legally incorrect it was factually unsupported and was also worded in such a way to raise partially incompletely issues concerning the idea of deliberate ignorance there are u made by the government in trial if you look at the two instructions you can see there are critical components of the law that are contained in the powder that are not addressed in the instruction given to the jury oh the pattern plainly and simply states that you know the jury may find the defendant had knowledge if you again the jury find the defendant deliberately closed his eyes to what otherwise would have been obvious to him those facts are some raised over those concepts are somewhat raised in the homemade instruction but not in a way that makes it clear to the jury what the law requires of them to consider the next part of the pattern critically talks about knowledge established merely by negligence carelessness or foolishness that concept is completely omitted those concepts are completely omitted from the instructions that the district court gave to the jury so in other words the jury was not told has some plausibility where we ought to be embracing it or not is another matter but i think i we can accept that this is not the equivalent of a deliberate ignorance instruct he was going a different direction well so what when you say to the head why is court said i can't stop him from arguing about deliberate ignorance so again respectfully i would submit that although it's not turned a deliberate instructed liberty gets instruction by the district court it's more than just a circumstantial evidence you know but the reason any kind of instruction with regard to a defendant contriving not to learn about what was going on in a criminal case is still error in this case because there was no evidence supporting that instruction there was no evidence supporting the idea that anyone had a to any defendant had attempted to eliminate evidence ok that's what the instruction said that an attempt to eliminate or minimize evidence could justify an inference of it there was no evidence of that whatsoever what makes it harmful  makes it even more harmful is that there was testimony that in other defendant not on trial had shredded some files he was not on trial for this matter at that time he pleaded guilty and so here you have an instruction that talks about attempting to eliminate evidence which didn't apply to any of our defendants and implies that that could be enough if you look at the second paragraph of the instruction given to the the actual instruction given to the jury it says attempts to eliminate or minimize evidence of knowledge so we do have harm from this instruction more importantly the second paragraph of the instruction that was given says the law permits inferred expected judgments but it doesn't identify is that the jury's inferred or expected  equivalent of that but i must say it is to me confusing to see what the government says about that and you know i agree judge it i think it confuse the jury because it doesn't say that it should be from the defendant's perspective that's been the role the jury has to this court recognized the importance of the defendant's ability to present evidence to make it it tended they gave his guilt in this case what we discovered was in arizona two of prepared a char that was passed out as a part of our brain with record cites showing the similarities between the arizona enterprise and the used in enterprise and so under doctors and the evidence in this record is clear that doctors have a tendency not to be good businessmen they don't read documents they let other people run their businesses administer their offices and that's what these intent and now by showing that and to be a viewer a savage are now in four or four be normal considerations this court and in many other circuits have said that when said said that this evidence wasn't reliable because there was no conviction but the supreme court has said you don't need a conviction to offer other crime evidence and have sent so what we have that the dissimilarities that an arizona they've got a stamp a signature stamp that was used on checks that the scope of the only thirteen hundred claim versus thirty nine thousand claims that the amount of money was small in comparison to houston compared to the similarities in the scope the opening the clinics hiring doctors falsifying patient records the tests that were being partially billed were identical nothing shows a to similarity in scope of the of the two conspiracies so i start looking evidence showing that these men were the best comment in the world that they got innocent doctors to commit crimes and because he did testify and say i didn't do this i didn't know what they were doing i really see the bank accounts guy relied on them to do it that's what happened in my other clinics that somebody else did the banking somebody else submitted the bills somebody else reviewed these things testimony it would have been over in very simple and straightforward this is what those men day and it was identical to what happened here i ten and we should have been allowed to present that testimony testified that she acted in a way to to either deliberately ignore what was happening although of course the court did not state the instruction as delivered i paid to bring the patients to the clinic not that and above gumi and knew that the money was then in turn paid to the patients as well ms a funny and testified that he believed that initially that the money given to montgomery was to bring the patients there the problem with this inferred expected judgments instruction is that the jury can take that instruction apply and say that she should have known that or if the judgment would be inferred upon her that she should have known about the the totality of the conspiracy that the money was going in turn to pay the patients but there was no evidence of that she did not testify there was and so there was no evidence to support giving that instruction as to misbehave she received a fifty one month sentence she earned forty five thousand dollars during her involvement in this the four the one year that she worked at this at these clinics that sentence was substantive y unreasonable she had no control over the of her job duties she had no control over what anyone else did she the benefit she received was of course unremarkable and so that was why a minor role reduction should have given been given to her so procedurally a minor role reduction was appropriate especially after the comment seat a three b one point two the district court was fixated on his belief that she had a central role but that's not true there were four other technicians that work there two of them h s in v t also cash checks they did the same things that she was accused of doing they were not charged at all the district court said well they're not before me they haven't been charged so i can't consider that but no but you can you can consider them as to her role her overall role in the conspiracy and whether she deserved a minor role reduction further you could consider underneath the thirty five fifty three the disparity in sentences yes of course those two people were not sentenced at all because they were not brought before before the district court but the district court can't turn a blind eye to their existence and secondly the district court sentenced the doctors martinez and simmons to twenty eight months and fifteen months respectively while they were responsible for getting the medicare numbers they were they open under their names to back accounts miss bigamy did neither of those things for her to receive fifty one month was too much was too much the she had no involvement in the medicare billing this the government brought a medicare fraud conspiracy charge to trial she was not involved in medicare billing at all she had no idea no one testified that she had any idea at the extent of the billing or that two point six million dollars was taken or how much anyone was  seeding as as a result of a conspiracy but more importantly she wasn't involved in any of the medicare billing and so fifty one month sentence for someone in her limited role was too much and to continue to hard to believe that she had an essential role was factually i don't think correct but more importantly the sentencing commission which promulgated three b one point two and amended the comment the notes note see specifically did that because the sentencing commission believed that this minor role reduction was being sparingly given and that wasn't the intent and again furthermore the sentencing commission made clear that  being sensual to the to a conspiracy or essential to a crime is not supposed to be a limitation to giving this this reduction the important point is that if he had if the district court had given that reduction her sentence would have been forty one affect the legal heir the district court committed was a misunderstanding the three b won't point to its applications in the notes because being essential is not to is not a roadblock to receiving this reduction the district court also like i wrote of my papers unfortunately believed that she had some sort of familial connection in my opinion based on her ethnic her ethnicity because she the district court to her asked whether she was related to anyone else in the conspiracy and the only question that the descriptor to that question ten one else was who just before the district court sentenced to eighty seven months to just report ask her goes in are you related to any one of the ghost and said no i'm not no one in this are you related to anyone else in this in this case and he said no i'm not and then he turned to mr magoo me and asked the same question and she said no she's not there was no purpose asked asking that question because the pre sentence report indicated no familial connection with anybody to me in a packet had this  sentence her very limited role and the very short sentences given to the other defendants who had well two of the other defendants that had in my opinion more significant involvement in this were more essential to this conspiracy so i asked that her convictions be reversed and her sentence  intentionally join this conspiracy the government is going to have some explaining to do they're going to have to explain to you why patients were paid to lie to the doctor that they saw about their symptoms and they were told not to tell the doctor that they the patients were being paid if the doctors were part of the conspiracy why would they have to do that and why did dr martinez signature have to be forged on the on the application for the medicare medicare application you can see that it's benjamin and you can see how it looks if you flip to the next page this is a government exhibit supporting the money laundering charges allegedly and you can see that that is clearly not the same signature it's be and it's completely different in a benjamin there in any flip to the one underneath it and that's a third person signature so it why would they have to do all of those things if in fact their doctors were members of this conspiracy your honour's is definitely had a lack of evidence just to prove beyond a reasonable doubt that dr martin is intentionally join in agreement to violate the law and there proof that dr martinez knew that fraud was being committed in both of those things would have to be shown beyond a reasonable doubt supports all three of the convictions because they're all interrelated the conspiracy to the evidence supporting the convictions for all four defendants and i'd just like to highlight with respect to mr martin dr martinez on several points first the patient files showed the large majority of patients were coming in complaining of neck or back pain yet there was zero treatment provided for those conditions mr martinez says the dr martinez in reviewing those files would be able to conclude and should have concluded that these clinics were not in fact in the business of practicing medicine second his signature was on order forms for rectal tests which were not being performed the record shows that they were not being performed there's a testimony of the government's surgeon dr snyder who testified that here a few two hundred  the files yet these patients themselves testified they had not undergone such procedures those dr more to suture mean that he was the one who is supposed to conduct a good test or just that he ordered that he was approving the test  because the evidence was that he was merely reviewing the files and that was a suspicious circumstance that should also that also supported an inference of actual knowledge in that martinez was reviewing the work of dr and when who and there was no innocent explanation suggested for why that would be necessary particularly when the when is there in the clinic he holds himself out as a extraordinary they require significant preparation they're intrusive they're uncomfortable martnez as the other doctors knew that these clinics were not prepared to perform these procedures and indeed dr simmons acknowledged that in his interview with special agent dmards when he said yeah this is not the kind type of tests that a family clinic is set up to to  do so and just to close the loop further martinez's signature was on a number of the patient files where these rectal tests were mordred and i refer the court to government exhibit one hundred and twenty four b which is that pages for three of the three seven of the record it lists the two hundred seventy seven patient files that dr snyder reviewed where rectal tests were ordered and lists the name of the physician who was on those order forms you'll see all three doctors on that list and martina's on a number of them in addition the patient files  show his signature on his forms approving the rectal tests which he knew were not performed they were forced a lot of them were or for back or neck symptoms yes yes your honor and also ordered for cheap complaints that are to ordered for in office diagnoses that had nothing to do for example camberley rogers is diagnosed with nocturia which the evidence the trial explained was excessive your nation at night she is given a rectal test there are patients who come in complaining of back and neck pain they are given rectal tests and more over their patients like mary reader who was explain what was going on to the doctors enough to say that they had been corralling urged to go into doctor to complain of certain things we don't dispute that the patients themselves who are no but we're not telling the doctors that they were had been paid there was no evidence that there was that access or evidence i guess is testimony that mr zimmerman or some i was talking about this in the briefing at least that they were told not wouldn't be surprising that the clinic operators were trying to present a facade of an operating clinic you have the danger of an investigator coming in it makes sense that the payments are not in the clinic that there are patients physically in the clinic that there are physical files so to the extent some stuff was hidden that is consistent with the plan to try to defraud medicare with respect to these doctors even though the patients may have been lying to the doctors about their conditions nonetheless doctor when who saw all these patients would have recognized that these conditions were not accurate furthermore with respect to the other doctors the tests that were ordered didn't align with the complaints that the patients are coming in with we have a lice johnson for example who comes and complaining of back pain he's given an allergy test we have again these rectal tests for patients who have no rectal problems or symptoms that would justify that test and dr snyder explains why these tests are done the kinds of patients who need them those are not the patients who are walking in the door here and the files do not reflect that so the files themselves support a finding of actual knowledge and i've mentioned some of the mentioned the suspicious circumstances like in particular they're reviewing other doctors for no legitimate reason but also the fact that these patients none are referred by a primary care provider despite the fact is dr snyder testifies some plants require that that's a page twenty eighty two every single one of these patients happens beyond that of care and these doctors are getting paid a lot of money now  even martinez who is being paid essentially three thousand dollars an hour one of the defense witnesses dr whitten testified that when martinez had been working at u t southwestern he was making two hundred twenty to two hundred forty thousand dollars a year at three thousand dollars and that's at page two nine three nine to forty at three thousand dollars an hour don't have to work eighty hours to make up the hours and he's making this amount of money that's how we're doing how much he's making per hour i have no way to measure whether that amount per month is out of line to bushier if you had basically what you told us about but somebody was getting paid at some other location of two hundred fifty thousand dollars a year and did you have anything this is an unusual arrangement you got encourage the doctors to do it and you have a different view exactly what's going on but visually gentleman you got to come up enough money encourage him to come up and  of money let me know that the cabby out that witness was not asked is that reasonable in the context of a doctor reviewing another doctor a doctor flying several hundred miles to be medical clinic he was talking about just generally a director of a medical clinic but even if taking your points are that there was no direct evidence that this amount was unusual this court in farsi and i noted without again any specific evidence that i believe there was seven thousand dollars a month that that amount of money that was paid to a doctor for some really reviewing files was a factor that the jury could consider in supporting a finding of actual knowledge you know there's a testimony  abortion i saw that number in there but i didn't sure it may have been based on evidence that there was an id as to true but that being out of line but the the opinion doesn't mention that testimony so i can't make that assumption that there on the weekends when he was there but that the fact he was not there physically when marketers who are openly wandering the hallways doesn't lessen the really compelling inference of actual knowledge here because he is reviewing the same files which show the mismatch between the patient complaints and the test orders the utter lack of patient care that orders for tests which are not being performed he's also got a sweet deal in terms of his the money he's making and even putting that aside he admits in his interview with agent  he has signed blank checks another factor that the court and in parson my beliefs have suggested is a is a relevant factor and that additional facts that would support support this inference of knowledge with respect to martinez and and the other doctors the applications that they fill out their enrollment applications where they fail to disclose that actually they make false statements that there are no managing employees there are no other doctors that they are doing the billings the jury recently could infer that they knew about what they were signing the judge instructs the jury that there is a presumption that a person commits to what he signs and there is nothing to overcome that presumption even the defense witnesses who talked about how doctors don't always read what they sign they were talking in the context medical practice there was no evidence that doctors routinely signed signed forms when they have no existing relationship with these entrepreneurs  and then finally the suspicious behavior of simmons and martinez once investigation gets going simmons closing the practice or closing his bank account two days after the search martinez sending or the letter that from our chain as notifying his patience that is closing the practice within the same month that medicare sense of prepayment notice now to be sure there could be other  drawn from those actions perhaps there's an innocent explanation but the evidence here must be fewer of course in the light most favorable to the government and if the evidence as a whole we support that shows not only sufficient but indeed overwhelming evidence that martinez as well as the other doctors knew exactly what was going on here ask about doctors when there was evidence i thought that he had basically the same role was seeing patients there was operating by himself and then at some stage he falls know that medicare may may have a lot of it and the timing what i'm referring to is that you know when it was seeing patients and medicare and medicare was being built under his number at the first clinic jefferson that closes immediately peace opens and the wind is still seeing patients but the bills aren't going out under his number they're going out under martinez and simmons that piece closes and southwest opens and new wind picks up and starts the bills are going again under his number although it's not under his name he's now at southwest rather than his personal name so from that chronology the jury could and fur that the reason that martinez and simmons were brought in and that the bills are going out under their name was that they were concerned about using the wind too much even though he was the one that although i believe his mr remember which turned it was talked about it being essentially identical in fact there were significant differences between for example junior doctor reviewing more senior doctor patients being not being referred by primary care provider patients all on medicare and in fact there was no evidence regarding the arizona scheme or no proffer regarding the arizona scheme as to what the patient files would have shown and that makes sense because the proffer was based on an affidavit for a search warrant to search that clinic so there was no information at the time as to what the patient files might show and indeed it's even unclear as to whether that doctor even would have testified dr hunter there was no proffer that he would  charge the doctors and that in some statements that they did not consider the doctors to being part of the conspiracy what was the evidence particularly exonerate two of the doctors in the doctors were not considered to be complicit the only that would then based on the investigator again before there had been any review of the patient files that would show exactly what the doctor knew so we don't without reviewing the patient files there's no way to know whether the files show the obvious indicia of fraud that we have here of utter lack of patient care of these test orders not that mean that he in fact never ordered rectal tests that he just didn't recall what he signed or that he didn't recall signing rectal tests so the proffer itself is weak but more over on the other side of the balance and this is a balancing test and contrary to mr shiners mr snyder suggestion for three is not simply a defense oriented rule of evidence it once a month that gets a district court discretion to consider a number of factors including jury confusion waste of time those are not designed necessarily to protect the defendant or to protect the integrity of the process and here the judge properly consider the fact that for the defense to present this evidence the proffer talks about the investigator who would who would testify investigate himself could not talk about what the doctor said because that presumably would be hearsay there was some suggestion that the doctor would test find that the doctor would be expected to say but there was no proffer that the doctor in fact would agree to testify and as i said mentioned earlier the doctor may well have had a fifth amendment concern that would preclude him from testifying let's turn and to talk about the court's instruction let's do let's let's do that and to follow up on a point you made earlier judge southwick that this was not a deliberate niggers instruction it was essentially a circumstantial evidence instruction and read as a whole which of course is how a court's instructions must be read the district courts instruction here did not allow the jury to convict on a lesser standard or leave the jury with a misimpression of what the correct standard was now the appellants have focused on the phrase inferred expected and you've suggested that would be a point of conversation now we agree that this language is not the clearest expression of what the judge was trying to say the judge was substituting  judge does have broad discretion in fashioning jury instructions we don't think that the judge here gave the jury the wrong either misstated the law or so confuse the jury that the jury would not have understood now let's talk about inferred expected which the appellant's argue would have allowed the jury to convict based on a finding of mere negligence that's not however the natural reading for several reasons one the placement this is a sentence that the law permits and first expected judgments to count as knowledge this in the sentence right before the judge says knowledge to say not require certainty read together what the judge is saying here is that for a defendant to know a fact a defendant doesn't have to know it for certain it's enough of the defendant infers and expects it to be true second expected here is paired with infer now counts as knowledge the knowledge we're talking about here is the knowledge of the defendant again it doesn't make sense for the judge to say that the jury's expectation of what the defendant should have kno defendant's knowledge now again we have agreed that this instruction could have been worded more clearly but it was not an abuse of discretion and even if the jury were confus judge somehow erred the overwhelming evidence of actual knowledge would require the court nonetheless to affirm there's no direct evidence would you agree of the actual knowledge is in all the evidence convict a defendant it must find that the defendant acted knowingly and willfully defines knowingly as intentionally and moreover willfully as with a conscious purpose to avoid the law that is not a negligent st and in her turning its verdict the jury necessarily showed that it did find that these defendants acted knowingly and intentionally me ask you two things about just one was mentioned one of your printed on the other side physically eliminating evidence it's flushing the drugs down the down the toilet it's eliminating evidence of knowledge that's a phrase that comes at least ambiguous because if you had documents in the file that showed knowledge  and you shredded them that's an attempt to eliminate or minimize evidence of knowledge of a grid but the point is that where a defendant does attempt and we would argue that deliberately is built into that where to find it deliberately tries to get rid of or avoid the void knowing about things that the defense otherwise would know just like with the deliberate ignorance instruction that is circumstantial evidence that the defendant in fact i don't disagree that i'm just saying that that could be a jerk and very reasonably take that to mean if someone was trying to shred documents that's a problem and different right there was no evidence that the doctor shredded that was a good man who participated in the shredding and some of the others who were not on trial here but the argument that the instruction was not limited to shredding it was attempts to eliminate and minimize evidence of knowledge and the jury could conclude that planned doctors refused to monitor the billing statements the remittances that they are minimizing evidence of knowledge and that was evidence that in which the jury could align circumstantially to and for knowledge you have a question i've had on this the last two sentences the law permi huge uses that infer root word in the previous initial talking about the judgment not to if he's meet pretty good debate maybe in the jury room about not just whose knowledge are they talking about here again your honor because the instructions have to be read as a whole you all in a slot on the sheet here but in our brief i think it's pages forty nine and fifty which lays out the entire knowledge instruction you'll see that this is the tail end of the judge generally talking about knowledge and circumstantial evidence and talking about how inferences can be drawn from circumstantial evidence and from the judge's wrapping up here and saying of course and inferences have to be beyond a reasonable doubt read as a whole the instructions telling the jury here's how you can infer knowledge but just remember any inferences that you draw have to or beyond a reasonable doubt if you are looking you've just read at only those two sentences i grant there would be more for a problem but again the instruction has to be read as a whole i guess my biggest problem with this instruction is if we approve it in this case we're going to see it again and that's the last thing we need with this instruction well it doesn't mean we reverse it we don't like instruction you do have other argument you didn't want this instruction you tried awful hard to convince judge hughes don't give this instruction and here you need to embrace it and s deliberate ignorance instructions for decades borson two years ago we seem to be perfectly happy with it so i'm not sure what to make of i don't quite mean the language in that case but we can get anywhere with you showing disapproval or just satisfaction i guess i should say well with respect to deliberate ignorance i can just respond to that the court has said there are dangers with deliberate ignorance it should be given in rare cases but  more because these medicare and other fraud cases seem to be coming at a faster pace the circumstances that support of deliberate ignorance instruction probably are increasing too so that may  instruction is being given more often in that the facts and this case is an example there are many cases where the facts would support what this court has said is a proper standard for giving it but even if the is frustrated by the prevalence of deliberate ignorance instructions at least in these fraud conspiracy cases that doesn't necessarily mean that it would need to find an abuse of discretion language in the guidelines we've written on this or at the minimal for the minor participant role no judge is appropriately recognized and was not substantially less culpable than the average participant the court considered montgomery who was one of the marketers to be a minor participant and that was appropriate but did not why was my mchenry so different than she was because he was bringing patients some patients to the clinic she was working in contrast at all three clinics she was checking in the patients she was doing some of the reported tests she was moreover helping to pay the kickbacks which were essential to the scheme she was getting the cash she was taking at least with respect to one record test she played a central ongoing role at all three clinic and it was not clear air for the judge to conclude that she therefore did not merit the minor participant reduction managing that video of the test that was understand he agreed to the showing of that video i'll just briefly touch on the other sensing claims with respect to her charge that the judge improperly considered her national origin and judge never mention or national origin certainly no indication that he based her sentence on her armenian heritage and then finally respect to the subset of reasonableness her sentence was within the guidelines and she's not overcome the presumption that there for it was substantively reasonable does the court have any further questions i'd ask you to affirm the judgments of the district court thank  you if these a court i think a good starting point for the rebuttal to the argument the governor just made is to recall that the government took this statement in the pattern about in the instruction attempts to eliminate and followed it with the sentence that means you can't turn a blind eye that's at three o five two in the record so although the government is here arguing that it's not a deliberate image struction they used it as a deliberate destruction the home that comes from that is that there was no balancing instruction there was no good faith instruction although both were instructed requested and there's no language about negligence carelessness and foolishness not being sufficient i also think it's important for this court to keep in mind that the district court by the time we got around to sentencing clearly recognized had made a mistake dr and with dr simmons and dr martinez were released on bond pending appeal and the standard is this court knows the reason for getting a bond on appeal is that this is a stanch will question in the appeal that is likely to lead to a reversal or a new trial that's the district court making that finding and that's it eight one six six one and eight zero two four eight so i think by the  time sentencing came around months after the trial when the motions for bond pending appeal raised the very issues we're discussing here today the district court recognized that had made a mistake required to serve time after that they are they  because the district court felt the appeal was going to raise a substantial issue likely to lead to reversal or a new trial they have not been in custody bit like a situation though you know they are pending they are pending fifteen and rectal tests that were build the evidence was undisputed and this is it for nine zero two two four nine one two none of those tasks were build in files that dr simmons reviewed zero so the tests that the government points to saying that all these dr simmons should have known none of those were in the files that he reviewed now with regard to his salary the testimony was undisputed at two seven six eight in the record that this was not an unusual salary the other problem with this instruction is it doesn't address as i said earlier this morning that the courtship of the jury should look at it from the perspective of the doctor dr simmons got a acceptable salary he did not know at the time how much work was going to be involved he did not know how long he was going to have to come to visit euston to inspect the files mike the code said it was going to tell him how many files to review and then he stopped working after five months so by the time he realized what was going on he was gone he did not there's no i watched that video of miss bigamy and and as a technician it's clear that she did not know what she was doing in that video but as to the charges as to this jury instruction belong permits inferred expected judgments the jury would take that instruction and infer and expect that misbah gumi and would know that what she's doing in the video was guilty knowledge of a health care fraud conspiracy happening but that's a big leap there's no evidence no one testified that she knew that that for example that activity that shown in the video was then they support that there was no knowledge on behalf of misbah gumi and as to the health care fraud conspiracy specifically even though it's true that the testimony was that she handed money in envelopes to montgomery the law requires us to kickbacks knowledge that the money is used for a new remit renumeration for services related to this to health care but it's not there's no testimony from  that the money that she knew that anna knew that the money was then paid to the patients mchenry didn't testify to that there's a kanya didn't testify to that it would be pure speculation to say that the misleading instruction this inferred expected judgments instruction that allowed an alternative method of finding knowledge had no impact on the verdicts sullivan versus louisiana so for these reasons the convictions of his book should be overturned  and her sentence vacated thank you there's no evidence in the record that dr martinez ever met with patients ordered any tests which i'm not sure how the government was tripping some of that alleged misconduct to him the expert can act expert testimony on contradicted that dr martinez complied with industry standards for example there was no question that there was testimony that the pay he received was reasonable and the four hundred four b evidence would have corroborate this and it compared to what the doctor received in that scheme by these exact same clinic up owners and criminals frankly and let me say also that dr and martine martinez and dr simmons never ordered any test i'm not sure why they're being attributed to having ordered any tests they reviewed what other doctors ordered they didn't order any tests themselves they were limited to reviewing files of patients and of another doctor now be there the question becomes if in the in the government's presentation they're holding the doctors doctors at least doctors martinis and simmons responsible criminally for not looking at the billing records i want to emphasize that there were billing records and  business type records that are were a bailable to be viewed in the clinic what dr martinez and dr simmons were hired to do was to review the medical records not the billing a business records and so to say that they could have i should have looked at them to determine whether or not there was something ironic going on is not accurate i mean it's there that's not what they were after the fact they don't know what happened after that and they're reviewing these files for what purpose they're reviewing for certain percentage of files because they were required to deceive the correct procedures were being followed ok and  see that exams that have nothing to do with back pain or neck are being performed at what was their responsibility if they saw that there was testimony that it at least as far as dr martin is concerned that he wrote notes and told and sent it back to the clinic owners that there were seem to be some irregularities in these particular fouls but that's as much as they were that's only the lardy that they had was just to point out that and they have and believe there is evidence that that in fact was done on a number of occasions so that's what their responsibility was that they were they were reviewing what some other doctor did but they didn't have the authority to order a test order as ordered a follow up test which seemed to be what counsel for the government was implying it was their duty this morning so that's why i'm mentioning that and  a normal for the doctor to be reviewing the other doctors work is that normal yes i mean to to have one doctor if you know other doctors were yes yes you're i believe that that  irregularities that he observed ought to be corrected but he had no authority to tell the other doctors what to do or not to do and he reported that to the people that hired him or was this just make work to pay the doctor  on how you look at it but the fact that he spent when he comes to whitman dr martinez came from dallas to houston he was given a certain number of the files he didn't pick which files would  reviewed the owners left it for him or handed it to and when he finished those his assignment was finished and then he would go back he was paid a salary he wasn't paid on an hourly basis three hundred thousand dollars an hour i'm sorry i thought he was paid three hundred not three thousand dollars an hour now he was he was paid seven thousand dollars a month on a flat salary in a matter how many files he he examined and reviewed and that wasn't up to him sufficiently similar not that should have been the same what's good for the goose is good for the gander and that's what some of the cases say and it should have come and it should have been a jury question of whether how similar it was or a lot the point was l you have the chart that we prepared shows the similarities and there are certainly enough similarities to have met the test in a four four b under under beach him and some of the other older cases that don't require it to be a signature anymore used to say they had to be a signature offense to come in with what dr hunter did in the record hunter would have testified i don't think that's in the record your honor because i'm not sure that anybody got far enough to be able to ask him that question that that's the honest answer that question i don't know but the the main witness would have been the investigator who stopped and got the search warrant there was a search warrant there what there was arrest warrant i'm sorry that there were charges filed why they were dismissed is a mystery we don't know why they were dismissed it was a state court prosecution my guess would be if you tell i had to give you an answer my but my inference would be that it was a federal case and the feds told the state to back off and then somebody decided it wasn't sufficient to take him to the federal court  if i may i see to my red lights on and make one final comment i've made the government said again this morning i think answered the judge southwards question that the evidence is overwhelming if the evidence is overwhelming then the shouldn't have gotten to the deliberate and ignorant instruction to start with and in our brief we requote the exact same exchange that i had sitting at the same standing at the same podium before a different panel of that this court sitting in the same chairs where the judge is asked why what we do we need to do to keep these district judges from keep giving this instruction on deliberate ignorance that we keep saying should not be given except in the rarest of a circumstance my answer remains the same unless you reverse the case they're going to make up things they're going to put their own knowledge in spec they're going to see if they're smarter than the supreme court dissenting judge the judge southwick pointed out something if you don't reverse this case on that you're going to see that again and they're going to say hey if the circuit approved it there's nothing wrong with  statement that says don't give this instruction anymore it's not proper specially when you say there is overwhelming evidence thank you you thank