years which he has not begun serving at he is at liberty in the community and the parties i think are in agreement based on the papers but he does not pose either a flight risk or a danger to any person or or of the community in general so we're really here to talk about the substantial ness of the questions that we've raised i'm not ready to argue the whole appeal but i think we have identified seven questions actually all of which are substantial and think the government's main argument and i hope i did file a reply brief late on i mean within the time but late thursday night so i hope you got a chance to see it the government's basic argument is well there was overwhelming evidence and so even if there or a few mistakes made at trial the evidence they wouldn't need to reverse on with conscious avoidance instruction that's your principal that's one of your principal argument right there was no factual basis for it it's a pretty tight rule that we have to both the government has to show both that we've denied knowledge on a on a material issue and that there is a factual basis to show not just that he's deny knowledge but that he's taking steps to  where more or less the set of facts exists but there's not much evidence or a basis but there is some reason to believe particularly when the defendant  three days your honor he was really really well cross examined in those wide latitude given much wider than my examination of certain witnesses to the examination of him and in that he you know he admitted he wasn't supposed to be doing this dentistry he knew that but he had nothing to do with the billing and with and with the fraud he was getting one hundred transporting cash to him from new jersey well that was he was cross examined thoroughly on that and that was that was that was cash to pay salaries to other as his understand was that was cash to pay salaries to other employees strange way to pay salaries and then of one of the guys from peru he barely speaks english you know he really doesn't speak english i always communicated with him in spanish he is what may seem strange to you and to me i don't think seems strange enough to rise to the level of criminal the patients come and they have  condition is terrible they're asking for money there are all sorts of different red flags on the record that he disclaims any real knowledge or he doesn't he doesn't disclaim knowing the conditions of the patients he examined the patients i don't he disclaims knowledge of the billing procedures he disclaims knowledge of the purpose of those payments and again there's there's seven issues i mean even if you're not inclined on the conscious of wouldn't let me move allowed to figure out that at the at the closing argument counsel for the government had a huge blow up of one text message where he names of insurance companies and there's a minute delay from the response from the when the text message comes from dr dick in jail who no one denies was involved in the fraud and the response from my client the we don't know the context of those messages he testified about it but there's a finger on the scale of his testimony testifies for three days but he's not allowed to examine the officer who went and grabbed those messages and we don't know what else was there now that raises a substantial question you know under rule four  technical matter it also when combined with the other things that we put in our brief i see my time is out raises substantial rate is enough that it would have led to reversal if we had if we had had one of those those mistakes thank you very the morning may please to court alexander lee for the government the defendant mr vargas was convicted in less than three hours by a jury of all counts and despite of this conviction the defendant's now asking the court to reverse the decision of the district court and give him bail pending appeal we don't believe the defendant has met his burden to prove by clear and convincing evidence that there is any substantial question much less a question of the actual predicate for the conscious avoidance instruction yes your honor i think the defendant is raising two separate conscious avoidance issues quite issues one the fact of the kickbacks and one with respect to the health care fraud with respect to the kickbacks i think it's pretty simple there testimony by catherine ramos the biller that the defendant accompanied her on trips to pick up cash from the dentist dr dick and joel that the cash was intended for the purpose of pang both the recruiters and also the patients that both of them knew that that was the purpose that they would count the cash in the car that they would transport the cash back to the clinic they would give the cash to anna jones the receptionist who would actually make the payments point you mentioned the condition of the patients but at one point that miss ramos even asked the defendant personally why are we making these payments to these individuals who are in such terrible condition i think all of those bright red flags for ms ramos were the exact same flags for the defendant and he either was aware or should have been aware of the kickbacks with respect to the health care fraud i think the defendant's argument is that he wasn't aware of the bill and he didn't have anything to do with the billing but i think the there was substantial evidence at the trial that in fact the defendant was writing down the identity of the health care insurers membership card numbers on the charts this is shown in the undercover operations that the defendant was engage in text messages with dr dick in jail including the one that we've identified told the four of them that he was having problems with medicaid the medicaid was asking for the charts and ms ramos testified at the trial that that to her was a bright red flag that something was going on with medicaid that something was wrong with the charts or i think combined with the fact that the defendant was personally writing down operations procedures that were not completed that was shown as a medical yes your honor your of messages including the text message that was very significant because it identified the health insurance companies in the text message by the defendant frankly it's not exactly clear to me what the purpose of this intended cross examination would be it appears from the reply brief that the defendant would have wanted to to argue that the search was somehow incomplete or missed materials or perhaps even challenge the authenticity of the of the critical text message the district court held when this argument was presented that all of these are evidentiary questions that should have been raised prior that should not have been saved for the moment to be argued in front of the jury that that wrist confusing the issues and confusing the jury and going down a fishing expedition particularly when the counsel for the defendant acknowledged to the district court that he really had no basis for challenging the diligence or the scope of the search that was performed by special agent k so your honor we really don't believe that there are any substantial issues certainly nothing warranting reversal or a new trial and unless the court is any further terms of the briefing right if if bail were granted pending appeal we would do it much faster i mean we'd be you know if you ordered if you were to bail pending appeal and me to get my briefs in sooner we would definitely do that and to work the obviously under the circumstances will try to shoot susan as quickly as possible thank you very much