please the court my name is kimberly zimmer and i along with brittany injure represent the a power of the microphone certainly i represent the appellant miss bonnie my son and your honors as we've submitted briefs throughout the trial and the appeal the government has attempted to redefine and re characterize its own allegations and its own proof it is in the context of the allegations in the indictment and the proof at trial that we ask that our arguments be evaluated it is the government's burden to show that bonny mys land had to know what directs or be supervision required it had to she had to know that it required doctor physical presence in the office best agent that she was very familiar with the incident to regulations and there was evidence also that the prior practice she had been aware of billing regulations were responsible for billing incident two she was adamant that she knew what incident to required respectfully respect lou would say no to you on that and there's two different parts of that that i want to address number one is that she is the testimony that agent and it when you take it all in context and we do know that there was one part where she claims that she knew what direct supervision was and that was on direct examination but the testimony of that agent in total needs to be taken in context and basically what she's saying is that this person was the billing professional this person was for a milieu with medicare guidelines and that this person bonnie my eyes lend new understood incident to that does not mean that what bonnie my son herself told the agent though that in one portion of her testimony as i said out of context but i but there's a context to that that it is important to understand let me interrupt for just one of the do you agree that the incident t regulations did not change in any significant way during the relevant period that they always required that the doctor be in hospital suite or in the office suite in order to build a hundred percent for the p a or the r n i  agree your honor that there that directs or supervision for medicare purposes was required yes i do agree with that although there was some clarification on that because you have to remember that during this time period we have skype we have teleconferencing we have telephones so what kind of supervision because remember the suit that the doctor does not need to be in the office suite when i read it but what i do want to go back to here in the office the doctors does not i thought the doctor absolutely needs to be in the news be in the office so he does not need to be in the exam room i would like but that aspect is what is key and that's inconsistent with his presence in the fata when your client was an understudy yes and we agree with that but i think it's i think it's really important your honor that that you recognize that when you are trying to win you are going to criminalize the application of a medicare billing guideline ok we're just we're not talking about a fraud case in the traditional sense where we have a double billing or we have a street out billing when a physician is not present if the doctor when dr kucera is in that office suite he knows those practitioners can bill under his identifier at one hundred percent rate so that we know the problem is in this case that what happened appears to have happened was that he was he was nowhere near any of that he was out of state she was the billing manager and after september two thousand and ten she was was the only person who had anything to do with submitting questions and i know you take the regulation you know you have to show that this evidence is insufficient your honor i understand what you're saying and i still maintain it is insufficient but one of the arguments that i really want it would like to focus on it and i think it as much money working elsewhere that's that's exactly where i want to go your honor at a minimum bonnie mizen should get a new trial individually and cumulatively she was completely denied a fair trial to be under four for be the conduct must be sufficiently similar and to permit a reasonable inference of knowledge or intent that is well established second circuit law the only only similarity between the billing that occurred here is it was a medical office and it was medical billing there it was not even medicare bill down it turned in both cases on the presence or absence of the doctor didn't completely different context yes completely different context in  situation it's billing for services that we're not we're not performed he wasn't there he didn't perform them in this circumstance you know what in order for her to commit a crime she needs to be keeping track of when the doctors in the office and and supports that this woman should get a new trial on the four of four b issue it was straight up propensity evidence the government wanted to the jury to conclude that if my sling committed to health care from the passion would do it again that's the only purpose it does nothing it speaks nothing to her understanding of this incident to guideline there is no proper person purpose in it and it is clearly harmful it is clearly prejudicial and the judge himself both in his limiting instructions and in his decision to admit it again assumed a similarity of contact of conduct that simply does not exist and here i would point you to i mean there's much more second circuit case law on this but it's it is clear that sufficiently similar conduct must be found there is no way that this can in this for for be evidence can be upheld your honour's there is no way there's no point in having a rule if this if this kind of evidence gets into a criminal trial there's  good morning made please the court stephen clymer from the united states i'd like to begin by addressing two inaccurate characterizations that permeate the defense briefs and also surface this morning at oral argument one mischaracterization all the charges in the government's theory here one mischaracterization volves the proof and whether the government made a certain concession that is described in the defense briefs the first mischaracterization involves the charges in this case it was not the government's theory that this was a case involving simply this incident to bill in the climate and a technical violation requirement as the indictment makes clear and i'll direct the court's attention to appendix page forty six as the charging language an indictment the theory here was that the practice billed for dr chris through services when he was not there one component of that was incident two but that the wrongdoing here was to claim that dr cut through private services either by dean presidency in a patient's self or by directly supervising from inside the office we when fact he was in las vegas when the patients came to be seen so when the defense claims over and over again in their briefs this was simply about the incident too well it's not simply about the instance it's about billing for services not performed in fact the district court and it's a decision denying the rule thirty three and rule twenty nine motion specifically described the government's case as being in for valving quote services they have to belong to their own provider number they don't have provider numbers in this case because they were not medicare credentials so the false claims that when represented to the medicare program that doctor crew through perform those services so none of them could have killed medicare at all because they weren't credential that's correct in the course of the last claim your honor that they were not credentialed and who furthermore if they billed for the eighty five percent the claim from has to be under their provider number which they didn't have  so what was being represented by defending my islam to medicare over and over and over again is dr chris through was performing services and those services could have been him seeing the patient personally or it could have been a  our nurse practitioner seen the patient under his direct supervision we didn't set out to prove a trial which one of those two things wasn't occurring they both weren't occurring because chris threw can't do either one couldn't see the patient work provide direct supervision because he was in las vegas when the patients were coming in now in fact the room for some confusion there i mean if dr who through has his own p t a and we never then the number is and he's responsible for direct supervision the ph and the are into providing services there and title there's some service some medical services being rendered and you know their agents testimony didn't quite get to that level of detail did it oh yeah when she knew and appreciated it in the focus on incident two first of all there was a evidence that cited pages ten and eleven of our opening or answering brief that there were many days when there was no medical professional a practice at all and non medical clerical staff were seen patients dispensing prescriptions for schedule two drugs and performing medical tests so on those days there was no possibility of confusion on days were the physicians assistant i'll show them way saw patien there was a possibility there was some confusion but the jury found that there was and that was a contested issue a trial about what whether my husband didn't understand the rules and the jury made a decision here upon abundant evidence she told people she understood the rules she talked about incident to show my shoulder the regulations she ignored him when he complained about the way he was she was billing she lied to an investigator who came in when she said dr always saw the patient only bill for and she talked to stella about there are brief and they make crystal clear that the district court's decision here was not an abuse of discretion to admit i used your attention to it to age sixty two and sixty three of your brief where you're talking about section thirteen forty seven and can you as i understand it you're saying that and correct me if i got it out of the statute i think not your honor so if i could provide some background when we wrote the brief i'd incredibly characterized as clear from legislation that's why i sent a letter to the court to explain the clarifying legislation only on did that aspect of the ninth circuit cases we quire the knowledge of the specific statute issue it did no more than that so to the extent our brief says otherwise our brief was wrong because now knowledge of this action so that that's that's the correction that you just highest level of mental state one could interpret out of willfully was the one the ninth circuit did which was knowledge of the specific section congress said that's not right the next let's step down i suppose or be knowledgeable unlawfulness generally and  presidential decision and a health care fraud case somewhat similar to this one the court had a sufficiency claim before it it did not specifically describe the elements of thirteen forty seven but in this discussion of the sufficien evidence all it talked about was the fact that the evidence was sufficient to prove well and intend to do for there was no mention of the sing decision at all about to require mint of knowledge of unlawfulness third point i want to make again discuss thirteen forty seven as if the mental state requirement was only intent of the fraud no mention that decision of knowledge of unlawfulness either so i think to the extent there is any  now and there's a certain other sort of start don't agree on this there's a difference of opinion the requirement is only intended for all that said your honor i'll say two things one here the judge charged the unlawfulness requirement on and we believe the evidence proved that second i'm not sure there's much space between a requirement of intent to defraud and a knowledgeable in law from this it seems to me if a defendant is acting with intent to defraud which is what we believe is the appropriate instruction one of these cases i don't see how the defendant can claim i didn't know it was unlawful if i did in fact intend to give you know to know what's read what the representations are required to be paid now i think that's correct it's out i guess you have to you have to show it least some kind of knowledge of the regulations or or this not necessarily dismissive exception number whatever but at least what the regulations require and in this instance the regulations require a a medicare reimbursement  cover up the knowledge of what those were that's correct you're covered up and running rarely you'll ever have someone saying to an age all i knew that the doctor had to supervise this but i decided to go ahead and build it under that number anyhow i mean you have to judge it from a course of things i don't think this court house to resolve that issue in this case to affirm the conviction but if the court's inclined to again i'd suggest that this court's authority so far enjoy fahri unpresidential and saying push reliable stand on on on the amount paid no your honor they did and this again goes back to the same decision in seeing when the court first sentenced it relied on the amount submitted which is higher than the amount and it's whatever the doctor says to medicare please pay me this amount perhaps knowing full well medicare is a few schedule that's lower and in singing the court remey ended with essential instructions to let the defense make the showing that the doctor only expected for his last intended loss to do the amount allowed so the authority in both inc guidelines in this circuit is that at best for a defendant the amount a lot on a dictate the loss amount for the guidelines not the amounts of it and that's what the district the defense gives to support that claim which is made i think eight times between the opening and the reply brief is page seven twenty nine page seven twenty nine is the testimony of a witness name case agent not the person dictating the government's theory in this case she's a private contractor and all she testified to at that citation was that she personally was conceding that the physician's assistant nurse practitioner saw the patients she doesn't say how many times they saw them when they saw them what it has to do so when the court i'm as i'm sure you'll be very familiar the record when you see in the defense briefs claims of government concessions and government acknowledgments about the services being performed that is simply untrue we did never never made that concession and here there was evidence in the record i think that's all you absolutely i want to address that point right upfront ok that is the medicare investigator who testifies about the regulations at issue who testifies about visiting the agent who says we are not claiming services are not performed that as a concession by the government that services were not performed moreover there is no evidence in this record of a service not being performed there is not a person coming in saying i was billed for a service that wasn't performed there is bill but but there was some testing that happened some balance testing some drug testing that happened that can happen lawfully by non medical professionals that can happen by a clerical person so she doesn't know anything's wrong when there's no medical provider in a suite or for billing for those services and the government never shows what specifically is that's the other part of the problem so they not only don't bring people in to say services weren't performed they don't is correct and that is why he did not provide direct supervision but medical professionals who were preventable the elsewhere and by the way this credentialing issue is another adaptation by the government there's no allegations about credentialing in the indictment and this shumway who testified was credentialed elsewhere where any of the physicians assistant i believe i believe that connally testified that the way it was testified for another provider you get pretty good credential at each provider so this practice never credentialed them but i do believe they were