in this case i plan to spend most of my time today talking about the first two issues that we raised on appeal in brief for the poor and the reason we focus on those two issues obviously because they both relate counts two and to seek the possibility of a life sentence in prison for a white collar fraud if the fraud violation statute results in a death that's a huge difference it's our position that a judgment of acquittal should have been granted on counts two and three because the statutory violation the way that it was alleged in counts two and three of the indictment the conduct that was punished by those counts was not the conduct it government alleged actually resulted in any d matter or in terms of prove in order all the statute criminalizes is the execution and this is an interpretation that favors the government because it allows them to charge one scheme ten or twenty or thirty section and that's really the crux of the entire argument that the execution of the scheme is the violation of the statute the government has the power to define the execution as they want to do it and the government has successfully done this  allege that there was this the real problem prescription the fraudulent prescription was submitted for financial reimbursement the five project prescription was also used to obtain drugs that the person overdosed on and what you were to worry about on charging decisions are whether the indictment ambushes you or or catches you by surprise or exposures you were very pretty or something but in this instance didn't you know that a big part of the fight was going to be over causation yes and that's why the only trial after there wasn't any surprise there it i don't understand why this whole thing doesn't come down to a jury question over this simple proposition is true or not did the execution of the scheme cause result in there's there's no question that notice was provided as what the trial was about but if the government is very big deal about indictments is whether are there are nothing about an indictment is we want to let people know what own lives could have been saved if this individual had not engaged in this kind of fraud and that positions in gauging the health care fraud scheme ever got to take into account the fact that a certain one of our sloppiness is going to put people's lives at risk that's what congress was after and you know if we case is charged identically to webb and they have said webb survives appellate scrutiny and therefore this case applies survived to tell its root which sort of was that it that was in that was in the that was in the fifth circuit the charging language in that case which they they don't quote in their brief but in footnote thirteen they reference but when you look at that it is precisely the same charging language this is a page eighteen of that indictment as was used in this case i heard mr rigby say a moment ago that the date of counts two and three which is the date of the claim somehow supports their argument that the execution is limited to the filing of a claim well well they also use the date of the claim for each of their executions however of course as the appellant concedes the execution and webb just like the execution in this case as charged by the grand jury and  found by the pettitte theory includes more than simply the filing of a claim with medicare because as joe presented as ron has pointed out no one ever died from a paper and if congress wanted to enhanced penalties for health care fraud that resulted in death applying the highest highest level of causation which is what's what's present here then if the court were to adopt  argument that statute would be unprovable it would be utterly unprovable in this case the court should affirm the defendant's convictions as to count two and three because the jury was presented with overwhelming evidence that the defendant committed health care fraud resulting in death when and this is the key this is this is how the execution was defined in the indictment and how it was presented to the jury and how this report instructed that you're when first the defendant directed is not an physician employee is to attempt to interpret x rays and then prepare phony doctors reports as if real doctors had done that to when those phony reports were then given to the nursing homes where in the case of counts two and three and v k and counts two and d m c and count three live and then finally in the case of counts two and three where the defendant saw a reimbursement from medicare in the amount of eight dollars and eighty seven cents for m v k that's how much money he was able to steal from medicare because he had one of his employees prepared this report rather than rather doctor and two hundred eight dollars and eighty seventh century and two hundred eighteen dollars and seven thirty six cents in the case of the mc at trial medical expert testimony was presented that in both cases those victims were experiencing congestive heart failure that that congestive heart failure was visible on the x ray to the trained eye ready ologies but that because these x rays were given to untrained know that's what there's an air of unreality to this argument because this was a hard fought case pretrial and that front and the whole issue was over these misread x rays and whether having an x ray tech attempt to read an x ray and submit a claim to medicare for it was what was going on at this company or whether it's the defendant claimed he had no idea this was going on it was being done essentially by rogue employee and  and i say that because and the defendant the appellant in his reply brief incorrectly states that in the pill mill cases writing the prescriptions is a they use the word predicate a standalone predicate violation of thirty forty s you would not have a federal crime you might have a state manslaughter charge or a civil malpractise claims the resists of jurisdictional well it is that they go into the matter that they example using the mail fraud statute if i hatched a scheme to defraud you to get you to give me twenty thousand dollars and i did it because we were friends and i knew you and i talked to you in person and met you at your before i mailed it the death occurred before this claim was filed it is the filing of the claim triggers federal jurisdiction because the execution has multiple components having the techs try to meet the x ray report on sending that x ray to the nursing home so they think they've actually gotten the service and don't call up medicare and blame is another component and then it submitting the claim is a certain point because this is an attempt statute the crime is these i think they absolutely support the way in which we charge of this case called one of the cases they charge i think it's particularly that's the one mr rich you mention coleman says that when an act is quote chronologically and substantively independent from other acts charged in the scheme it constitutes an execution so thinking about what we have here every time one of these techs goes to a nursing home and they take an x ray and then they try to interpret it and prepare one of these report independent those are chronologically and substantively in india and why each time they do that and they did it again and again and again counts two and three are just two weeks samples but it was presented to the jury that this happened on thousands of a case now there was also evidence by contrast of x the in further and we recognize that sting should for example an act in furtherance of the scheme was and this is described in the summary of our of our facts and in this in our brief the c e o defendant to deceive his chief financial officer ran his personal expenses through the business and dress them up like he was paying physicians to interpret x rays because you know if you're if you're getting this much if you're going to get a million dollars in medicare reimbursement and you're not paying any doctors the books won't balance and the c f o will catch wind of that sort of to hide that he told the c f o well all these bills are from doctors and they were really bills for his person that was an act in furtherance but when they go out and take an x ray and don't give it to a doctor and prepare one of these phony reports and give it to the nursing home and then tell medicare we hired a doctor to write this report payoffs that is an execution of the scheme and it happened again and again and again and two and three are just two examples of that there are other examples of that in the cause doubt and that was going to be put before the jury as a straight forward question factual question of causation and the defendant knew it and you medicare and so the whole trial was was mostly irrelevant evidence and it didn't occur to anyone that that was all around you the chance to go after your expert or ask if we had a two day doubt or hearing and just heard our sound we had it in the say in the don't want to make sure that you had a chance to go after the expert or to his heart's content if as fully as yet there was no for talent and there had been the expert had been on step two days pretrial so they had a full what you usually don't have they had a full preview of what it's all over as an expert on the stand the better part of i think it was at least a day and into a second and there were two experts both of which they because the phony x ray report said no c h f and that if she had been transferred she would have been treated and that the treatments were highly effective and so but for the misread x ray she would have been transferred and treat instead she stayed in the nursing home lingered and died so they present two different possible scenarios but in both cases the medical experts said understander medical practice were d m c she would have been cleared for surgery and it was you know an active decision and then in the case of envy katie said under standard medical practice but for the miss red x ray she would have been transferred to an acute care facility since that never happened there was no one we call to say you know what happened when she got there she she was left to die nursing all because her congestive heart failure went on treat it but the expert testimony was the treatments for congestive heart failure are highly effective and would have saved her which is the the seal is that does it make a difference so if this is the elements do not require that the death be forseeable but in this case evidence was presented that unlike the typical health care fraud case which is a just a billing theory a felony murder type three would have been if the tech on the way to the nursing all ran someone over that would be a felony murder type theory or prosecution here there was actually a strong causal connection between what was missed on the x ray and what the patient eventually died from with there's the strict liability scheme there's a problem i don't believe so you're i mean this is one of the rare criminal cases where the congress sought to and entertain this is not a mandatory minimum like in the drug overdose context but to give the trial court the discretion based on all the facts to entertain and enhance sentence and in this case we think the facts were agreed just and justified the sense that was  reading the x ray alone is a crime it is a federal crime and it doesn't matter if the submitted the bill or not they charge you as if i mean this he sometimes twenty or twenty five and they got convictions for it and the judge i'm not sure i can go so far as to say that congress could not write the statute this this way because the legislative branch has the ability to determine what we were all after it are predicated associated cases and here there is death because the alternative is to leave something like that to a preponderance an does this make sense what you're claiming and it doesn't make sense in this case the fact that they could have done it another way and possibly could have gotten this done successfully i think in a different way because it is not a