cardiologist eighty years old from florida his defense of trial was he did not know or intend to submit any false certifications case went to trial on that issue and of course he was convicted we have one issue arising out of the trial and three somewhat interrelated issues concerning the sentencing all having to do with sentencing guidelines calculations zero and i before it proceed i do want to introduce at counsel table mike my co counsel for this appeal norris so before i turn to the sentencing issues briefly on the jury instructions unless of course you want to spend more time on it the willful blindness instruction concerns a particular way proving the knowledge element which of course was contested element at trial ask you a question on that or since this is a commonly used yeah instruction and the way that it was given all of the commonly used way that it's given as far as i can tell i think it's a little premature to say commonly because these of so called model instructions for the third circuit are only a few years old well they are not that different from the model instructions or the pattern instructions that i've seen in other places as well yes but even putting that aside there are lots and lots of references throughout the instructions that emphasize the jury's obligation to make all the findings beyond a reasonable doubt and given our obligation to read the instructions as a whole how do you address the prevalence of those  that language throughout the instructions of course throughout the instructions the jury is told that it must find all of the elements of the offense the under result out certainly not all the findings that a jury might make even a criminal case have to be made beyond a reasonable doubt what the jury has to understand is which ones are elements and that those must be found beyond a reasonable doubt and yes as we said in the brief there are many places where the instructions given in general of this instruction is given as a special circumstance it's given as an unusual rule it's an unusual way of proving an element it's not an element or a way of proving an element of the jury has to understand that it's not an affirmative defen stand for the proposition decided on the issues presented in which the court states it's deciding how many about the model jury instruction because he it is a model it's been used for quite some time i mean there is a process involved in proving the court and that's the first statement in the in the introduction to the manual and that they are always open to challenge in a particular case when an error appears when it appears that there is an error even in the model instruction phraseology they don't carry any special weight if that's the suggestion behind your question that there's some kind of presumption that they're correct because they're put together by what is in fact a fine committee we're going to be has huge dozens of things to possibilities other than knowledge of space of mind other than knowledge they're basically ways of explaining to laypeople what is recklessness what is negligence what is ignorance the three states of mind other than knowledge if you find one of those then you may not find must not find willful blindness and this contrasts very sharply to what the jury was told about good faith which is the other special instruction they receive about a state of mind that would negate the element of knowledge in that instruction which is also the model instruction it says if you have a reasonable doubt that these circumstances may exist which are inconsistent with the element then you must not find the element and here by mistake the committee overlooked that and said if you find if you find suggest to the jury a burden of proof probably a preponderance sort of burden if the jury is thinking in those terms but we assume the juries follow instructions understeer the distinctions that are meeting made by judges and the standard is a reasonable probability that the jury was misled but here the language as the limburg first reads as i just explained referring to the district court the government must prove particular fact or circumstance is in the central part of and start the government need to prove that dr time knew of the facts and circumstances if the evidence proved beyond a reasonable doubt yes of deliberate closing of the eyes so putting aside the model charge let's talk about the target deliver the squarely puts that burden of proof on the government right etc i don't see how this in any way implicitly makes a shift when it explicitly places that burden squarely none of that language places the burden wrong language which follows it then gives three instances which the government calls in your examples and i say occupy the field of alternatives that say if you find if you find if you find that there's no life is there any reference to role and other chacha another chapter three adjustment let me start with three b one point three which is the abuse of a position of trust or misuse of a special skill has one question of course in the abuse of position position of trust you argue as i understand it that the audit requirement is inconsistent with finding a position of trust that's one of the circumstances that we point to and rely on heavily yes the as i percent audit requirement one hundred percent requirement didn't come into effect until i think eighty five percent of his yes admissions had been completed how does that  claim was going to be doesn't have to be that every claim would be audited but that the existence of a random audit and a random chance of audit shows that the confirms that the doctors in this situation where as we say were working for the plaintiff's lawyers they were not working for the trust for the for the settlement process i have to say whenever we talk about abuse of position of trust it's confusing when the victim has the word trust in their name but there's no trust relationship between dr tie and the other cardiologists who were hired to submit reports on behalf of the plaintiff's lawyers to the trust for payment no trust relationship between them and the settlement i'm sorry say that again isn't there a position in a relationship a trust relationship between there create a trust relationship no and that's the other most common confusion in under this unfortunately named rule in the guidelines because the fact that the victim was overly trusting of the perpetrator does not create a trust relationship of the kind that's talked about in the guideline let's use the most similar example the demurrer case from a couple of years ago in this court where the employers failed to deposit funds after being ordered to do so in a trust fund account required of them by the i r s these are trust fund taxes social security taxes it has all the same confusions the i r s trusts taxpayers to comply with the tax law we have a they say a voluntary compliance system and yet this court reversed the adjustment in that case very similar to this one because that is not the kind of relationship that the guidelines talk about the contrast is with and this i think makes it most clear doctors submitting claims to blue cross other medical insurers right where the doctor is an approved provider of the insurance company as well as a doctor for the patient to hear that he only got through the door because he was an approved person had that doctor had special skills was found we have such a trust because of the relationship with the insurance company which here we don't have and the special skill because the what's being submitted there is a diagnosis you don't not a no leader and supervisor adjustment also falls out that's a four point that's a four level difference right there because under the guidelines you can't get both you can't get the skill adjustment and the leadership adjusts it in the same case if you find if you don't uphold the skill of justin then you have to look at the leadership of justin and that one is if i may have just a few seconds is really quite simple you have to lead another person who is criminally culpable only one i would be glad i would be glad to do that and end in doing that actually i think i'm addressing the critical factor underlying all three issues which is we're here on plain error these were issues that in the case of two were never raised and in the case of the third one was waived which is the death of the deputy patrick issue was actually brought up by the defense as an objection to the p  and really them the stake that the defense is claiming is that the district were didn't make a finding but it didn't make a finding that the defense told the district court it didn't have to make because the defense accepted the position of the p s r at sentencing so to say to the district court and the government you needn't prove x y and z and then show up in the third circuit and say oh look at this horrible mistake they didn't person's report with a number of paragraphs and having objections and having the objections dealt with and when the defense assures the district court and the government that this issue is no longer an issue that the govern that the defense agrees with the factual findings of the p s r and the conclusions of the p s r it is well that issue is a waived and they're not in a position to then say this critical that this recording a statement about the criminal culpability the intent or knowledge on the part of the employee the technologist it entirely focuses on doctor ties knowledge withdraw the objection there isn't still isn't any finding that the district court is adopting when business record adopted the p s r i agree that there isn't a finding although if you actually if you look at  the objection at the end of to the p s r this issue was squarely raised and then squarely and presented for a factual determination and then withdraw so that what the defense is suggesting is that we arrive at sentencing and the defense says no objections to the p s are your are in the government as well your honor i feel like i want to respond to an objection that isn't being made so what i'm suggesting is that even on clay never review the error can't be the absence of a finding because the purpose of objections is to point out that a finding is needed what i think this court certainly can do is look in the record and see if it was absolutely plain from the record that such a finding could not be made and i think i like the answer to that we are in the record can we find evidence to demonstrate that ms patrick had criminal culpability in her actions to mission there are there are actually two places one is as as both parties pointed out in closing of the sonar the the defendant's culpability was hand in hand with  culpability of the fence and i profess really his crime was taking distorted numbers that were provided to him by the technologists and passing those numbers on the shorts as if he were in the record his era finding a couple  no there is not a there is not a find there is evidence from which a finding could be met i understood i said yes so you say you're talking at the closing but where in the evidence testified to that ms patrick's testimony through her deposition at trial suggests that she had every reason to think the doctor was reviewing these actually to that to the contrary she did say that she did say on the record i thought he was reviewing them but of course the district court at sentencing doesn't have to believe what she says she thought because we're number this problem is presented to her as i pointed out to the jury in closing the her boss comes to her and says look i'm too busy i can't review all of these i just don't have enough time so here's a bunch would you do them for me now as she knows from being a technologist and be otherwise involved in the unfun litigation it is the doctor's job to review and approve them and that review and approval is based on worked on grapher so having her review it and then give it to him doesn't save him any time whatsoever is your is your argument that we should be making the decision of culpability on the basis of the record my argument is that if there is no p error based because the cause such a finding would have been supported had it been asked for but there is no clane error on given her testimony that she thought they were being reviewed and given the  the as i understand it the possibility of an image of an interpretation that there are lots of different ways of saving time in the process that you've described ranging from not having to do your own paperwork to not doing any review at all and simply sending them on it's a credibility determination that you're asking us you know essence to make and isn't that customarily something that we would ask the district court to do if we thought it needed to be done you package several questions in there my answers to the first two are no and the last is yes and not so customarily the district court does do it but here we are in a situation of the defendants making so yes it is normally a thing that the district court would do but my view is that there cannot be plain error unless it is obvious from the record that no finding could have been made by the district court so i'm saying is if you can look at the record and say well the district court could have made such a finding therefore any error cannot be claim how did that waiver come about mr shapiro could you could you go back might recollection of what happened is it was actually presented as an objection in the p s r and if you look at it done them you can see the defendant's position and then the response of the probation officer something like saying we have new objections to the request for  afterwards and the p s r said we don't accept that but this is a factual issue that the district court will have to resolve it since we arrived we the government arrived at sentencing prepared to address that on the record when we got there the defense withdrew that objection is it's my recollection of what happened so the issue was teed up and and parties were prepared to address it and then the defense said it's not necessary to to address it and there was a there's a rational reason for that to tell me about that because as i'm listening to you and as i read the argument in the brief it struck me that if we agree with your position on direct appeal there's a giant ineffective assistance of counsel argument coming pretty quickly there after what i understand that debbie patrick was not the only potential person that dr tie supervised in this case  was us teed up in the p s r and if the defense had no objections the only thing on only thing on the line was supervising one but there was evidence in the trial record and evidence available for a sentencing record if the government employed by others were directed by him and there was a tremendous amount of evidence that we actually put before the jury to show his knowledge and his intent that he would get bad reports and again take us back to the the plane error issue this is an if this is an instruction we hear on the plane or so the first the first requirement is that the error was plain obvious this is an instruction that was put together by a group of judges and lawyers prosecutors and defense counsel alike if this this error if it is an error occurred to none of them it then  was obviously reviewed by this defense counsel this prosecutor and this judge and this issue is one that occurred to none of them and indeed it is an issue that this court looked at in flora's because in florida's the question was whether the willful blindness instruction which is substantively i don't which was substantively identical shifted the burden of proof but isn't the question here not shifting the burden of proof but lowering the government's burden of proof no the argument is is shifting the burden of proof and what this instruction does on its face is is not that at all and they were getting getting past the plane error issue if you look at the challenge paragraph it does what your instructions frequently do and indeed what we do in the poorest of our work as lawyers here is a general principle and general principles are hard to absorb in the abstract and so then you give specifics to explain how the general principle plays out and this was indeed a pro defendant paragraph because what this paragraph says is here's the concept of willful blindness you have to have two prongs you have to knowingly you have to be aware of a high risk of a of a fact and you have to consciously disregard it and in this context these three things don't do it they are not alone i'm not negligence doesn't do it a disregard of a low risk or medium risk doesn't do it and having a good faith belief doesn't do it and what that does is it does not shift the burden or change the government it tells the jury what it hears the principle here's how you get to it and this doesn't do it and this doesn't do it and this doesn't do and that is an absolutely technical device that we use in many in many ways and indeed if you think about the process of of formulating a legal argument you go in you find a case in a principle a set out and then you find a bunch more cases and and you find a case that says well this is not sufficient and this is not sufficient and then you find one that says ok this is sufficient and now you have a sense of what it is needs to be proved and here the jury was told time and time and time again that the government bears the burden of proof that the government bears the indeed in this very instruction was told the government bears the burden of proof and it never changes and so when they were told here are three cases that don't satisfy in in neutral language the natural and logical you could argue the only interpretation but certainly the natural and logical interpretation is that the you if you look at the look at our instruction for reasonable doubt we say a reasonable doubt is the kind of doubt that would cause a person to hesitate act a trifling doubt is not sufficient that  the instructions had actually said this for example would not be willful blindness for example of how people feel blindness we wouldn't be here the problem is that the court said if you find a finding requires a burden of proof that's the difference and we rely on that that's that creates a direct contradiction internal contradiction in the instructions we rely on the supreme court decision in francis versus franklin for how you address conflicts and jury instructions which in the third circuit is us versus in and as those are cases that we rely on in our brief point out in the reply that of all the things we say in our brief about this it's the one thing that isn't even mentioned in the government's brief with respect to the possibility of a waiver we went forward on this we didn't hide anything if you look at our prepared forty three footnote thirteen we described how the defense counsel made this objection and then withdrew it not survive surprised ending up in the insurgency by sending the judge a letter before sentencing i'm baffled  why he did and it serves on page sixteen of the appendix the judge saying yeah i received your letter is that did i understand it correctly so that's that's what happened but we also point out that on pages fifty six fifty seven of the government three they waive the waiver and this is discussed in our reply hitchen footnote seven of the reply the government mentions the circumstances which might give rise to a waiver argument and then says but putting that aside there was no ever at all the government never argues that there was a waiver of this point in their brief and they disavow arguing they don't cite a case that is called waiving the waiver and it puts the case the issue before you on its meri of that where there is plain errors such fine things was pointed out would be a remained with directions to make a finding rather than a remain for the sentencing it would be it would go to the remedy that you would give but it doesn't go to whether you would address the issue w