count i think there's a very good likelihood that you're going to be acquitted on count twenty five and the reason for that is the case law you cited in our brief make it clear that they to do than  use haitian l's i e to facilitate a legit fraud because the services were actually provided in this case which is the distinction from the cases cited by the government in their briefing and by that i mean as we know s patients now the services then were authorized to be bill under the texas medicaid health care partnerships the t m h b and what did you just do on the testing length brothers testified that a sassy takes forty five minutes approximately the ways he takes approximately one hour rat takes approximately one hour this whole case the o's with a conviction of david do that for one patient patient l for three hours of billing that was built for five hundred and forty dollars and was paid for three hundred and thirty eight dollars ten cents by medicaid as the whole issue in this case and with defense had to encounter in preparing for this trial is that it was a mod the contrary in the th circuit where someone has the authority to use that patients a devotee that they can still be found for liable for that and in a t theft what fits circuit case holds that to opinion that's exactly right judge or exactly right in fact your honor on that question the government's case law that they cited in the brief as an example that tall of a group case it's a  as a practical matter if we were to agree with you then i am not for shadowing if we were to agree with you about count twenty five what all does that affect does that affect it in the other home holding personally see it and you know well you do the he got probation five years and i got the feeling judge rodriguez wanted to do probation but he could not because you're like me or hypothetically if you're like me your car where you make larry i can only use your car to pick up my kids from school and instead i use it to go to the grocery store about misuse or car you've you received the services but you may have misrepresented what service the reviews or or how long you used our presence or something like that however you received the serv indictment using his unique medicaid information number and name in relation to health care fraud and the background it incorporates count one thousand the background from counting involves services billed for johnson conducted the usual procedure is to conduct a clinical interview and then you do testing and then you go and then you valuation of the testing and then you produce a report of an evaluation and in this case he did not do the clinical interview and he reported he did two and a half hours of testing that the fraud here is not that ours i beg to differ disagree with counsel the fraud here is that the that that hours that were charged were billed as being performed by a licensed psychologist when it was performed by a licensed psychological associate which involves two ways one way was lawful but another way was quite unlawful and well i think i don't have it right at my fingertips but there's a footnote in our brief where they do not challenge the law for forty element a very long analysis of what use means going to dictionary definitions it means to employ something as a means of accomplishing or achieving something to avail oneself of to convert something to one service there was no about you ation it was just testy and that's that brings me to the my main point about that luck so you're saying testing your valuation in your mind if you're in the way you understand it is a right of what the tests show is that what you're saying exactly the i'm a has or i'm that there was no analysis after the fact about the test exactly exactly and the purpose of the test and there's testimony in the record the purpose of the test is to help the center the shelter where the child is that make recommendations and accommodate him once he's once the person is gone from the shelter there's there's no there's no purpose for the evaluation and also they could have started out they had his right to do the test on him but because he was going to be leaving they decided it was not worth the time and effort to do that the well i skipped a step there because initially they said don't do the test because they were under the impression that his hours it already been used up under the medicaid guidelines they said stop basically because we're not going to be able to go for this don't do any of that you ation and then later it came to pass that because it was also because he was being discharged it was apparent that misusing his identity if he's the one getting the it's not a fake person getting the test or someone being substituted it's the real person it's just determinations about maybe you know to gin up fees in appropriately  not blessing this in any way but it's still the same right person so it's not an it in it that well there's like one of the key holies of the law is that the misrepresentation didn't use the means of identification because the beneficiaries were actually transport poor and i here is a it's different because the the testing by itself had no value so the services were not actually transported and further are actually provided and further menaka emphasized that the employment ambulance providers didn't lie about who performed the work but that's the law here the the work is being perform licensed psychologist but it's not at the end didn't he theft is not between johnson and the psychologist it's between l and some unknown patient didn't he that would be you substitute the person out or you're stealing his using him to treat other people it's not who is performing the service that those people's identities are not being stolen well they're being used to a pain  superseding indictment is timely and relates back to the original die unless it broadens or substantially amends the original charge charges the central policy of his notice to allow defendant to be prepared to be called in account for his activities so in the st indictment he's charged with seven counts of healthcare fraud and seven counts of aggravated licensed psychologist the defense was notified of the change and said the evidence is going to be your client's own emails and materials we've already provided to you discovery reverse on count twenty five and i'm not foreshadowing just asking this so we know what the answer is that we have to send back to rescind it's in the hole on the whole i don't think so your honor because it did impact the guidelines for fraud it's just a plus two it's big he got he got one year for the healthcare conspiracy one year for count nineteen and then it it may have impacted his his decision on on what the sentence as of the other offenses so it might have an effect on what he says he already sentenced just on the statue of limitations superseding indictment issue i just can't remember was any pretrial motion filed such as a motion to dismiss or anything thank you we appreciate the arguments of both cancels and helpful today and we appreciate your comment dating with this novel format we were able to hear and see you both so thank at this time your case is submitted and this session of the court will stand adjourned pursuant to the usual order thank you