i mean he was doing what and i don't want to make what was a complex case over the simple but he was doing what a commission salesman does is he has to go out and contact people in order to make a sale in order to make any money or to make his transaction and by simply giving someone on cash more money for the continuation of business which is is really an element of the fans i don't think we can pin on someone as being an organizer or leader we don't well that's where we somewhat disagree are on but first regarding put job application the number for really what that's just how does the court distinguish an organizer or leader from a manager or supervisor but then you get to what very well i think if we don't yes in some respects your honor i think if we balance mr chase behavior against some of the other defendants the element of control is not necessarily there because that's what we have to focus on certainly he received more of the money and he's the one that made the initial contact which is what the salesman do but he wasn't the one that could split the invoices to remain under twenty five hundred dollars point one when the guidelines specifically relate to see one point seven to the offense of conviction he pled guilty to count for depriving the government of honest services and that is to see one point seven means to give an impetus to or to have a cause and effect relationship th and that's assuming that this is more specifically a case of bribery than fry and as i argued in my brief if anything it's a fifty fifty split neither one of them really balances out the other and so even if we're going to look at the relevant should be faulty to see one point seven which is what the guideline says specifically applies to his count of conviction if you had pled guilty to count one then i think the government would have an argument but i don't think they do because he pled guilty to count for is a sixty two year old gentleman who pled guilty to his first felony or criminal offense of any kind in his lifetime he had worked for the indian health service for about twenty one years and as a result of this case of course he has lost his employment know that mister heller her has discussed that particular issue but i would like to bring a couple of items to the attention of the court when we deal with mr of the judge only relied on this cross level twelve with no criminal history he was then entitled to the possibility of a split sentence but when we talk about that fourth cross reference it talks about which one is more applicable and i understand judge that you say it's a it's a private case but when you look at how the thing came about especially with regard to mr all that it was a matter of mr k s coming and  creating a relationship with him and taking a twenty dollar bill in his pocket bring him a carton of cigarettes doing those kinds of things to create that relationship and when i look at  situation in which they're getting confidential information or they're getting a contract or something of that nature but here what was going on is there was another number of other parts to that particular case there was the purchase of the the twenty five hundred dollar micro purchasing limit there was also a loss to the government in some of these cases where confidential information is given out to others there isn't always that loss to the government when we look at the flipside of that mr all vns restitution which i'd like to get to in just a moment is not limited to soley the payments that he received it's a much broader and of course the co consider the total amount of loss of the government the other thing judge that i think that we have to keep in mind is that when we go back to what the guideline was designed to deal with they would sit there and say that these government employees conducted themselves in a manner in which the citizens did not receive their rights to their honest services by a public official and that's with section two see one point seven is all about and i think that when we look at all of those things you know we sit there and we we we agree at least that that's what the recommended guidelines should be that's the offense that we plead to and then we figure out some way of recommendation that it was it was in the plea agreement that it be tuesday one point seven where did the probation officer recommend that if he recommended that it should be to see one point one he recommended that the cross restitution that mr aldrin was ordered to pay a total of twenty three thousand five hundred forty dollars and some odd cents the problem arises in regards to this particular case and how the courts apportioned that liability for the total loss of thirty three thousand and i'll just use of rough figures instead of specific figures but there's no doubt and there's no dispute that the total amount of lost of the government suffered as a result of mr alden and mr case actions as to those two people was approximately thirty three thousand dollars we also know from the record that the amount of money that mr cates put in his pocket was in essence thirty three thousand dollars because that money became excess commissions excess profit for him and obviously there's no doubt the judge could have said i am going to simply allocate and make you both jointly and severally responsible for the entire amount but the statute says you can do that judge or you can apportion i and what happened here was we got into this convoluted disses as easily as we could have applied to see one point seven we create this convoluted calculations where we take the thirty three thousand we subtract off the amount of money that was paid to mr alls and we then split the difference we then take half of that amount which is about ninety five hundred we stick that back on to the amount of money that mr aldrin received which was about thirteen thousand and we make him pay back basically twenty three thousand out of that thirty three thousand we then end up with mr cape sitting here with still only having to make restitution of basically about ten thousand dollars of that amount so we have not just gorgeous mr case of that amount of those excess profits that he has been able to obtain and we've put that burden on m was duped into this whole thing and obviously he's i can't sit here and say he's totally innocent because he's not that's but he's a person that now carries not only his own financial burden but also the burden that should have been the burden of mr cate alternation should say he has thirteen thousand nine hundred eighty three dollars that the amount of money that he received was the amount of the transfer fees the wire transfer fees thirteen thousand nine hundred thirteen thousand nine hundred eighty three dollars and the rest of that amount should have been mr case thank you very much my name is leave johnson this is a united states attorney from montana let me quickly addressed the last point raised by excuse me mr lansing on behalf of mr alden with regard to really with the fellow has asked here for is that he be responsible in restitution for the return of the kickback bribes that he received any clearly the court's position which i think is reflected in the case that restitution can also reflect the larger culpability of involvement in the case and in this instance clearly the kickbacks themselves don't adequately represent his culpability or his involvement in the overall loss that the government suffered as a result of those kickbacks and i visiting with regard to the restitution is clearly that we have to give the district question leeway here in many of the court can obviously did decide in a case involving a scheme or conspiracy that two parties are joined several reliable clearly the judge did not do that here he tried to apportion true reflect some sort of probability or fairness between them one of the issues that the defendant raises and it clearly is a good point is that you know here we are standing looking at current cast and are all done and art ends up paying more than  kirsch the guy who started all of this and that's certainly true if you look at the two of them in an isolated fashion but i think the court was clearly looking at all of the participants at one time and crime got half of the last with regards to did you are in when you when you break down thirty three thousand that's really the amount of excess payment that the government made for those goods and services so that was the amount over and above that we should have paid probably on the retail market and so about a third of that went to our all of them in this case and he would have kept the remaining twenty thousand so that's pretty much the breakdown of that and well the court used that as a basis for restitution i don't think an act accurately represents the full harm caused obviously because there were findings in the p s r that a lot of this excess property that was then shipped and stored at the v a was it was never found later it was it was what i know i didn't with regard to mr arland he's raised here i didn't look at that issue specifically as it wasn't raised in the case i do believe that i did that and i do know for the course you know know we made the old college try or this sort of chicken and the egg argument but i really don't think that when you look at these four provision is actually honest to say that one should be considered and that's clearly there to incorporate other in the process of negotiations with the defendants and that was an argument that you know they wanted to be able to make to the court i think that when you look at the cases which none of us have done that early stages you know to me it's pretty evident that the court you know have the leeway to do what it did and the reason i say that is because the case was pretty much direct according to one and a probation officer to the one tiny caves in doing that then the court having to derive what the essence of the behavior is then it needs to look at itself for and ask if it is more specifically covered under themselves and to see one point seven and two see one point one or socially identical discretion to do that with clearly what the judge threw the case i did yes clearly what the judge was trying to do was say look the bribes themselves are like a contraband you got something were actually you know we had argument we're quite a bit of are you going over how this this should all play out and whether or not the government would be over compensated if in fact it received something over above the actual excessive amounts cost and  were who were predisposed to join and they needed the money and that's clearly what happened here and i think that's reflected in the judge's restitution order her hair went out identified recruited and did all the things that are listed in the organizer leader application that was any really did take advantage of people who were predisposed to needing the money or whatever clearly the government employees but he was getting the indian reservations so he could find government employees who had access to credit cards and who were predisposed to agree to conduct this activity he did it and it was his design and i think that in worst of purpose for the judge's sentence that was the purpose for his organizer  leader and that was the purpose for the way he arranged the restitution and clearly he wanted to make a point the government employees are not for sale now on the reservation and i think that this case did that if the court has any further questions