USA v. Winner (Sentencing Memo)
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Transcript of USA v. Winner (Sentencing Memo)
IN THE UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA ::
v. : Criminal No. 11-000169S:
GARY WINNER :
UNITED STATES’ SENTENCING MEMORANDUM
I. Introduction
On September 29, 2011, the United States filed an Information and Plea Agreement in the
above-referenced matter. The defendant waived Indictment and, on November 17, 2011, pleaded
guilty to the four-count Information charging him with two counts of health care fraud, 18 U.S.C.
§ 1347, the introduction of an adulterated and misbranded medical device into interstate
commerce, 21 U.S.C. §§ 331(a) and 333(a)(2), and one count of money laundering, 18 U.S.C. §
1957. In connection with his guilty plea, defendant admitted that the loss to Medicare from his
health care fraud offenses was $2,210,152 and agreed to forfeit up to that amount.
Presently, sentencing is scheduled for February 10, 2011. The Presentence Report (PSR)
calculates defendant’s Guideline range at 70-87 months. The defendant objects to the PSR’s
inclusion of a two-level enhancement pursuant to Guideline § 2B1.1(b)(2)(A)(ii) for committing
his offense through mass-marketing, the PSR’s inclusion of a two-level enhancement pursuant to
Guideline § 2B1.1(b)(9)(C) because the offense involved sophisticated means, and a four-level
enhancement pursuant to Guideline §§ 3A1.1(b)(1) and (b)(2) because the defendant knew that
his offense included multiple vulnerable victims, namely senior citizens over the age of 65. In
addition, for various reasons, the defendant contends that instead of a sentence within the range
of 70-87 months, a reasonable sentence in this case would be eighteen months. The United
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States addresses each of defendant’s objections below, and responds to his contention that the
factors outlined in 18 U.S.C. § 3553(a) warrant a sentence well below the Guideline range.
II. Argument
A. Defendant’s Objections to the PSR
The defendant posits three objections to the PSR, two of which the United States does not
contest. The United States agrees that despite the seriousness of defendant’s four-year,
multimillion dollar, nationwide health care fraud schemes, the defendant’s actions do not
evidence the kind of “especially complex or especially intricate offense conduct pertaining to the
execution of or concealment of the offense” to warrant an enhancement pursuant to Guideline
§ 2B1.1(b)(9)(C). Guideline § 2B1.1 Application Note 8(B). Further, although the United States
contends that the senior citizens whom defendant exploited during the commission of his offense
are in fact victims within the meaning of Guideline § 3A1.1, the United States recognizes that the
First Circuit has cautioned against the presumed inclusion of categories of people, such as the
elderly, in the “vulnerable victim” category. See United States v. Fosher, 124 F.3d 52, 56 (1st
Cir. 1997). Thus, absent more specific evidence regarding the elderly victims of defendant’s
offenses, application of Guideline § 2B1.1(b)(9)(C) is inappropriate here.
Defendant’s objection to the Guidelines enhancement for telemarketing, however, should
be rejected. The defendant improperly contends that the mass-marketing enhancement under
Guideline § 2B1.1(b)(2)(A)(ii) does not apply unless the defendant mass-marketed to the victims
of the offense.
Defendant’s argument is contrary to the language of the Guidelines and relevant case law.
Section 2B1.1(b)(2)(A) states:
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(Apply the greatest) If the offense ---
(i) involved 10 or more victims; or (ii) was committed through massmarketing, increase by 2 levels.
The clear language of the Guidelines does not limit the application of
§ 2B1.1(b)(2)(A)(ii) to situations where the defendant used mass-marketing to target victims of
the offense, but applies in any situation where the offense itself was committed through mass-
marketing.
The Fifth Circuit recently rejected the same argument that defendant maintains here, and
distinguished the case that defendant relies on in making his argument, United States v. Miller,
588 F.3d 560 (8th Cir. 2009). In United States v. Isiwele, 635 F.3d 196 (5th Cir. 2011), Isiwele
hired a recruiter to engage in a campaign of face-to-face marketing which was intended to reach a
large number of people. The recruiter gathered individuals’ Medicare and Medicaid information
which she then sold to Isiwele, who used the information to claim reimbursement from Medicare
and Medicaid, falsely claiming that he had sold these individuals wheelchairs. The court found
that although the victims of Isiwele’s crime were Medicare and Medicaid, the enhancement for
mass-marketing applied, citing previous Fifth Circuit case law:
The plain language of the Guidelines forecloses [the defendant’s] argument thatthe mass-marketing enhancement does not apply to his conduct. The mass-marketing enhancement is applicable if an “offense . . . was committed throughmass-marketing.” U.S.S.G. § 2B1.1(b)(2)(A)(ii). ‘Offense’ means the offense ofconviction and all relevant conduct under § 1B1.3 (Relevant conduct) unless adifferent meaning is specified or is otherwise clear from the context.” U.S.S.G. §1B1.1 cmt. n.1(H) . . . . (emphasis added).
Isiwele, 635 F.3d at 204-05 (quoting United States v. Mauskar, 557 F3d 219, 233 (5th Cir. 2009)).
Here, where the defendant utilized telemarketing to accomplish his criminal offenses, the
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application of the mass-marketing enhancement is appropriate and defendant’s objection to its
application should be rejected.1
Further, the defendant urges the Court to find that the “proper scope” of the mass-
marketing enhancement is limited to “consumer fraud” crimes in which certain offenses
committed through telemarketing receive increased penalties. Defendant ignores the fact that
Section 1834(a)(17)(B) of the Social Security Act, 42 U.S.C. § 1395m(a)(17), prohibits suppliers
of durable medical equipment (DME), like himself, from making unsolicited telephone calls to
Medicare beneficiaries in an attempt to sell them items covered by Medicare Part B, except in
situations not applicable here. In fact, Section 1834(a)(17)(B) of the Social Security Act, 42
U.S.C. §1395m(a)(17)(B), specifically prohibits payment to a supplier who knowingly submits a
claim generated pursuant to a prohibited telephone solicitation. The purpose of the law is so that
Medicare beneficiaries are not pressured into buying items they neither need nor want and that
taxpayers and beneficiaries are not stuck paying the tab for unnecessary items. Thus, although
the considerations underlying the prohibition on telemarketing in the Medicare context are
slightly different than those which have lead to enhanced penalties for telemarketing crimes in
1 The defendant acknowledges the decision in Isiwele. Omitted, however, from thedefendant’s Sentencing Memorandum, is mention of the fact that the Isiwele court acknowledgedthat the circumstances of its prior case, United States v. Mauskar, 557 F.3d 219 (5th Cir. 2009),were dissimilar to Isiwele’s, something that defendant makes much of in his SentencingMemorandum in attempting to convince this Court not to follow Isiwele. Def.’s Sent. Mem. at 3n.2. The Isiwele court found the reasoning of Mauskar instructive: “[i]mplicit in the Mauskarcourt’s holding is the determination that the mass marketing efforts of the recruiters who escortedbeneficiaries to the defendant’s medical clinic was ‘relevant conduct’ constituting part of the‘offense’of health care fraud, such that the mass-marketing enhancement applied to the uiters’co-defendant. We explicitly adopt that reasoning today in holding that the district court did noterr in finding Isiwele eligible for the mass marketing enhancement on the basis of [hisrecruiter’s] face-to-face recruitment of Medicare/Medicaid beneficiaries. Isiwele, 635 F.3d at205.
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the consumer fraud context, the application of the telemarketing enhancement is particularly
appropriate here were the success of the defendant’s scheme depended upon telemarketing and
he engaged in such practices despite knowing that they were prohibited under the Social Security
Act.
B. The Guideline Range Does Not Overstate the Seriousness ofDefendant’s Conduct
Defendant’s primary argument in support of a sentence outside the Guideline Range, is
that the loss table in Guideline § 2B1.1(b) is inherently flawed and overstates the seriousness of
his conduct. Defendant maintains that the loss table lacks an empirical basis, and thus, the Court
should not heed the advisory Guideline range that results from its application in this case. He
correctly points out that the Court, based on Kimbrough v. United States, 552 U.S. 85, 109-10
(2007), possesses the authority to deviate from the Guidelines based on policy grounds, including
disagreement with the guidelines.2
The changes in the loss table contained in Guideline § 2B1.1(b) that have occurred since
the Guidelines were implemented are unlike the crack/powder disparity the Supreme Court
addressed in Kimbrough. As the Kimbrough Court explained, in drafting the crack cocaine
guidelines, the Sentencing Commission failed to account for “empirical data and national
experience.” Id. at 109. Moreover, the Commission itself recognized that the crack/powder
disparity produced disproportionately harsh sentences for crack offenders. Id. at 110.
2 The defendant takes his Kimbrough based argument a step further and maintains that theCourt should determine the appropriate sentence in this case using an empirical approach. Hecites no case law in support of his position, and his suggestion is at odds with well-establishedcase law that outlines the proper approach courts are to follow when fashioning an appropriatesentence. See United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006).
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Such is not the case with the loss table contained in Guideline § 2B1.1(b). In
implementing the loss table contained in Guideline § 2B1.1(b), the Sentencing Commission
“prescrib[ed] ‘heartland’ offense-level adjustments for victim loss” that “[were] based on
empirical evidence that ‘the amount of loss’ was among the ‘most important factors that
determined sentence length’ prior to the advent of the Sentencing Guidelines.” United States v.
Gregorio, 956 F.2d 341, 347 (1st Cir. 1992). At least one court has rejected a Kimbrough based
argument that it should flat out reject the application of amendments to Section 2B1.1 of the
Guidelines absent some actual policy disagreement by the court with the provisions. See United
States v. Sandoval, —F.3d—, 2011 WL 6762659, * 2-3 (7th Cir. Dec. 27, 2011).
Defendant cites to several cases in which courts have held that rote application of the
Guidelines results in offense levels that bear little relation to the conduct being punished . See
United States v. Adelson, 441 F.Supp. 2d 506 (S.D.N.Y. 2006), aff’d 301Fed. Appx. 93 (2d Cir.
2008); United States v. Parris, 573 F. Supp. 2d 744 (E.D.N.Y. 2008). Such is not the case here
and the cases cited by defendant are distinguishable.3 In Parris and Adelson courts were faced
with substantial loss amounts, which, in securities fraud cases such as those, often escalate
rapidly. The relevant Guideline ranges were also increased by a number of enhancements
applicable in such cases where the defendant was an officer of a publicly-traded company. In
Parris, the Guidelines calculation led to a sentencing range of 360 months to life in prison. See
573 F. Supp. 2d at 750. In Adelson, the district court found that the defendant’s guideline range
3 The defendant also cites United States v. Watt, 707 F. Supp. 2d 149, 151 (D. Mass.2010). In Watt, the defendant, a young computer programmer with no criminal history, did notprofit from his participation in the identity fraud conspiracy, but instead created a sniffer programfor the challenge of besting large corporations’ security programs. 707 F. Supp. 2d at 155-58.
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would have been life in prison, even with a substantial reduction in the loss amount based on the
fact that the defendant was late to join the conspiracy. See 441 F. Supp. 2d at 510-11.
The concerns expressed in Parris and Adelson are not present here. The defendant’s
Guideline Range did not escalate exponentially based on sentencing enhancements applicable in
most securities fraud cases against officers and directors of publicly traded companies.
Moreover, unlike in a securities fraud case, where a district court is required to make complex
loss calculation determinations based on the extent to which the stock-price drop is attributable
to fraud, the loss here is directly attributable to the amount the defendant fraudulently billed to
Medicare. Here, the defendant put $2.2 million of fraudulently obtained money in his pocket,
and he is solely responsible for the planning, execution and success of the schemes which lasted
four years and spanned the nation. Indeed, the defendant’s scheme resulted in substantial profits:
the defendant’s adjusted gross income for the years 2007 through 2009 was $823,901,
$1,947,760, and $1,207,688, respectively. See PSR ¶ 60. In addition, the defendant stands
convicted of four criminal offenses: two separate counts of health care fraud in violation of 18
U.S.C. § 1347, the introduction of an adulterated and misbranded medical device into interstate
commerce, 21 U.S.C. §§ 331(a) and 333(a)(2), and one count of money laundering, 18 U.S.C. §
1957. Thus, the loss of $2.2 million dollars and corresponding offense level are appropriate
measures of the severity of the offense.
Moreover, even though some courts have criticized the Guidelines in the securities fraud
context, others have upheld substantial sentences for first-time white collar criminals who had
served as the leaders of major public companies. See United States v. Ebbers, 458 F.3d 110,
129-30 (2d Cir. 2006) (25-year sentence for CEO of World Com was reasonable); United States
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v. Rigas, 583 F.3d 108, 121-24 (2d Cir. 2009) (12-year and 17-year sentences for top officers at
Adelphia were substantively reasonable).
More to the point, other cases involving loss amounts in the neighborhood of those
caused by the defendant have resulted in sentences greater than the advisory Guidelines range
here. See United States v. Naranjo, 634 F.3d 1198, 1206 (11th Cr. 2011) (affirming 120-month
sentence of imprisonment for conspiracy, fraud and money laundering relating to Ponzi scheme
resulting in losses of approximately $2,747,137.47; district court also applied victim and
leadership enhancements); United States v. Romero, 410 Fed. Appx. 460, 462 (3d Cir. 2010)
(unpublished) (affirming 150-month sentence for fraud convictions involving loss of
approximately $1,884,874; enhancements included abuse of position of trust, number of victims,
vulnerable victim, and an upward departure for cause extreme psychological injury); United
States v. Garcia-Pastrana, 584 F.3d 351, 393-94 (1st Cir. 2009) (sentences of 210 months and
108 months for defendants convicted of embezzling approximately $6.6 million from health care
benefit program and of money laundering were not substantively unreasonable; sentencing
enhancements applied), cert. denied, 130 S. Ct. 1724 (2010), and cert. denied, 130 S. Ct. 3303
(2010); United States v. Aenlle, 327 Fed. Appx. 152, 153 (11th Cir. 2009) (unpublished)
(affirming sentence of 84-months for defendant who submitted false claims to Medicare for
medically unnecessary medications where total loss amount equaled $1,048,487); Arakelian v.
United States, 2009 WL 211486 (S.D.N.Y. 2009) (defendant sentenced to 108 months in prison
based on guilty plea to fraud scheme resulting in approximately $4 million in loss; other
enhancements included more that 50 victims, obstruction of justice and leadership role;
defendant received acceptance credit). Thus, despite his attempt to argue otherwise, the
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defendant’s Guidelines Sentencing Range, as evidenced by the sentences in other comparable
cases, does not overstate the seriousness of his offenses.
C. Sentencing Factors Pursuant to 18 U.S.C. § 3553(a)
As this Court is well-aware, after establishing the appropriate Guidelines Sentencing
Range, determining the appropriateness of any departures, the Court should then weigh the
sentencing factors enumerated in 18 U.S.C. § 3553(a) and any other considerations that may be
relevant in a particular case, in fashioning an appropriate sentence. Pelletier, 469 F.3d at 203.
All of these exercises inform the Court's assessment of whether to sentence the defendant below,
within, or above the GSR. Id.
(1) Defendant’s History and Characteristics
The defendant’s explanation for his conduct is not unlike other white collar criminals that
have stood before this Court. At the time of sentencing, they urge the Court to find that they are
fully rehabilitated, there is little chance of recidivism, and that little need exists to punish them
because of the chaos to their working and family lives that has already resulted from their crimes.
In the defendant’s case, those arguments understate the gravity of his offense.
The defendant did not commit one isolated criminal act. Over the course of the scheme,
in order to bill Medicare for the medically unnecessary arthritic packages and penis pumps, the
defendant made thousands of claims to Medicare that he knew were false. He claims in his
sentencing memorandum that the highly regulated nature of the Medicare program somehow
contributed to the commission of his crimes. Def.’s Sent. Mem. at 20-1. This statement is false
and indeed, the defendant’s continued reluctance to acknowledge his knowing violation of the
law, provides ample basis to reject his request for a sentence below the Guidelines range.
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In pleading guilty, the defendant admitted to knowing that telemarketing Medicare
beneficiaries was prohibited. During the investigation of this case, former employees of the
defendant’s informed investigators that the defendant was aware that cold-calling Medicare
beneficiaries was against Medicare regulations and specifically instructed his employees never to
tell Medicare representatives that Planned Eldercare was initiating calls to beneficiaries.
In addition, the defendant knew that the waiver of co-payments was prohibited under
Medicare guidelines. Multiple employees informed investigators that they had informed the
defendant that he was required to charge copayments to Medicare beneficiaries. One former
employee reported that in response, the defendant remarked that if he did not waive copays, he
would lose business.
Furthermore, the defendant had a policy in place at Planned Eldercare to bill Medicare for
as many DME products as possible without regard to whether beneficiaries actually requested the
products or had a medical need for the items. Many Planned Eldercare employees questioned the
defendant about this policy and when they did, the defendant typically responded by saying that
“it doesn’t cost the client anything as the government is paying for it, and that the government
would just print more money, so order more.” In responding to Medicare beneficiaries who
contacted Planned Eldercare to complain about receiving items that they did not order, defendant
stated “[i]f you don’t need them, put them under the sink.” In sum, over the course of the four
years he committed his offenses, the defendant repeatedly, knowingly, violated the prohibitions
on the way in which DME operators may operate in order to accomplish his scheme. He billed
Medicare for DME products that individuals did not need, order or want, simply to line his own
pockets.
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The defendant’s history and characteristics are adequately detailed in the PSR prepared by
the probation department. As a supplement to the PSR, defendant has submitted numerous
letters and an affidavit from Bushan S. Agharkar. This extended discussion of defendant’s
mental health and his treatment as a child does not provide a justification for sentencing him
below the Guideline range – this is not a case where the defendant suffered from a reduced
mental capacity during the commission of the offense. At the most, defendant’s psychological
portrait explains his greed and provides the motive that lead him to commit thousands of criminal
acts over the course of committing the offenses of which he stands convicted.
(2) Nature and Circumstances of the Offense
Medicare fraud affects every citizen in the United States. Waste, fraud and abuse take
critical resources out of the health care system, and contribute to the rising cost of health care for
all Americans. Here, the defendant has admitted to receiving approximately $2.2 million in
fraudulent payments from Medicare. The defendant knowingly ran his multimillion dollar,
nationwide, company in violation of Medicare law and regulations that would have prevented the
schemes’ success. He billed DME equipment to the Government and then sent beneficiaries
packages of items they did not want, need, or order. He billed Medicare for penis enlargers that
he purchased from X-rated websites and billed them to Medicare as Medical devices. Moreover,
he created inserts to the pump packages that falsely instructed beneficiaries on the medical
benefits of repeated use of the items.
Although Medicare is the true victim here, the defendant’s actions had wide-ranging
impact on many, many people. The investigation into defendant’s practices came about because
many beneficiaries, or their family members, took the time to complain to, among other entities,
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the Centers for Medicare and Medicaid Services (CMS) about the fact that they had received
items they did not want or order. Beneficiaries often expressed concern and real agitation at the
fact that they had received boxes of items that they did not order. Many were anxious concerning
whether the billing of these items to their Medicare numbers would impact their future receipt of
DME should they need it. Many beneficiaries took steps to attempt to return the items to
Planend Eldercare, often times paying for the postage out of their own pockets. Others report
spending large amounts of time on the phone attempting to reach someone at Planned Eldercar in
order to arrange to return the items.
Indeed, interviews with former employees and beneficiaries suggest that defendant
received hundreds of complaints each month from beneficiaries about the fact that they had
received items they did not order. Some beneficiaries that received packages from Planned
Eldercare lived in such small apartments that the large boxes they received actually impacted
their living conditions. None of these complaints made an impact on the defendant, however,
and he continued his unlawful business practices and reaping the profits. Thus, the sentence
imposed by this Court must take into account the loss to Medicare, the impact on the nation’s
health system caused by the defendant’s conduct, and the impact that the defendant’s actions had
on the hundreds of Medicare beneficiaries of whom he took advantage. For all of the above
reasons, the Court should reject defendant’s suggestion that a sentence below the Guideline range
is warranted and instead find that based on the nature of the offense, a sentence at the low end of
the Guideline range is appropriate.
(3) The Need for the Sentence Imposed
Any sentence imposed by this Court also needs to reflect the seriousness of the offense,
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promote respect for the law and to provide just punishment for the offense. Defendant’s conduct
in this case spanned a four-year period, involved three different crimes and reaped him at least
$2.2 million dollars profit. The defendant continued his crimes unabated for four years, despite
knowing that he was engaging in illegal practices and receiving hundreds of complaints
concerning his conduct. His actions evidenced a complete lack of respect for the law and the
public. Any sentence must ensure that he does not commit similar crimes in another context – a
sentence of eighteen months such as he asks for is insufficient to guarantee his continued
compliance with the law. Moreover, a sentence of eighteen months would suggest to others that
the risk of engaging in schemes this wide-spread and long-ranging is worth taking. As detailed
above, many courts have imposed sentences in the 100-month range for losses and crimes similar
to the defendant’s.
(4) Restitution
The defendant is under the mistaken impression that the amount of restitution to be
ordered in this case is subject to question. He has already admitted that the loss to Medicare is
$2,210,152. He has admitted that none of the products sent to Medicare beneficiaries were
medically necessary and offers little to support his current claims that if Medicare possibly would
have paid for the items, they cannot be included in the restitution amount.
Furthermore, criminal forfeiture and restitution serve two different purposes. Forfeiture
serves to punish the defendant and restitution is designed to make the victim whole. Thus,
requiring the defendant to pay both does not amount in double recovery. See United States v.
Newman, 659 F.3d 1235, 1241 (11th Cir. 2011); United States v. McGinty, 610 F.3d 1242, 1247
(10th Cir. 2010); United States v. Taylor, 582 F.3d 558, 566-67 (5th Cir. 2009); United States v.
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Webber, 536 F.3d 584, 602-03 (7th Cir. 2008). In fact, as this Court is well aware, the
Mandatory Victim Restitution Act requires the Court to order restitution in this fraud case
without regard to forfeited funds. See 18 U.S.C. §§ 3664A(c)(1)(A)(ii).4 Accordingly,
restitution should be ordered in the full amount of $2,210,152.
III. Conclusion
Based on the foregoing, the United States respectfully requests that at the time of
sentencing the Court reject defendant’s request for a sentence below the Guidelines range and
impose a sentence at the low-end of the Guidelines range that appropriately reflects the factors
articulated in 18 U.S.C. § 3553(a).
Respectfully submitted,
PETER F. NERONHAUnited States Attorney
/s/ Dulce DonovanDULCE DONOVANAssistant U.S. AttorneyUnited States Attorney’s Office50 Kennedy Plaza, 8th FloorProvidence, RI 02903(401) 709-5000(401) 709-5017 (fax)[email protected]
4 The case cited by defendant in support of his contention that his restitution order shouldbe reduced by the amount the Government has forfeited, United States v. Ruff, 420 F.3d 772,775-76 (8th Cir. 2005), was not a fraud case and involved restitution going to a law enforcementvictim.
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 9th day of February, 2012, the within UnitedStates Sentencing Memorandum was electronically filed with the Clerk of the United StatesDistrict Court for the District of Rhode Island using the CM/ECF System. The followingparticipant(s) has received notice electronically:
Sara E. Silva, Esq.William H. Kettlewell, Esq.Collora LLP600 Atlantic AvenueBoston, MA 02210
/s/ Dulce DonovanDULCE DONOVANAssistant U.S. Attorney
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