regulation which indicated that if there are multiple patients being transported there have to be a pro ration of the transports which was different from the that a cap of medic our regulations the defense that he was following which allowed these kind of transports under other conditions the problem that arose was that the indictment just referred to this the government referred to this regulation but it became clear during the course of trial that that regulation was trial is rather than fly to prove it is a violation of regulation which is like a violation of law they switch to basically this being a violation of some sort of insurance company policy now the fact is that with regard to and but looking at it from the perspective of what was presented to the grand jury to obtain a charge and what was presented to the penitentiary to allow them to return a conviction on this charge it's very clear that two completely different offenses  so that from our perspective once you get into the position of having a constructive amendment of the indictment which there's clearly satisfied there's no question of of prejudice or anything along those lines now what the government says in respon including griffin in verona which talked about the fact that if the if the penitentiary was permitted to adopt and a theory of prosecution which was legally incorrect as opposed to factually correct were not actually charged with violating that regulation i agree with that but the problem with that is that if one looks at what the evidence was presented before the grand jury because the granger we had to have got no evidence of this regulation because they included in the korean bill and you say how does the grand jury return an indictment on this case there's no doubt that the grand jury returned an indictment on the case because there was a regulation which required permeation which didn't occur on these beliefs so when you ask what is it that this trial arjun was based on in front of the grand jury the very fact that the that's what gets us into the broader and griffin argument because there was no legally justifiable basis for finding the object of the conspiracy relating to the multiple transports because that part of the indictment thi teens are testifying that these people were picked up at different locations and dropped off at the same location or picked up at the same location and dropped off at different locations that would have been a proper going apparently under medical there is no false statement in terms of whether these people were car regulation at the time that this happened what the government fell back on is a claim that the only reason you have to prorate is that the insurance company had a policy which required you to progress but the root of the regulation which required probation didn't come in for another two years and that only was discovered apparently during the course of the trial so i think that had this been discovered before trial the government could have gone out and superseded the indictment they were kind of in a pickle i understand that but that doesn't that doesn't mean that you can violate the defendant we get to a situation in which the jury's decision which we don't know we don't know how it was based the jury's decision could have either to based upon believing that evidence or it could have been based upon the notion that the defendants were guilty of the conspiracy and the record keeping on the part of the seizing agents were so sloppy that it was almost impossible to find out what was where and when and how it was picked up and where it was picked up but that information was was brought america which is the company that was the insurance company the intermediaries for medicare yes and she was responsible for explaining the policies and the practices in paying out on these bills and she let them know that this information information w material to trans america and therefore medicare when they reviewed the bills and pay it out she let them know that they would in fact be paid a lower rate per patient when there were multiple patients in the ambulance and despite this advice an independent spirit in the other great board a medical regulation which is not in effect and then later on the evidence comes in and based on whatever prejudice might have been raised the government offer to strike that language instead all of the defendants refused that offer and they were very very shrewd to have done so because they made the most of that error they asked the court to judicial notice of the two thousand and two government asked for that kind of instruction in the court said well you're wrong well the government this was your area you're going to have to take a beating for it and we did it was mr levine who was trial counsel for mr spears who during his closing argument went to great lengths to say that who works for trans america was not a congresswoman she can't make the laws and therefore her statement even if you believe that she put the finish there on notice his conduct was not a crime as a matter of law because she can't create laws he was able to use a defense that legally incorrect because the statutory violation of health care fraud does not require regulatory violations and he argued that it did and because there was no regulation in place that the jury should acquit mr schwarz on those counts now the jury was not fooled because they  proper instructions from the court in that the title eighteen u s c i was using eighteen u s c thirteen forty seven when you read that your instruction did not require regulatory violation and despite the fact that they knew of the government's error that it was pointed out was an issue presented to the jury and it was rebuffed rejected by the jury if there are no other questions on that issue i would like to move on to the issues raised by defending  and also point out that in the finnish fierce reply brief he indicated that the issue of blood confined was really limited to a certain number of counts in a certain number of patients and i think the factual record more than supports that that was the evidence came in was so prominent trial was directly relevant to the issues before the jury and it was not irrelevant and that particular argument was not great raised in front of the district courts not really is on a plane air reviewed this court or other similarly  had a chance to to address that i have addressed it in the brief that's the courts reviewed it but clearly the evidence we are complaining about is evidence that twenty five to seventy five percent supposedly of these patients were ambulatory just bec angular tory doesn't mean that they can't be transported by ambulance there are other ways as why they could be transported by ambulance and they never try any of those allegations to specific claims that these people were killed in that fashion and finally just very quickly i wasn't who was running around looking at all these boxes we didn't ask to join in that in that portion of the argument i would just indicate to the court i believe that the record reflects that while the trial counsel did not review the boxes that an investigator for the trial counsel went down