investigation in which some very astonishing propositions were presented to the grand jury medicare fraud case the two primary propositions that were presented to the grand jury were that he had patients traveling from south florida to lakeland or to tampa florida to receive testing variety of  diagnostic tests and of course the suggestion was that no one in their right mind would travel from miami to lakeland or camp to receive this diagnostic testing  therefore a fraud must have been committed by mr lovelace mr lovelace on did to corporations that were doing that the diagnostic billing to medicare the second proposition that was presented to the grand jury to obtain the indictment is that he was also billing for dead beneficiaries and obviously that caused outrage  and clearly indicated that mr lovelace was committing medicare fraud but wasn't there more than that i mean weren't there also claims being submitted on behalf of doctors who testified that they did not treat these patients or see these patients that you know these treatments never occurred i mean wasn't there more than what you've just described it is our position that those who are two primary reasons for indictment however to answer the court's question medicare has different ways said billing can occur and the billing that mr lovelace was doing was as a group practice so the bills were coming from cornerstone or from some meant and they were for diagnostic testing that was being done and according to the codes can be done by a qualified technician the role of the doctors who was to read the testing and to provide  results there were a number of the three or four doctors that came to trial each one of them was under contract with mr lovelace and was receiving a substantial amount of money fifty to eighty thousand dollars a year for the purpose of reading these diagnostic tests so there was confusion about what the doctor's responsibilities were according to the way the cornerstone and some it were billing they were billing for the diagnostic testing done by a technician and then the reports to be read by a the doctors came to court and testify that they in fact had received their payment their contract payment they didn't have any personal relationship with any of the patients because they never saw any of the patients the diagnostic testing was done by by a technician they were a standard in trial that they were being told that they had read  thousands of reports but the way the evidence was presented in trial if for example you had an echocardiogram and if that bill was submitted and rejected every submitted and rejected and resubmitted and rejected as we saw the evidence in trials many times one service was submitted and rejected six or seven times the prosecution presented that that doctor would have performed that service the six times that the claim was presented so that's why the numbers were so large in reality that that number could be it was a fraction of that number because of the fact that the dr was being asked in court well how many times did you see or read this report and he would say well caution i never looked at three thousand reports but why couldn't a reasonable jury after hearing all of the evidence conclude that your client had engaged  and fraud by submitting things on behalf of doctors who testified we didn't do all of this the doctors testified that they did not do the quantity and they were offended that they had not gotten paid large amounts of money when they were being presented with the idea that three thousand claims had been presented with their provider information and that number had was tremendously inflated by the government and we made every attempt to try to to point that out  i guess i understand what your position is and i think based on your position a jury could have decided it wanted to acquit your client but why wasn't it reasonable for a jury to draw the other position from the evidence we did not have the information and that the government did know that those patients never traveled we knew that that's not what we had submitted and i don't know if the court knows the history but i was local consul in mid september and and the person that was going to try the case that the case was set for october seventh  person that was supposed to try the case filed a motion on october fifth saying he could not come so i became it so i did reenter the best that i could but there were thirty two thousand claims in judge mary day gave us an additional six weeks to get ready so we knew there was something wrong with the billing but the government knew that each one of those people had been treated in south florida as opposed to what they presented to the grand jury that they were traveling to lakeland tampa and the reason why they knew is when they claim to have been submitted they had been paid at the dade county rate which is a few dollars higher than the tampa rate but that was never disclosed even though we continue to ask can you give us the original claims data and the original claims data was what would have been submitted to medicare by mr lovelace's companies and but how do you meet the criteria for newly discovered evidence how is this not a lack of due diligence mr berndt is going to we've kind of divided up that that work but it wasn't available to us we were what would be only thing we could have done is to do that extensive investigation that was later done by the d group as part of the motion premier trial and we just didn't have the time to be able to find all those beneficiaries and the government had that right in their hands they knew that the the amount had been paid as a day county service so they knew that the claims the claim that had been presented had been presented as a service location being south florida because that's how they paid but that was not disclosed to us and my client kept saying i know i didn't bill for services in tampa or lakeland we brought in the billing expert to say that he put in the service good morning your honor to may please the court i'm thomas burns and i represent dr schneider let's talk about sufficiency of the evidence and the motion for new trial on sufficiency we're talking about three counts counts twenty twenty one and twenty two and as patients a l never rendered services that were not medically necessary services that were based on kickbacks forgery assignments from doctors and then the wrong address listed on the claims so there's three ways that we've got to break this down to look to see if any of those theories actually tags my client for these particular convictions the first is if you just look at those first five things this is kind of a classic issue in a sufficiency case where you've got to look at whether it's a reasonable inference from circumstantial evidence or an impermissible speculation the government and we agree that there is no direct evidence that for these three patients that they were dead the services were never rendered that they were not medically necessary that they were based on kickbacks or that they were forgery of science because these are services that were provided by dr schneider herself so then we just have to look at the circumstantial evidence in our possession as well that's impermissible here it's impermissible speculation but you do this all the time so i really don't need to explain that part of the case there's an additional argument of the government raises second part of this where they say well these are coastal claims and because they're coastal claims and because dr schneider had previously misrepresented in our application to make coastal and medicare provider or better medicare entity all of the claims that were submitted by coastal were fraud medicare fraud and we say no that's a misreading of united states against  medina so you'll need to look at that the case and see if who is correct about that are our position is that the difference in our case in medina's the medina involved a charge that that was the misrepresentation here the charges pertain to the specific claims that were submitted so that that's the difference and why you can't get us for for those convictions and then just the six basis was that we had the wrong address on the claims and our position is that that's not materially false within the meaning of the medina case and it's also not something that defrauded the government of anything because what would happen you would just say well you got the wrong address give us the right address and here if the services were medically necessary they were actually provided so actually no harm no foul  i want to point out there's a little bit of a practical significance to why these three counts should be reversed the sentence package doctrine and the special assessments if she gets these convictions reversed that's three hundred dollars back to her our united states against gays and united states against jernigan and those one seem to indicate that hearing is mandatory but the unhelpful body case law some of which i had identified and some which the government had identified said no it's within the discretion of the district court to have a hearing or not ordinarily you would apply the prior panel precedent rule when you've got that kind of conflict and the earliest case that we saw was united states against hamilton fifth circuit one nine hundred seventy seven and that's one of the cases says it's within the district court's discretion whether or not to have a hearing the alternative would be if you were to reconcile these cases i don't know how they can be reconciled they seem inconsistent to me but perhaps when you write your opinion you could address that issue and see what these may please the court john tatty for the united states i'd like to address the sufficiency claim first as mr bowen's burns pointed out the government's primary argument is that under united states versus medina this court in that case held that evidence of kickbacks alone is sufficient to prove health care fraud if the defendant was involved in paying kickbacks before she registered a health care provider and then that pattern of kickbacks continued that was the holding in that case with respect to one particular defendant it related to substantive health care fraud not a conspiracy and the pattern of facts in this case fits the same paradigm as that case it's undisputed that michelle knight or paid kickbacks to cornerstone patients before she later registered coastal when she registered kosta like the medina she promised that she would not violate the anti kickback statute and pay kickbacks it's also undisputed that the pattern of kickbacks that were paid in relation to coastal patients continued through the summer and fall of tw which is when the claims in counts twenty twenty one and twenty two were submitted as that pattern of kickbacks continued the government's position is that under united states versus medina there was sufficient evidence to convict the defendant but even if this court does not  pursue that legal reason for upholding the defendant's three convictions there was myriad evidence to support the conclusion that the jury reached and that conclusion needs to be considered in the light most favorable to the prosecution that michelle knight or either did not actually render those services herself that they were based on a legal kickbacks that they weren't medically necessary that they didn't actually occur in melbourne florida where kosta was supposedly located doctors newman were the two other doctors that were the basis for the coastal claims testify that they didn't see any of the more than one thousand patients or bill any of the seven thousand claims that were submitted in their names for coastal dr schneider and mr love place discussed putting a sign outside coastal zone offices in melbourne to make it appear as if it was a real clinic and in the event someone drove by there was additional evidence that any services that doctors that dr schneider rendered for coastal particularly those having to do with vestibular evaluations which was what was billed for in counts twenty four twenty two either didn't occur or weren't medically necessary her and dr lovelace discussed falsifying basic vesti evaluations on july twelfth two thousand and thirteen she texted mr lovelace and this is right before the date of submission for count twenty which was on july twenty second of two thousand and thirteen i'm willing to give up two to three thousand dollars a week if they meaning the technicians at marion south florida are willing to write dizzee v n g and the chart on forty to fifty patient notes a week she also talked about working these oldies as much as you possibly can and say i'm worried your brain function those are references to false tests for vestibular of valuations for audiology tests furthermore as mr brewer noted all of these patients were located in south florida and the government's exhibits that indicate the addresses of these three particular victims in this case aronofsky linda sero and klaas indicate that they all live in miami it's irrational to conclude that they would drive up the coast to melbourne florida for what isn't basic medical tests the only reasonable conclusion is that if these tests were taking place they were taking place at an airfield and they were medically unnecessary as the three government witnesses who ran the mare fee clinic testified saying that it was basically a factory for illegitimate billing for unnecessary tests that would just result in the highest bill bulls they could possibly produce so when you take all of that evidence together it was certainly reasonable for the jury to conclude based on all of the circumstantial evidence that the these particular counts were based on either illegitimate billing or services that were not rendered and therefore this court should affirm those three verdicts turning to the allegations of falsified medicare data i think it's first important to consider the context that these claims are being raised first with respect to mr rohrs argument there is no sufficiency claim here this claim is raised as an appeal of the district court's denial of a motion to dismiss the indictment as this court has held dismissal of dismissal excuse me as an extreme sanction and it's only favored in the most egregious cases there is no allegation that special agent blood seller there's no evidence to support the allegheny allegation that special agent bledsoe who was the agent to testify deliberately provided incorrect or misleading evidence to the grand jury for one this court is held in flanders that had it juries across the board guilty verdict in this case demonstrates that there was probable cause to charge the defendants with the offenses and that any allegations of misconduct before the grand jury were harmless so this court could resolve that claim just solely qualified as a medicare expert there is no objection to his qualification as an expert at trial talked about how he took the medicare data specifically from the medicare contractor first coast service options that it was read only so there is no evidence to support the by the concept that this was false or fabricated medicare data as the district court held when it deny the motion to dismiss the indictment this was simply a disagreement over the interpretation of evidence a question of fact that fell within the province of the jury finally with respect to the motion for a new trial again much of this evidence goes down to the exact same argument that has been presented throughout this entire case by mr lovelace that somehow the data that the government submitted was false or fabricated and there is one thing that i do want to correct that was said which is that they didn't have the opportunity and i think this was elicited by judge brandt's branch's question that they didn't have the opportunity to contact these individuals earlier that is false as the government's stated and its response for the motion for a new trial interviews of patients and beneficiaries or  the documents from the florida office of vital statistics for the death records were turned over a year and a half to counsel they had the opportunity to track down any of these people or next of kin and get any information that they desired from them they also submitted hundreds of pages of medical records that related to these particular individuals at trial and by they i mean mr lovelace submitted that evidence it simply was not true that they didn't have the opportunity to conduct these investigations and therefore they fail the very first prong of a motion for a new trial which is that this evidence has to be new and the government's position as the district court found is that the motion wasn't even timely as a result you only have fourteen days to file a motion for a new trial based on insufficient evidence this was a motion filed more than a year later based on repackaged claims that had been presented to the court district court time and again had been presented to the jury and the jury necessarily rejected through its verdict and unless this court has any other questions we would urge you to affirm the judgment of the district court thank you familiar with medicare and medicaid care would a payment would necessarily involve code that he was going to overrule that objection so it is far as is time to to interview your honor i did not have time to interview anyone we started six weeks after i felt very comfortable becoming a local consul i ha been practicing twenty five years and i had had many fraud cases including two medicare fraud cases and the lawyer that was going to do the trial was a relative of mr lovelace so i felt very comfortable that he was going to do the best that he could and i was going to be around for whatever needed to be done when we had the six week period of time of the thirty two thousand claims to look at it was just physically impossible and i filed i think at least two  more motions just asking for more time that i would like to be able to do some of those things and i did not have the opportunity to do that however your honor when  did testify he said that the claims data that he was presenting was complete and that part of what had to be put in the medicare claim form was a required place  where the service had occurred and he talked about reimbursement codes and how they were different furred dade county as opposed to tampa and he still testified that  from what he could see the people were traveling from dade county to tampa or lakeland to receive the services so as a medicare expert and having available what was paid for these test it is our position that he deliberately misled the jury into thinking that these patients had traveled this distance and it's clear that from everything that is an evidence that they were paid the  the claims that were paid were paid at the south florida rate and not at the lakeland tampa rate you know just a couple are your honor so just a couple points on the difference like i said which the government didn't i think address was that that involved a charge where they said the misrepresentation was the application here they're saying it's the claims themselves and that's that's what we're we're saying is different and an authority that you can look at for that proposition although it's in the wire fraud context or yet wire fraud context is the tackler decision i cited the initial tack a lot of decision but there's a rehearing opinion where they basically say if there's a disconnect between the charges and the and the verdicts you can or you should reverse that that conviction and then in terms of the circumstantial evidence  we're really saying you proved this set of crimes but it doesn't necessarily mean that we we did these crimes and that's why that circumstantial evidence is insufficient there's been some talk about the newly discovered  evidence tests on the motion for a new trial if you look at the record this that the prior trial lawyer had a mental breakdown a lot of that stuff is under under seal but he had a mental breakdown and then his bear was put in this very difficult circumstance where it's like well you haven't been you know in the first chair but now you are first you are second chair but now you're first chair here have a very complicated medicare fraud trial in a month and then there was like a short extension so she really didn't have an