testified he observed mr jackson under a desk curled up in a ball crying because he was in so much pain if lawrence noon yes mr jackson's roommate had testified he would have testified they went to a party someone lit a fire cracker and mr jackson began shaking so badly he was paralyzed with fear and couldn't speak and there kevin ray who served in the military with mr jackson who testified he would have testified that mr jackson went from a super athletic highly competitive motivated individual to someone chugging robitussin so he could sleep at night carrying around a binder given to him by his supervisor so he could remember what he was supposed to do that day but none of that testimony was admitted the district court excluded that testimony and that testimony really went to the heart of what was this case this case was about whether mr in fact and knew that and also whether he in fact had the state of mind to be guilty of those charged offenses now because that was the key issue in this case the district court erred in a number of ways but one way i'd like to talk about is the fact that the court gave a deliberate ignorance instruction in this case which was entirely inappropriate and secondly by excluding that why wasn't there a factual basis for little deliberate indifference instruction in other words there were a number of  deposits made to his account and he would have understood you have wondered why those type of deposits were being made to his cow why isn't that a deliberate indifference with deciding them further not to investigate  only eight suppose that kickback when you break down what the jury acquitted and convicted four of the seven counts that the jury acquitted actually had these kickback deposit supposedly lang to the date that mr jackson received his deposit of the county was convicted of one of them didn't list a deposit and when you look at the overall grand scheme of this case the government doesn't dispute mr jackson was entitle to rate travel and when they break down month by month with his travel and then his incidentals and meals he was entitle to a range of five thousand five hundred twenty six dollars a month up to sixty to seventy when you study exhibit two hundred and you look at all of those deposits many of those are we've in that range so you wouldn't necessarily notice there was anything wrong in fact eighteen of the twenty seven claims the government presented were within the range he was entitled to receive but the many of the clients were when he was at the wounded warrior so facility where he was entitled to no reimbursement that is correct so counts twenty two twenty three and twenty four the jury convicted him  january two thousand and eight until september two thousand and eight so counts eighteen nineteen twenty and twenty one all would have been a time he was also at wounded warrior of which the jury acquitted him i think what ultimately happened is m defied in his summary chart that counts twenty two twenty three and twenty four had mills in incidentals included something that was not alleged in the indictment but he added that in because he said mr jackson was at wounded warrior at that time i'm adding in the meals and i think the jury convicted based on the fact he was receiving his i can't remember how you phrase well it's always going to make decisions based on what we thought the jury may or may not have dom and while that's not really a god post to five miss jackson objected he objected to the knowledge instruction saying it misstated the law but he objected to the language she didn't have checked the instruction at least are you i want to give you an opportunity to point that out to me if  below i was not ok sorry i think from at least my my read it is it's it's appears that he's arguing with respect or making a request regarding the language but it doesn't sound to me or read to me that he is objecting to the construction well wouldn't it when you say that you have the right to have a jury decide each element of the offense i think by imposing the deliberate ignorance instruction ultimately what happened here was it was almost a negligence instruction this especially an individual with a t b i and p t s d who's disputing knowledge and it really was a case of he either had actual knowledge or he didn't know this is not like ramos a time where we have someone driving to the border in the dark and unloading things from a boat that just came from mexico and this is more like send a recent case before this court where the individual communicated with the conspirators before he arrived he rented a car at the direction of the other coconspirator and he drove around with them on the day in question but in that case this court held that wasn't sufficient that didn't warrant a deliberate instruction there shust was an evidence that he actually had a subjective belief that those facts exist and he felt to investigate and i'd say that's what the evidence demonstrates here as well what were you seeking to enter pose a psychiatric defense a diminished capacity defense you keep talking about this testimony going to knowledge but a diminished capacity doesn't go to knowledge it can only go to specific intent correct her but he was charged with aiding and abetting filing these claims but which goes that intent element it's an intent to aid and abet it's different from knowledge that the reimbursements were false correct yes but i think the way the that that type of evidence because you didn't put in that type of defense defense was diminished capacity am i correct about that well it was more or less a diminished question based on his t b i it was his level of functioning could and did he have actual knowledge this was happening and did he have the capacity or not the capacity but the intent to be guilty of the charged offenses but aren't there cases that say that diminished capacity does not go to knowledge it can only go to the specific intent and it seems like you were repeatedly talking about it going to the issue of his knowledge going to the side if i'm not making myself clear simply going to the knowledge of whether he knew that fleur was was doing this and the government  show not just that it was fraudulent but the other elements as well that it was false ok so when you look at the entitlement the indictment required that a claim be submitted on this thirteen fifty one d form that was the department's requirements and the entire theory of the case alleged by the government it's alleged in all the overt acts is that flora submitted a fraudulent thirteen fifty one and then he would attach a fake hotel receipt but it didn't add and it took the took out an element but the government's theory was the case was a fraudulent thirteen fifty one and they just wipe that out of the language and all the sudden change their theory of the case to being a fake or fictitious fake and fictitious obviously carry very different meanings and fraudulent and by eliminating them and in the lives of their pride in the wealth on this instruction what's your best case on that well the jury ultimately convicted and what's your best case for that proposition yes well i think you have to take maybe two propositions one the government is bound by the theory of the problem with narrowing an indictment opposed to expanding i know practically that you had prepared early on in the case for a psychiatric defense going to the question of intent and then they eliminated the question of intent and so i can understand in terms of preparation how that provided you with a problem but but what at the end of the day what is the problem when they will narrow the charges it's not really an airing they're changing it because they're saying now here you submitted a false or fictitious claim and that is nowhere stated in the indictment their entire language of in time and uses the term falls in the general language but when you go to the object of the conspiracy in the overt acts describing what happens mr jackson was on notice that he submitted a fraudulent thirteen fraudulent claims submitted for lodging and then i would add the other problem with the indictment is that as we discussed earlier he was convicted of counts twenty two twenty three and twenty four based on meals and in adult incidentals and lodging and meals and incidentals is never alleged anywhere in the entire indictment they allege that this was all a logical case did you want to reserve the balance i wish but let me just ask judge school did you have any questions at this point  transferred to third anglicare this is the best i can answer your question flores was stationed there as well and then the record does indicate that there was a social relationship a friendship as well as a work relationship i don't know if that culminated prior to their time a third angle coing two thousand and seven though the record doesn't reflect that ok thank you good morning and may it please the court temerity is on behalf of the united states while that wounded warrior defendant jackson submitted at least three claims holding over twenty thousand dollars for travel pay when he was not paying anything out of pocket for either lodging or meals maybe we should start where with one of the arguments we were just discussing and presented by mr conrad behalf or her client so let's talk about the difference between fraud and false and how that may have affected the defense in this case and why wasn't that an issue yes your honor the death the indictment originally alleged that defendant were charged with submitting false fictitious or fraudulent claims to the united states that was the language in the original indictment and that's the language in the statute but as this court has repeatedly held including  either thought fraudulent or it was false or fictitious and given the amount of evidence in this case and the specific issues that were being raised the government chose to proceed slowly on a false or fictitious claim which was entitle to do and i want to correct one inaccuracy where the defendant said that all of the fraudulent language was taken out of the indictment it was only in the substantive counts of two eighty seven violations there were still over acts that the scribe the conspiracy and in fact in the fence brief she cites to over acts one four and seven that charge jackson with allegedly fraudulent conduct and those over acts actually relate to defendant flores submitting a fraudulent can't claim and defendant jackson's name so our theory with respect to defendant jackson is that he knowingly submitted false or fictitious claims we did not proceed on the theory that he submitted fraudulent claims that he had an intent to defraud only that he knew that the claims that he was submitting for which he was receiving payments over twenty seven months those claims were knowingly false protection where you could have noticed to the defendant of that before the trial started correct that that was your theory yes it came up in the context of discussing jury instructions before trial let's talk about the deliberate indifference and structure and you know i think there are there's a general word wording that they're not to be given freely and supposed to be really cautious about giving these deliberate and different instructions at least i think that's what our case law says and i think you're arguing then it was appropriate here because there was sufficient evidence that mr jackson was aware of a high probability point that jackson was willfully blind because it seems like your evidence here tended to show that mr jackson knew exactly what was going on he negotiated kickback rates  others he regularly communicated with the mr floors at the time reimbursement checks were deposited into jackson's count and that mr jackson may direct deposits from mr force account after receiving these reimbursement checks repeated the argued that the payment system was in such disarray that nobody knew what they were being payment paid for and when that flores was in charge of everything and nobody knew what flores was doing and so we thought there was sufficient evidence introduced  trial from which the jury could infer that there were there was no actual knowledge there was still knowledge because there was enough suspicious activity that defendant was on notice and did not investigate and possibly deliberately d investigate there was that statement from miguel polanco that the marine corps ball when everybody was in a in a in a tizzy about jackson or floors going a wall and they were all going to be left holding the bag for this conspiracy where jackson said we didn't sign any valid charges they can't put this on us because we didn't sign any vouchers so i would point the court to the walton case where judge a man wrote about the defense that the defendant was naive and  involved with unsavory characters who were violating the law and that was sufficient to give a deliberate ignorance instruction where there was sufficient suspicious activity there were kickbacks in the walter case there were only there were repeated claims going t the same four providers one of which was far away from the defendant there was a sufficient suspicious activity going on that the defendant was deliberately ignorant and turned a blind eye the fence was claiming she was nave the court found that there was sufficient evidence in the record to justify giving a deliberate ignorance instruction where there was these doubts the suspicious suspicious activity plus a failure to investigate and as judge gould held in the the deliberate ignorance theory maybe in the alternative to actual knowledge and so here the government's position was that there was overwhelming evidence of actual knowledge but where the defense's theory of the case and the defense was that jackson didn't  know there was sufficient evidence to warrant the ignorance instruction as well and i suppose the jury could have rejected some of the evidence that you have a direct knowledge absolutely and in fact your honor i believe that i know we don't want to speculate too much of what the jury did but i believe the jury did in fact reject the evidence the jury convicted on the last three counts when defendant was at wounded warrior and the jury heard evidence well i should say that there is record evidence in the record from counsel statements to the court alone that defendant was at wounded war from january two thousand and nine to september of two thousand and nine but the jury never heard that the jury heard that defendant was at wounded warrior in june july and august of two thousand and nine so only those last counts related to the time that he was at wounded warrior according to what the jury heard and that's where they convicted because at that time there was no reason for defendant submitting false claims or there was no reason for defendant to be submitting claims for travel because he was not paying for lodging and he had no out of pocket meals and incidental expenses so he shouldn't have been expelled i mean his account jury acquitted on all the other almost all the other counts where defendant rated travel and defendant could have been expecting money his account but for those three counts they rejected the jury's the defense and they convicted on those counts so i do think that's why the jury convicted on those counts alone a question regarding cohen i believe that was your reply with yes and it appears he examined mr jackson in two thousand and fifteen yes and i think that would have been six years after the charge conspiracy  and this case had ended and nine years after mr jackson had been shot in the head i'm just trying to figure out how dr cohen's testimony was relevant to rebutting mr jackson's mental state he does is he examines evidence he examines medical records he examines financial records he basically examined much of the documentary evidence in this case and and created a forensic analysis to try to reconstruct what jackson's mental state was at the time of these offenses so that's how his testimony is relevant but it seems unclear to me was dr cohen a comment on jackson's mental status in two thousand and fifteen or in two thousand or between two thousand and seven and two thousand and nine was it clear to me what was based on his forensic psychiatric evaluation he was a pining on defendant's mental state at the time of the conspiracy the defense raised significant evidence and introduce significant evidence of defendant's mental state at various points they had camden amy talking about some of the things actually about the  conner i talked about were being excluded camden amy was talking about the defense the friend in pain being curled under the desk being too much in pain to work you had kevin ray and alex do you talking about the defendant's injury in combat and the subsequent manifestations of that and that was laid against the subsequent manifestations they didn't talk about anything other than what really happened that day correct well they talked about how he was delayed in getting medical treatment  make an affirmative finding since a jury had acquitted on that conduct that it in fact took place no i don't believe so in fact the case law is clear that the jury i'm sorry that the that the sentencing court may consider conk all conduct that was part of the actual loss of the victim all conduct that was of the conspiracy had to be reasonably foreseeable yes exactly but does he have to say i in fact credit that testimony in other words a verbal ear to kill i thought i credit that testimony even though the jury didn't i'm just talking in terms of findings i don't believe that the court is required to to make a specific finding as to the reasons why she is supporting the restitution calculated by the pm but she said that she adopted the findings  r that was sufficient for rule thirty two and then that it's about restitution so there was a statement made that the findings of the p s r were adopted yes i believe so i'd like to make a few points about the exclusion of evidence were concurrent with the time period here at e r seven one thousand nine hundred twenty six there's a discussion about four additional medical professionals that defendant had originally listed as witnesses they were dr patel defendants primary care physician throughout the defendant's entire military career including the time that he was that wounded warrior dr richardson a psychologist that wounded warrior dr barlow one pharmacist that wounded warrior and michael crossed the line a social worker that met with the defendant right before fact witness on her contemporaneous observations of the defendant and so it was defendant's choice the strategic choice of the defendant at seven twenty two says that's a matter of defense strategy which witnesses she was going to call i'm sorry which witnesses counsel was going to call to support this evidence the court said the doctor's office testify about their diagnosis that's e r seven twenty four and it was defendant that withdrew the other witnesses and  about where the defense is self imposed limits that is not a sixth amendment violation second the excluded testimony is not relevant to the counts of conviction the defense the testimony of michael system larry nunez and kevin ray were all before the counts that the jury convicted on none of those witnesses with defendant at wounded warrior none of them have contemporaneous observations of the defendant while he was at wounded warrior on the counts of the jury convicted and finally there was significant evidence that did come in in support of this defense like i said cannon aiming at your four fifteen to four sixteen talked about some of the same things that michael sisson would have testified to kevin ray and alex do you talked about some of the immediate aftermath of also numerously many times articulated that she was not bringing a dalit diminished capacity defense instead she was she wanted to introduce evidence that the that negated an element that the that the i mean can ditch which it had to gone forward if she was relying on medical and psychiatric testimony would the testimony have had to been a typical insanity defense i suppose to something short of that no i believe based on there's so much discussion on the record and i believe the conclusion was that this was not an insanity defense and the defense did not need to rise to the level of an insanity defense what they were trying to show was i given the defendant's injuries as t b i and his p t s d and the resulting manifestations of the injury his poor concentration his lack of memory his difficulty saying organized that those things made it so that when he was receiving money in his account he did not have the so you believe that that's an appropriate defense is just that they had sufficient evidence in the record to establish that in cynic's clothing that's a lie a witness is was not arris not your position  yes that was a defense that was proposed and that's the defense that was presented to the jury and i think was ultimately successful on the majority of the counts and that's why the jury acquitted on those counts i know my time is up so must the court has any additional questions for statement it is ordered that the defendant shall pay restitution in the amount of one hundred fifteen thousand dollars seven hundred fifty four dollars and sixty cents that's an e r twenty six to twenty eight that was the entire state  they judged it and excuse me didn't adopt the findings and the person entrepreneur exactly that would be the judge did not it did not adopt that was the only thing stated in regards to restitution but the judge because the judge presided over the trial had a full record on which disputed the amount due to the acquittals as well as the fact that he was intitled to compensation during the majority of the duration of the conspiracy well but he never presented any evidence of that during the sentencing did he well that was his argument and his sentencing papers that he was entitle to compensation but i don't recall that he said submitted any evidence did he well i thought the evidence at trial was that claims had been submitted and then according to you i believe it was joseph you'll a lot of the claims examined where you were submitted and then he examined after the fraud examiner came in and discovered many had been doctored with the bite out and that's quite apparent when you look through the claims that were filed and so mr jackson may have submitted a valid claim and flora has may have altered it that's the way the testimony played out but for that reason i would argue though that that was not actual loss and the judge did not make any specific findings thirty two and the mandatory victims restitution act required that my what in the rights row three to tell your reply brief current well i believe it was raised in my opening brief but i'd have to double check and then objections were filed in the district court objecting to the calculation and the final point i'd like to make is in c n n this court said you cannot give a deliberate indifference or ignorance instruction when there's evidence of either actual knowledge or no knowledge and just as the government said today here and at trial there was according to them overwhelming evidence of actual knowledge this was not the case warranting a deliberate ignorance instruction thank you thank