pull in a large number of people through fraud and then fires to everybody and the bio say eighty people with the bash marketing if i well when you say you sent out that this is simply this is simply a face to face end in getting ten referrals at a time and there has to be a line drawn at some point so where do we where does this court draw the line there's a blank canvas here in the six circuit to make