two three seventy one conspiracies and the question is do they reflect one conspiratorial agreement or are they as a government towards two separate agreements i'd like to begin with the fiduciary issue first that was charged with two counts with the court correctly decided head to group and figure out what the guidelines were under each count first separately and then group them together and go with the highest one and correctly found that count two which is the two a five point one is the highest chance level in and went with that count to had a base offense level of ten and has been of sixteen based on the quantity involved in the end there was no can contest that any of that the contest comes because count t x two point one which applies to aiding and abetting now the defendant was charged as an aider and abettor not in counts one and two but only in count three which is the honest services wire fraud  based on that i believe the court because the trial court became confused and applied to its two point one says that if you're convicted as an aider and abettor you're sentenced for the offense the same offense and if you want as a district court should have gone point one on count two he just shouldn't have given the the and handsome an for for this year and i believe he became confused in that because of the ending it as he relied on the aiding and abetting  a low but in the first sentencing that frederick who was an officer of the corporation of the union is a fiduciary and that applied to him and i think the confusion became when the judge said ok but it aider and abettor have the same offense yes that is related correct in relation to count three it isn't correct in relation to count two and more importantly by conspiring with for do sherry you do not get the enhancement for being a fiduciary it's an enhanced move based on status based on your role as as as a fiduciary and simply should not have been applied in this case against mr cooper it was error to do something and prejudicial are that's the gist if there's anything two are both part of the same conspiracy then this is multiplicity us and i think the best proof the government torts is to separate conspiracies one for theft essentially and count one and then payments to the union official count two which the government prosecuted as two separate conspiracies but if we look at the defense i'm sorry the prosecution's theory at trial they prosecuted count two as essential either quid pro quo for count one there was argued throughout in both openings and closings by the prosecutor was you look at the interrelationship between the two the kick they started off with f based on contracts for construction services of the union headquarters and then that went on for a while i think probably a few weeks and then there was the second portion of the second half of the agreement which was the payback the kickback to frederick for making the payments and as the prosecutor argued you look to the two combined and one was the payment for the other under that explanation and i think the prosecutor was right they are one conspiracy not to because they're separate parts of the same conspiracy it would be analogous to saying i was a drug dealer consigner fronted a quantity of drugs to someone else who sold them and came back and paid me a few weeks later or a few days later that's all part of want to greenock to distribute drugs it's not two separate areas to distribute drugs and then pay for drugs and that's what the government tried not what they tried it's what they did do here the kickbacks clearly given to fred record and they were the house and the improvement of the house were clearly the quid pro quo the i disagree with that because i'm right yeah but why because we complied with the rule the rule said move you have to move pretrial right for multiplicities indictment that was filed the judge heard it we of you know it at the time of sentencing waves what you have filed and what the judge denied initially so i think i mean frankly should apologize in the sense he was a new judge and i should have thought of that but i did it in the heat of battle but nonetheless we preserve the issue by by complying with the rule making the motion advance and having the night in advance or at least not address on but the night either the first ruling and then and then never did rule i mean i guess implicit is a denial in his ruling with the motion as i understand it the motion that he was denying included more than just the multiplicity i think it did i think the other lines everything except the multiplicity that that's what happened is man the judge of latitude in franklin restructure a sentence to achieve a sentencing objective that's different than what was imposed in the first one i do not think and it's an interesting question and i can't pretend i've researched it as part of the preparation for this i know that remand judges are allowed to me sentence and structure their sentences differently whether he would be allowed to increase it back to sixty eight months when the clear import of being consistent would be to knock off the eight months and leave it to sixty months concurrent for should remain for the limited purpose of re sentencing the statutory maximum on counts one and to this question affirms or converse convictions and sentence for several reasons with respect to the m mr cooper raised two issues in his motion to dismiss is actually ways in the government's favor in this case because that makes the court's ruling on his motion to dismiss based on multiplicity clear because of th like this counsel had to renew the motion i could not find a case directly on point where the motion was made with respect to multiplicity in this court's opinion in the united states versus illegal and stated that that the appropriate time to go to object to that sentence was after sentencing the united states does recognize that in this court the defendant or in this case the andersen case the defendant circuit opinion cited by the united states and in that case the court expressly conditioned the pretrial of ruling and then found that because the defendant didn't raise his objection at the time that the evidence came in at trial that the court's  review was for playing there the cases that deal with multiplicity really underpin the united states position because as the court can see these cases are highly fact dependent and for this reason the district court should have the opportunity to make the determination because the district court was the worst record get the opportunity if you're wrestling with was that he wasn't factors somehow or other outweighed well in the in the united states versus maki that case that the ninth circuit found that the conspiracies had relative interdependen they did actually find that that favor still waiting favor of finding two conspirators conspiracies that case is actually not that much different from this case and that in fact the criminal objectively in that case two to distribute bootleg gasoline and avoid taxes is actually those that are much more closely related to the then the objectives in this case and in the market case was that was a deal where network to distribute the bootleg gasoline which is not unlike interdependence in this case in this case i would point out yes that roughly the same people engaged in which is the deal i would point out that at the time that the theft conspiracy was first agreed to which was at least by may fifteenth of two thousand and thirteen there was no evidence in the record that mr frederick  had stated or implied that he expected to receive something in return and by that date on may fifteenth of two thousand and thirteen the theft conspiracy was already in full force that's evidence by  the website that s t s construction created indicating that they had really just grossly exaggerating s e s his capabilities that's indicated by the signing of the one point four million dollar contract for five hundred thousand dollars worth of work and that's indicated by mr fredericks x in signing that contract with out first going to the board which he had done numerous times before when signing contracts for such an expenditure that's evident by the fact that by june fourth before the second conspiracy was entered into s t s it already received five checks totaling about twenty three thousand dollars for some work that had been performed but a lot of work that had not been performed by the time that these parties went to look at that house in upper marlboro in mid to late june of two thousand and thirteen the feste conspiracy which at least began by on may fifteenth two thousand and thirteen was already in full force wow mr frederick may have had in his mind at the time that he agreed to enter into the theft conspiracy that he wanted to ask for something in return or w is a relation but each of the each of the counts that could have stood alone for example the conspiracy charge in count two these parties would have violated the law no matter where that money came from the unlawful labor payment from s e s construction company to the manager of local fick six fifty seven was unlawful regardless of where the money came problem in this case it did come from local six fifty would like to clarify the record in the guidelines calculation the district court applied section to a five point one on the basis of count three that is the count mr cooper was convicted of on the theory of aiding and abetting and that is found on the joint appendix page one twenty four the sentencing transcript mr cooper did not assert error to this application in his opening brief thus he's waived any objection to the application of two five point one on the basis of count three moreover at sentencing when the district court language from count three and made it clear that the court the district court knew it was applying to a five point one on the basis of count three this is not an air mr cooper's island calculation is correct up to the point that he indicates that the statutory index leaves the court to to be one point one but what he leaves out and this is crucial and the government didn't have the opportunity to respond to this because he didn't wave this r r she did waive this argument opening brief  to be one point one has a cross reference section and that cross reference section c three under that guidelines applies to this case and that c three and two b one point one r guideline section which is the labor and racketeering bribery and kickback guidelines section two count three and the district court made it clear that he understood that this was a bribery and kick henderson the answer to your question at least from the government's perspective is that under the sentencing dr and packets are the sentencing package doctrine that this courts should if the court rules in favor of the government on either the multipl i think the prosecution's factual claim about the twenty three thousand dollars that proceeded the june date is revealing which is a one point seven million dollar conspiracy and the twenty three thousand dollars is is relatively chump change and doesn't really reflect much of a criminal criminal activity that was worked on that might be flayed but it was at the point when the decision was made to buy the house which was the kickback to frederick that the money got serious that next day or within the next two days there were hundreds of thousands of dollars that were given to as the us from the union that frederick authorized and that's where it shows into relationship and that's where the quid pro quo is is most revealed i disagree with the prosecution i believe that the the judge in his pre sentencing memo indicated that to be five point one appointed to count two not to count three and that's where the fiduciary relationship and has been comes in but even if i am  of thank you that case