arrest many years ago we've asked the court in our briefing for several things and i want to st start with is our request that the court also occurred during the course of the government's opening statement to the jury and those issues concerned really two big areas the st was the government's cross examination of dr matthew on the credibility of the government's three cooperating witnesses and it's only patient w and the nd area concerns what has been referred to in the briefing is the peer comparison evidence which as i'm sure the court is aware consists of data that ranks doctors based on medicaid in this instance medicaid claims that they submit particular procedures and in this instance the peer comparison evidence involve mathews prescriptions for what we refer to as adult diapers resulting continence products is prescriptions measured against other doctors in the state of new york or time periods i believe they were two thousand and nine to two thousand and twelve and the cross examination that we discussed in our brief concerned taking those figures and essentially creating a peer comparison set of data for the year two thousand so those those two areas are what we would have i'm sorry i don't know what happened i didn't i didn't move my head from close to the thought but i was saying that those are the two areas that we would like the court to focus on in the context of our claim than a new trial or ok so in terms of the st one can i ask you about book cooperating witnesses so in richter which is the case you said you said it would be a problem to ask the defendant to contrast his credibility with that of a federal agent because they generally  would be seen to be truthful but why does the same logic apply to a cooperating witness i mean in this case the judge even needed to give an instruction to the jury about the cooperating witnesses to note that they had been involved in criminal conduct and had pleaded guilty for criminal conduct and he says the fact of the witness is an accomplice can be considered by you as bearing upon her credibility so this government cooperators don't have the same reputation for truthfulness that which is cited i believe by this court in one of the st decisions discussing the propriety of questioning a defendant about the credibility of other witnesses doesn't make a distinction between a cases said that it is all right if you just say that there was that the testimony was not correct that was false but that you're not permitted to say that was deliberately false or a liar and isn't this case on the side of the line but we've said ok judge gallery so you're you're correct that there is that distinction and you know the basis for that distinction is to prevent questions that  ask a witness to take the issue of credibility out of the hands of the jury but i would submit that based on the transcript of dr mathews cross examination that while there were eighteen instances where this sort of questioning occurred in our brief i think it was thirteen or eleven i can remember the exact number now but there were the majority of the questions that were asked fell on the side of asking the witness whether the testimony from the cooperating witness asking asking dr matthew whether the testimony on the cooperation witness was true or untrue or in question and answer i would i would submit to the court of this really no functional difference between asking dr matter whether he was no i don't but what always there is a functional difference but it is a difference so there are cases you find some cases that essentially support what i'm saying now that the reason no there really is no difference when you ask a witness whether when you ask a defendant here dr matthew whether the cooperated when this is testimony is true  clear you your client is on the sky and are giving perjured testimony as the trial judge found does that change  calculus no i don't think it changes the calculus at all because the what's happening is happening in real time and before the jury has had has an opportunity to consider the issue and the whole purpose of the rule is to avoid taking the question of witness credibility out of the hands of the jury and if the questioning is such that you're not taking credibility out of the put it in issues and make a difference i don't think it makes an issue and i don't think it makes a difference in the in the sense that you can't just because dr matthew gets on the stand and says i didn't i never the hands of the jury of the other hand to the extent that credibility has been made the essential part of the cage and it has here by you and your client then the government has to have a certain amount of room to talk about credibility without taking it away from the jury and that's precisely the distinction that our cases may feel that of course  government raised these things because credibility was an issue did they go so far as to take it away from the jury that's with the cases say some things are some things are not where men are right i think no i think you're exactly right in the in the sense that there are there are limits in particular and they kick in the case all the talks about the prosecutors have had a cabinet prosecutor some nation in these situations where credibility is at issue just judgment actually pointed out in the ricky case i would submit that when you have a combination of the type of questioning that we have here plus what happened in summation as we described it in our brief that that makes a difference  looking at the record as a whole range in some instances just peyton leon incredible so what's your what's your argument as to the fundamental unfairness matthew knowingly and willfully participated in a fraud that was masterminded by alexander berman and when you and the two prongs of liability is that the government alleges one that he served as the nominal nominal owner of the clinics and secondly that he stopped seeing patients at a particular point in time the prejudice is and this leads up to the point that when he got on with dr mackey got on the witness stand  but the government produced no witness who testified who could testify we would testify about the circumstances surrounding the preparation of the documents they had to win this they didn't they didn't call her to testify and then when documents is that the pure comparison no no no i'm making the point about the point about the documents relates to the st prong of the government's case and that is dr matthew served as you know the quote claim that he understood what he was signing and understood and intentionally made a false statement to medicare medicaid that he was the owner of the clinic there was no such there was no such witness to that point on the nd talking documents are pretty clear on that well the reason the reason why that was whatever where it was going in response to judgment i should question i think about why is the so significant where i was going with that was that the evidence about what really happened at the clinic came from the government cooperating witnesses on the one hand and dr matthew on the other all the other documents and evidence aside what really what the government really had about what document they did at the clinics came from those witnesses who really only testified about what they saw document to do and essentially had to give their testimony in my view bordered on speculating about what he did but their testimony was oh he never saw patients why do you know that because he came in every morning said  sufficiently argument with respect to well but you know but but your argument with respect to this was in answer to judge parker's and saying not a sufficiency but judge parker's question was essentially in one group of money contained in a bank account in the name of one dollar of the clinics called oceanview in another group pot of money in a bank account in an account morning your honors may please the court leaves david raymond lewis from an assistant united states attorney in the southern district of new york representing the united states on this appeal and the trial below as each of your honor's has mentioned this morning the  test the evidence the trial was overwhelming it established number one the existence of a massive fraud that defrauded medicare medicaid of tens of millions of dollars and secondly it established overwhelmingly matthys knowing participation in that fraud in at least two distinctive respects st most notably week after week year after year defendant matthew traveled to the clinics in south brooklyn sat for a few hours alone in a room signing enormous stacks of false medical documents in which he either a claim to have seen thousands of patients for medical visits that in fact never took place were being signed referrals for millions of dollars of medically unnecessary physical therapy occupational therapy and diagnostic tests or see sign millions of dollars worth of medically unnecessary prescriptions for adult incontinence products for patients whom he never saw and this this signing of blank  of the fraudulent documents continued even after the clinics closed and berman continued to pay matthew to come to the closed clinic and meet with the former clerk and continue to sign prescriptions without any reference to any patients or or medical records that's only one of the two ways in which matthew participated in this fraud the other one is as defense counsel mentioned that he helped berman to establish three clinics by posing as the straw owner and there he signed all all nature of documents incorporating the clinics in rolling them in medicare and rolling them medicaid signing documents instructing medicare  medicaid to pay the the proceeds of the claims to the accounts that matthew had set up and matthew controlled so so the evidence was overwhelming as i believe a number of the judges menti martini's point about cross examination the defendant chose to testify the cross examination here was directly in line with the precedence of this court at no point did the government seek to take the issue of witness credibility away from the jury and so yes but the artist with which i think the appellant is making is that involved four different government witnesses so part of the sheer number of questions was because the cross examination involved the testimony of three cooperators and it also involved the testimony of a little victim for two reasons st of all no on the substance but also i'd like to tie it into two defense counsel's mention of the summation but the reason it's it's no just as to the cross examination itself is that it was necessary in the cross to make it clear he was not he was not saying as he was with the documents with the documents he's saying well there was an explanation the explanation is i never read anything that i ever signed but with the with the contrast with the cooperating witnesses the government was a title that was and it was perfectly appropriate to establish you're not offering an explanation for what happened in those rooms you're saying that the testimony is flatly untrue that it never happened in the government i think properly clarified for the jury this is not a case of here's the explanation this is a case of the to the let's be clear the defendant's testimony is that never happened and if i could if i could link it to the defense's efforts to link it to summation let me make a point about about summation the government did on summation on a number of occasions characterize the defendant's testimony as lies but not this testimony not the test lot the test learning's respect to the other witnesses the government's use of the of the notion of the word lied and summation was very specific and very closely tied to the evidence about number one the signing of a stack of checks where where the defendant told completely absurd story on the stand about signing a whole stack of blank checks and the government very carefully went through why the evidence proved that that was a lie number two the government's summation said the defense was lying about signing hundreds of documents that he claimed never to have looked at documents that incorporated the clinics that where he claimed to have seen patients in clinics where he had never been tested never been to certain clinics but we we had all these documents showing he claimed to have treated patients there or on dates when he was out of the country so those are the downhills that l c s i don't mean to cut you off but i hope you will save some time to address the question of the for future yes ron let me turn to the small fraction of the fraud proceeds and it was even a small fraction of those fraud proceeds for which defendant matthew personally caused and it's in two respects number one the account of the medical office of paul jane matthew that was an account the defendant himself had opened years before he knew berman this was his account of his clinic he was the sole signatory on that account and the statements for that account were sent to his home that's a point a point b though that account was filled with proceeds that he had personally directed medicare and medicaid to send to that account he had executed forms of medicare medicaid saying when we file claims this is where you send the money and last medicaid he owns the proceeds are going there at matthew's direction and again he personally is writing the checks to pay coconspirators vendors employees and berman himself the honor to quote the government's some nation that's a crazy lie that that testimony that that was in ninety checks which he claimed he had signed and like we pointed out on cross and on summation that amongst of those ninety charts were three tracks that were not even signed by him they were signed by berman so even you know even if one imagines the scenario where he's sitting down and signing nine people signing ninety blank checks if you've got a picture berman running over in the midst of that process and signing a check every once in a while and we made a number of arguments on summation directly tied to the to the evidence that that testimony isn't another legal refuse so actually so if it were believable that he had signed all the checks in one sitting that they were blank with that to feed the presumption that he controlled the assets well your honor i'm if i may in in the in the defendant's reply brief they they put a lot of emphasis on judge ray cost recent decision in a case called harris and i'd like to distinguish our case  our facts from that and in answering your question in paris the the court looked at whether the defendant could be charged with controlling the entire corporation and that's not the argument that the government made here here the government looked only to the specific checks that had gone into the account that matthew opened the master direct to be funded by medicare and that matthew wrote the checks out of we've always taken the position your honor and i think it's in the summation it's pretty clear there's no basis whatever for the for the testimony that matthew ga that he signed a bunch of checks in blank but i i'm i think even in that more difficult case i think i would still argue that if you load the gun if you sign ninety loaded checks and use those to further the fraud of funds that you personally have acquired because that's what we're talking about here these are funds that matthew had acquired and that matthew wrote the checks for and that's the anything apart from his salary almost all of the the what we're talking about as the proceeds of the fraud that flowed through that citi bank account or the t d bank account the fraud proceeds went corporation but you know i think it's fair for the court to consider each of these clinic operations as entire corporations and to consider whether you know somebody a doctor matthews position acquired or controlled  those separate clinics flash corporations that have an ownership interest in them no did he receive any profits from them no did exert any control over their operations no did  d finally i would say that the harris case which which we do place a lot of reliance on in our reply brief is exactly the sort of analysis that we would ask ask the court to go through here a the whole idea that dr matthew controlled within the legal sense anything in these accounts is just totally undercut by the government's own theory of the case and how they charge this case and how it out of the allegations as set forth in the indictment and that is that dr matthew made false representations to medicare medicaid and banks about his ownership of these entities it was all a ruse according to the government so you can have that allegation and then come back and say well he controlled monies that pass through these accounts were set up for berman's benefit where the money went to berman and lastly what i would say about the about the signing of the checks and blank mr lewis indicated there is no basis for that argument well if you look at the checks themselves in the supplemental panix file by the government by m three contains several of these checks or perhaps all of these checks and you'll see that while dr matthew signed them he had no role in issuing or writing the names of the pay in the check that was that was not something he did that was something that berman did and the reason why it was done by government was to direct the fraud proceeds to him and others who were involved in the fraud