greenspan was convicted after trial on ten counts including the anti kickback provisions of the health care law travel act on the theory of new jersey commercial bribery and honest services wire fraud as well as a conspiracy a single conspiracy to put in compas all three objectives so all of the towns which is the site of all of these statutes require that the government prove or a similar high level of subjective intent such as intent to defraud or intent to violate if you share a duty owed i had dr to his patients or first two issues advanced challenges to of the trial court that deprived dr greenspan of his right to defend himself through legitimate efforts to raise a reasonable doubt that went to these criminal intent elements the answer to that question lies in the wording of the anti kickback statute as applied to those recounts but we need to remember that all we talk have talked mostly in you feel about in fact active are a larger willfully received by in this case the dr in return for in return for referring patients to receive services that medicare will reimburse steering would do that but the question was for the jury of whether he was steering is not the government's theory was what the jury would believe beyond a reasonable doubt and the government's argument was in part very dramatically the doctor is selling his patients blood for money and another in another moment that the the going to get exactly he he he said his piece about this yeah and what what could it how could an expert have because we needed that any differently greenspan said i'm a good doctor i think of my patients these are necessary all that good stuff and he's a defendant in a criminal case and he has an interest in the outcome and his testimony is corroborated by an expert who says objective only what he says is consistent with corruption that stinks from actually having changed the outcome and not changing the outcome is not set that is true in a public bribery case under two a one i'm looking and that's why i started in response just with the language of subsection the one of the anti kickback statute this is not a bribery case it's a kickback and is a few different offenses and the a kickback statute in particular here talks about action taken in return for the payment not concurrent with the payment not and that it's what your honour's question focuses on is most pertinent to prosecution of  i'm not calling it a defense i'm calling it evidence that's a logical logically relevant to whether his corrupt intent and particular his statutory intent of acting in return for the payments was proved beyond a reasonable doubt i have not seen and i kick back statutes that focus as i'm focusing at this moment between b one b two that use different language unlike the bribery statute where the payer receives in the same statute here we have the payment statute is the two to receive statute is one and the precise language of the two is a little different the intent of the recipient is understood to be to have to  be proved is is written in the language of the statute has some good as to who has some higher and more specific level and perhaps because these cases arise in this circumstance this suits that argument  they didn't steer at the that to to save or b l s that and the jury could believe or not believe the hype and whether they believed to be on the reasonable doubt would be affected by whether there was objective evidence and also wherever the path wherever their insurance would cover and they were free to go outside to another level if they didn't i think the testimony would be just for the discretion the trial judge's decision here just waltz decisions was and the government tries to defend this in every that this testimony was entirely irrelevant not that it was confusing or some other  sustain the objection on grounds of hearsay what was wrong was defense counsel's response to that objection saying always comes with any hearsay exception instead of saying it's not hearsay and i think that's excusable and doesn't give us a play and that's it that's not the kind of a too much to ask of a trial lawyer not to make that mistake pain of losing the losing the right to raise the issue on appeal he's opposing the prosecutor's fundamental error of evidence law and being which was in force by main argument on response to that is similar to the are going to meet on point one is a point to harvey which is that because unfortunately the lawyer had died we're stuck with the clients being the vehicle for presenting this testimony chance for the jury to have that reasonable doubt about his intent i heard she was acting on behalf of the lord so when the defendant says i checked with my lawyer my lawyer told me it was ok and he's not allowed to say what that conversation was  it's a full the advice of counsel defense because the client testified at one point the defendants are testified at one point i consulted a lawyer about all of these agreements and you when he's humble about those conversations he doesn't get to explore it and then have the finger pointed at him and say you weren't specific enough i think it's just the sandbags yours either i prosecution having to tie his hands in presenting this defense which is it's a funny kind of defense it because he was putting this on forces decision of having to advance this defense himself and doubly unfair because the prosecutors cooperate or one coin so i sat in on one of those meetings and and the lawyer was just telling him how to said to rebut nicol system really on the reason for waiting round numbers and the actual number that they settled on as as i just heard pointed out we don't have any proffer from the sense about we take it as an error and a misunderstanding of the hearsay rules homeless i don't think it's a fair reading of the record to say that judge walls ruled you can't it's an advance what your lawyer told you in this meeting about this conversation about this agreement but i'm not saying whether you can or can't about anything else the judge was saying as i'm green with the prosecutor as a matter of law and not letting you tell this jury what your lawyer told you it's hearsay why would it if it was hearsay vehicle hearsay into any argument the defense counsel expected acquiesced to the judge's ruling and the defendant didn't violate that ruling that's not that that's not fair to to suggest that the judge was ruling more now and that's not the way this record reads this because we're going we want to hear from you on the elocution issue but i think we want to do that now or i thought may we hear from you on that after right i don't think the supreme court has decided whether constructive of the structural r i have made that argument in other cases i don't think they use that terminology here doesn't seem to the direction the cases are going on real wages what came before excluding paragraph eleven which has both the christmas parties and the payments taken right around that time and these have approximate around or about language that wasn't in critchley or the presidents the construct of the men so we are not arguing a construction that by change of date or arguing a constructive amendment by change of payment the indictment would be insufficient on the six the second amendment if you didn't tell advise the defense what what is the payment which is of concrete out of pennsylvania or the shipment of sand into pennsylvania and it was absolutely one of low factual level but it was about what was the transaction that was said to constitute a violation and here the question is is put on notice or to defend but the defense had plenty of notice about both of the december two thousand and eleven both of december two thousand and twelve they're all charged in paragraph eleven of count one so i don't see the  center and there is a check that corresponds to that date that is exactly misleading descends into which the payments should be defending against until the prosecutors come stands up in closing and says for a completely different possibility that one could view the criminal justice system as being impugned by not awarding a remedy here when this defendant got the functional equivalent of an allocution before the thing judge threw a four paragraph statement a video of fifteen minutes depicting him and his family and a downward departure so he's sentenced to twenty months under the bottom of the advisory guidelines range right exactly and i thought gosh all the judge had to say mr greenspan is that right he says yes and then we're not here on this issue right right but since we are here we have to look at now what would be the effect on the criminal justice system  out that the easiest way to resolve a fire i think is on the plane and that's a plane or a test because mr goldberg's entire argument presupposes that by selecting a date and on or about date for which you have to be a pain in the grand jury necessarily must have been you know focusing on that to the exclusion of a payment a week earlier and that's simply an assumption on his part that not supported by anything about speculation but that's the nature of the construction and then suddenly in closing arguments the government says actually jury regardless of the grand jury having returned an indictment the charge is the transaction on this particular date thi pointed out when you look at the count one and the overt acts and you can understand how this happened because there is a kickback case where there is a continuing series of payments and then there's a continuing series of referrals in return for those payments and so in december we happen to have a consulting check and not long after a payment for the christmas party and then you'll see immediately after that there's charge they were furled by dr greenspan in the other direction charge a call on a specific day at a specific time and a specific call number and they had no evidence in that case of a call on that date or time ie they put in evidence of something a week and a half later and two  payment right on that date and we have proof of payment a week earlier and in terms of prejudice and miscarriage of justice we know what a jury would have done if there had been only one thing charged in that count right count two was soley a consulting payment and i want to be i want to give me a couple of seconds to do this mr goldberg of focusing solely on what happened at trial let's go back to a pretrial motion hearing that occurred in october  two thousand and sixteen october twenty sixth and the relevant pages were six o six at six twenty eight where this issue first came up and during during that discussion where the prosecutors involved the defense counsel and the judge the be the judge was you shouldn't be able to ask an improper question you should be entitled to do your research and find out later entitled to ask that question and then at the end of that discussion on page six twenty eight do your research and select hearsay and expecting to hear things so the defense had their marching orders right nothing happened and so dr greenspan guess i'm a stand in this issue resurfaces and mind you between that time to judge has excluded an expert  concerned by the time it got to trial that they didn't want this in for the truth that they were trying to circumvent those rulings and say to the to the jury not only was an informed that this was legal but in fact an attorney blessed it so i am not faulting looking back with hindsight what the relevance of this was but all they have to do in response the objection was say this isn't here it's not offered for its truth and i will point you to the skully decision right there's a judge there's a place where  hard for this court i mean i think even evaluate the prejudicial effect here of that explosion because the evidence was overwhelming and the what we do know about the advice of counsel defense was underwhelming but that that lack of offer proof is very well on the one the one thing with there was enough proof that that that is the specific testimony to the sticking to rebut was that the the lawyer was the one who was presented with the idea of dr greenspan tonight first of all that mr nicolle even accompanied him to that meeting but his his testimony was going to be that the advice about the agreement came at a separate meeting at which mr nicole was not a protest nothing judge halted prevented he never sex in fact he specifically overruled the government's objection as to what dr greenspan told where the nothing prevented him from saying that and of the relevance of any inference of good faith could only be a powerful because the fifteen hundred dollar contract he lied to the jury about that he provided a specious explanation for the christmas party his credibility with the damage that his allowing him to test what happened during that conversation when it has it doesn't follow that it's medically or logically relevant under four hundred one isn't or for one it could still bear on if you're if you're ordering additional tests that or not that bears on your state of mind as to whether you are trying to profit from this  with background about him to kickbacks is all about the two not about he won and that was kind of where i started when talking about it back that is it talks about what you need to prove liability of the pay or not of the recipient doesn't talk about the difference in from the point of view of the recipient situation there isn't a player in the story of greenfield whose position is like my client i the government's argument that you should make in effect a credibility analysis on appeal and say oh he was incredible his credibility was shot and testified this we had that evidence is an argument that the sixth amendment rights if you're a trial bars there is no such argument as mr sanders is trying to make you can't say on those kinds of lines what a jury is entitled to have a reasonable to raise them to the low level of a reasonable doubt you're going with you know after trial which is one interpretation of why why shouldn't we why shouldn't we interpret counsel statement that my client is not about to speak you  a very sort of a brilliant strategic move because you know he was able to make a written submission in it was argument seems like you could strategy but it was not one that we know the defendant understood in acquiesced and in the way that rule thirty two i and the green decision which is east was intended to protect because this is a right two hundred years older than the and the bill of rights it is one of the most i mean when the defendant had no rights at all in a criminal case couldn't testify couldn't call witnesses and you know this and the but once a month the defendant had to be spoken to face to face by the judge and given an opportunity to speak on his or her own behalf before being hanged were as it was constructed whether we have overwhelming forty one months he could have gone to thirty six months judges do this all the time make little finger apologize and if the defendant makes a good impression he's hundred eighty year old man with a high styling of cancer with a life history of good works know who took these payments and the worst flight this accepting the jury's verdict in a petty and greedy way without impairing his service to his clients and the judge is giv