human resource outsourcing employee leasing company and it was formed by mr wickfield it before two thousand and three in nashville which i think is significant he was charged basically with failing to fulfill payroll related obligations preparing false employment tax returns embezzling assets of an employee pension benefit plan and diversion of client funds this was not your typical financial fraud case i think if you take a look at the record so many was a legitimate company that enjoyed an a rating from the better business bureau as late as january two thousand and ten which was six months before federal law enforcement agents came through the door in july of two thousand and ten the company was profitable that was established at the trial it was successful until problems arose in their health care plan and that's one of the issues that i raise in my brief although mr would feel was charged and prosecuted for conspiracy wire fraud theft from arista money laundering filing false payroll tax returns there was an uncharged allegation in the indictment and it was described in the indictment as misconduct related to health insurance in the speaking allegations of the conspiracy count good couldn't that support why or the wire count fraud it was not alleged that way arthur no but i'm just making the point i get the idea that if you don't put in the indictment that can't be a cow that goes to the jury ok but it's possible as in this case where you have a lot of different counts or a lot of different potential counts some of the non charged ones can still be relevant to a charged one i guess is all i'm saying so i'm trying to figure out what the problem with that is i don't understand what the court is saying but this  misconduct related to health insurance was untethered to any charge in the indictment he was just sort of thrown in there for whatever prejudicial value the government could get out of it i was concerned enough about it to file a  to make sure i'm understanding exactly what you're saying you're saying and like the factual statement in the indictment it mentions this something you're calling health care fraud but then doesn't charge it and then you think the language in the indictment should have been removed at some point that's you and that's my that's my argument i'm just my response and or trying to make sure i get it and i guess it's a four three issue as well is if that underlying fact allegation is material to wire count fr m i guess some kind of an a so be it which i don't think it is relevant to the wire fraud there was i not i don't think there was an allegation that the government made that there were that wire fraud involved the theft of healthcare dollars there was never a connection made all of the wire fraud counts were related and that's another thing i was going to talk to the court about today was theft from the four zero one case so we have something thrown in an indictment labeled misconduct regarding health care he's not charged in a substantive six sixty nine count it's not an object of the conspiracy it's just sort of thrown in there if we had in gauge in some sort of a four zero four be zero three analysis it would not have been relevant would not have been able to been given to the jury in the form of days of testimony improves the only reason they were able to get it in is they just sort of gratuitously included i the indictment i brought that to judge campbell's attention before the trial i guess i'm still struggling if it's in the indictment you're on notice and why can't health care fraud be wire count fraud you know wire fraud no well there can be candid  shouldn't be tied to a substantive wire fraud count and it was simply no i don't tell me the case that it says this that you can you keep you're not allowed to mention something in the indictment as a freestanding form of misconduct and therefore can't mention it in the jury trial if you haven't specifically played it under the wire count for i am not aware of that why should the government be able to include unfairly prejudicial information an indictment that they don't have the burden of proving beyond a reasonable doubt it's sort of like having a title twenty one indictment where it's a cocaine indictment and you throw in some language misconduct involving heroin perhaps you don't have very good proof on misconduct involving heroin but your point that this corrupted the grand jury process and the indictment or is your point that corrupted the trial because we're up to the trial the we have a jury after ten days of hearing proof and testimony that basically gets out there gets back in the jury room and i don't know what they could have done with all of the testimony that they had heard about you don't care to say that none of the health care alleged health care fraud used wires there was no proof in the record that there was any wire fraud calton the indictment i understand the indictment point you're making ok we're now a trial you have an indictment ok so we're now at trial we have a statute that tells you what wire fraud is where you're able to get up and say these allegations that this evidence about health care fraud doesn't meet the elements of wire fraud and therefore it's irrelevant and prejudicial were you able to say that i said it to judge campbell before the trial and i argued it to the jury before they retired there were no priors there was no use of the wires in the health care fraud is that is that was that your theory there was there was no use of the wires that was specifically proven to the jury or even pointed out to the jury all right it was just sort of a sideshow that was designed to be i believe unfairly prejudicial to mr wickfield and to be sort of an emotional trigger that hey he's a bad guy he was taking your health care money and he was a lavishing it upon himself when there was no proof of that and i don't understand why it was included in the indictment if you analyze the indictment you have a conspiracy with specific objects and then you have substantive mirror those objects but this was not an object to the conspiracy and there is no specific substantive camp there was no six sixty nine count that was included in the indictment so i think it was pretty obvious what th was the government was trying to do and i think they were successful at what they did it portrayed mr wickfield in a very unfavorable light what's your best case on this that this is reversible error with the best case of i read it i'll go yeah they really should have done this well it may be what i argued in my motion in limine that it was on a fairly prejudicial case as case with the best case if i read it six circuit u s supreme court realize you know that it would be the four o three cases that are in my   also wanted to talk about the conspiracy count central to the allegations in the case was the government's insistence that a conspiracy existed in this case they allege that the conspiracy existed between mr whitfield his wife marcia whitfield and his father in law todd and i know the courts had a chance to take a look at the brief and the excerpts of the testimony of mr todd in this which field there was simply no proof of any agreement to violate the law all of the testimony that was plead guilty to conspiring to plead guilty those guilty pleas put before the jury they were was there no evidence well i think they had very both individuals had a lot of difficulty explaining to the jury what they pled guilty to and what they pled guilty in my cross examination of both of these individuals they were really unable to articulate that they had engaged in project conduct that they had intended to defraud anyone on cross examination mr todd method that he had not spoken to his son in law between june of two thousand whitfield had basically fallen off the face of the earth that he was not responsive he was not around the business she was not able to discuss any of the things with him so there was no affirmative proof presented by the government that these people ever spoke there was a common theme from both the conspiracy thing is your main problem with marcia testified about her is your main problem with your client testified about orders of there being a conspiracy among the three people is your main point is not testimony that brian joined this was your main point that no there's no testimony that marsh you were part of that there is no testimony that there was an agreement to defraud anyone among any of the indicted individuals or the unindicted individuals there was a common theme of the government's either cooperating witnesses or company witnesses that at the time the payments were being delayed to clients there was no intent to defraud anyone and that was consistent with the testimony of employees the c e o a man by the name of david john quit sort of payroll supervisor by the name of kathleen madison madden's both testified that they believed in good faith that if the company could delay a client for a short period of time there was an excellent chance that they could get that client paid miss madden conceded on cross examination she had no intent to defraud any client by delaying the client she thought it was a way that they could keep the company afloat so there is a real absence of proof of any existence of a conspiracy there's no proof in the record of any agreement among anyone to defraud clients and that was a deficiency that i saw in the government's conspiracy proof and if you have a chance to take a look at the transcript excerpts of some of the witnesses that i put in my brief it's pretty remarkable that they are unable to articulate a what they did wrong what they pled guilty to and who they ever spoke to about reaching an agreement to defraud anyone it was also remarkable that the government was suggesting to the jury over this ten days if this was a massive fraud the government had access to all of the company's records they came in on july the sixth two thousand and ten and there was some proof at the trial that mr whitfield had learned through an anonymous tip that the  government was going to come and raid his company he had a meeting with his employees there was no effort to take anything out of their business all the electronic media were there all the papers everything remained in the business but in the face of all of that paper and electronic material in the face of all of the indicted and unindicted individuals no one testified at the ten day trial that mr whitfield had instructed them to do anything illegal or insinuated that he had good morning honors me please the court room and for the united states i'll go in reverse order from where opposing counsel left off the jury had ample evidence to conclude that woodfield his then wife and father in law entered a clients of the money that was promised for these human resources functions now the evidence of the conspiracy theory can glean evidence of a conspiracy from action and there was plenty of concerted action in this case the best evidence that the government had on this was the fact that marsha whitfield testified she knew what her husband was doing that he was diverting client funds to these unauthorized projects and that whitfield himself asked her on several occasions to withdraw money from the operating account for a ski boat for home and of patients for jet chargers jury could reasonably infer that whitfield would not have asked a lower level person comply like the others kathleen mad in the opposing counsel mentioned that were completely unaware of the scheme at that puts them together the jury heard similar testimony from ed todd todd testif late two thousand and nine he wanted to retire from the company he wanted with field to buy him out and whitfield says well that's dependent on you keeping the cash flow coming in he was the director of marketing and so what does todd do he double check this in the record and submit a letter i did not see them listed as exhibits that went back i they were mentioned in the typical back and forth on direct when are the a us say said you've played guilty yes i p conspiracy you brought up the plea agreements as opposed to them because sometimes i would think the parents would bring it up to show they're doing this to get a lower sentence or something so we brought it out at i assume initially to bring up the sting of that in their direct testimony to say you you've played guilty to conspiracy are you hoping for leniency yes and that's how they came out i did not begin double check i did not see the plead  record it was an exhibit i'm just trying to figure out if they said that i pled guilty and here was what pled guilty to a conspiracy involving these three people to defraud i think it was more perfunctory than that they just said i pled guilty to conspiracy but i go back and check the record and a letter if i'm incorrect mr strong answer is quite right that on cross and he asked them did you enter ever enter an agreement and they could not identify time that they sat down and hashed out this scheme the three of them and they cannot recall specific conversations but the that's not what the government needs to sustain a conspiracy conviction this court has said many times over that a conspiracy can be found on the basis of circumstantial evidence we have that concerted action here and that the conspiracy agreement need not be formal and i think that that's probably what the witnesses were responding to to mr straczynski cross that it conspiracy can be based on an informal agreement a tacit understanding and you have three individuals the evidence show that whitfield himself was the one who was refusing requests to fine client applications i think six or seven witnesses saw many employees testify that would field consistently refused complaints were escalated to him he still consistently refused and then it is mark marcia who is helping him withdraw money from the operating account for personal expenses and ed is of lying to those clients to keep them in the fold if he testified if i told them the truth as to why their health insurance claims would were not being funded they would all they would all leave and we would go under that is ample evidence i would argue  considerable evidence for the jury to and for a conspiracy among these three individuals i'll turn next to the other claim that mr francis raised here this morning the indictment language respectfully disagree with his characterization of what our charges said our charges in compassed the health insurance of facts the evidence that we put in trial and now i have the indictment here document one page id fourteen the conspiracy talks about the scheme to defraud the manner and means of the conspiracy included the conspiracy would fail and did fail to adequately fund a health insurance plan that would would indeed fail to pay health insurance claims full timely basis and would indeed fail to would end did divert client funds intended for payment of among other things health insurance premiums so the entire scheme to defraud that was the foundation of the conspiracy included not just the retirement contributions not just the payroll the failure to process payroll correctly not just the failure to pay child support but it included the mail the smell of ministration of health care clean in the same to convict on wire fraud we have to the government has to approve the use of the wires in furtherance of the scheme and i go back to my original observation the scheme here in compassed the health insurance claims so the district court correctly recognized that this was appropriately charged and that the government appropriately submitted evidence on this basis during trial so it's not surprise language in the district court correctly denied this claim below and mr  the conspiracy there was no written agreement there was no verbal agreement if you take a look at just a couple of passages of the testimony of the plea agreements themselves come in as exhibits that were they just referenced in testimony honor as i stand here right now i don't recall but a practice has developed in the middle district of tennessee that was not in practice when i was in a usa we're now they are being offered as an exhibit to the cooperating witnesses testimony and personally i always wondered why that would be admitted as an exhibit to an individual's testimony where it's as you know rife with all sorts of self serving language about bolstering their credibility and their veracity and it has a factual basis sometimes it will go on for pages and pages that you're really not able to adequately confront and cross examine but i apologize for not being able to remember but that has been the practice over the last several years the testimony of mr tague the father in law of just one question where i asked him quite simply between these are the dates of the indictment june two thousand and eight in july sixth of two thousand and ten which are the dates alleged in the indictment the conspiracy that you entered a plea guilty to did you reach any agreement with brian whitfield to defraud your clients i did not i did not reach an agreement with brian to defraud and how about your daughter marcia whitfield between those same dates did you reach any agreement no sir and then looking at his wife's testimony where we talked before about this method that they used when they got in a little bit of trouble at that the company trying to hold off creditors they would delay paying them i asked her this question you all at that point were trying to delay things getting paid is that right correct but at those moments in time when you were delaying things you didn't intend to defraud your clients at that moment in time did you and she said no as far as the court's question about the misconduct regarding health care if you take a look at the substantive wire fraud candidates they are not tied to any misconduct regarding health care if you take a look at each of the substantive wire fraud counts they allege theft from the arrests a plan from the four a one k the first three of them i think the proof establish a trial that all of those clients received their proper for a one k contributions and the fourth one was deposited into account that that mr wickfield didn't even control so i think the wire fraud counts in the indictment suffered from the infirmity that they were just not tied sufficiently to a scheme to defraud mr whitfield had a what do you do something else or what well the problem that i had with the judge is they were not related to the conspiracy they were not related to any substantive change of the manner and means by which with field field and sought to accomplish and carry out the conspiracy include the following payroll related to fund health insurance plan i mean why couldn't they provide evidence that supported that i mean it's right there  reading it too small up no no you're not you're reading it correctly but then why not make it at least an object of the conspiracy why i just know but it seems a little strange that things are alleged in the come in the indictment and you can't provide evidence of them i mean what i mean i'm not an expert on indictments and what you can do with them but it's just on the surface it would seem like if this is something that's part of what's alleged in the indictment that you would be able to prove just there's something disingenuous object of the conspiracy that there was an agreement i mean if it's a man or in the mains why can't you prove i'm just asking i don't really know because they're white why can't you show the manner and means in your proof because i think that there needs to be sufficient proof of a criminal violation other than just casually there's many things that i'm sure a prosecutor would want to include in the matter and means if they knew they didn't have to prove it as an object to the conspiracy and didn't have to prove a substantive lie down through what they have to prove object and means not to eliminate some other proof that they have to make of the elements of the crime but that it's proof that can be presented because it's it's a that is a means of accomplishing i just think it's  y proof it's unfairly prejudicial it's just it's a way to avoid a four zero four be analysis you can stand up and say well this isn't governed by for a for b it's in the indictment well it's just sort of an outlier included in the indictment  shoehorned into the indictment where they have no responsibility they have no responsibility to prove it is an object they have no responsibility to prove it beyond a reasonable doubt as a substantive if a way of a calm i'm just trying to understand the theory no way of accomplishing the objects of conspiracy is laid out in the indictment but it's not required that you show each of those ways that's laid out in the indictment that they're then precluded from presenting evidence as to those ways in their proof to the jury but your argument i'm trying to see is that the argument my argument is if you feel like you have sufficient proof to prove out misconduct regarding health insurance if they believe that mr wickfield knowingly willfully and intentionally stole health care dollars and lavished that money on himself well then make it an object to the conspiracy or make it a substantive count but just don't throw it out there is sort of the gadfly theory and we'll see how it goes and then have no responsibility get all the benefit of all the is four three i mean that's four of three and four or four go together and they're always go together so you're making four three argument i'm just saying one species of for three argument this happens a lot and it does but in my experience i you counsel the case will be submitted