yolanda now and the defendant appellate in this case in this case the district court aired we did denied this now once requested safe harbor jury instruction in order to understand how important that instruction was to her death and so i think it's important to note the centrale of the of the kickback allegations that were contained throughout the indictment particular counts one in six count one the conspiracy to commit health care fraud charge there was an allegation that the false and fraudulent claims that were all timidly submitted to medicare made medicaid were the product of kickbacks in the manner means section on paragraph sixty kickbacks references made of the kickbacks again in fact throughout the indictment employ so that charge not necessary i i'm not sure they did defense counsel agreed i think he acknowledged my recollection of the record is he acknowledged that there was no evidence that either mr boskin or mr jackson don't have any but later he came back in and rightfully and correctly informed the court that there was evidence and that evidence was the testimony of carl of cornell miss parno testified that he quote unquote outside sales people all signed written contracts employment contracts with yella bone spelling out their duties and spelling out the nature of their compensation and i believe exhibits fourteen a and fourteen b which were know that he did urge that the safe harbor instruction be included i think keith and there were two charge conferences by the way and i believe that he very urged it the second time the government points on its brief or claims and it's very you did the defendant did not object to the failure to give the safe harbor charge and you don't even address that in your reply brief you never say one way or the other which you know so it appears there was no requesting that requesting an instruction doesn't preserve and error you've got to object now you keep talking about a sue a spontaneous instruction that threw me a little bit you say that the court failed to su there was evidence in the record sufficient to raise a fact issue as to whether or not these two individuals in particular were employees that the court should have sue a sponsor a included the safe harbor instruction the charge now that you don't make that contention you attempting to communicate in the brief was that it should have been done on its own and that i would agree the judge parts of it is less than clear and what i wanted to point out though again there was some evidence in the record that extent that they had signed and again that was the most cornell's testimony with respect to the the fifth amendment or the point of error that the prosecutor made it in permissible comment upon testify you know the courts the million or with that comment the context in which that comment was made there's one point that i would i think once again government claims plainer that's correct that's curt and you can see that and i believe that is the correct standard and but i do want to point out i think the government's brief there is one mistake that i think it's important for me to point out of that is the government makes the claim that in our brief it page twenty five that we claim that there was a contemporaneous objection by mr a smart or when miss frazer made that comment and that's if you look at page twenty five of our brief i don't claim that it was contemporaneous simply in fact the language i cite the exact language your honor in regard to the prosecutor's objection yesterday so i think our brief is pretty clear we weren't attempting to imply that there was a contemporaneous objection there wasn't mr s marking back the next morning outside the presence of the jury and made his motion for mistrial based upon that of course the gruesome versus california case the cases that talked about the standard to be applied i think the real harm in this case is that the comment by mr frazier when mr s myers motion for mistrial was denied he then requested the judge late again instruct the jury about her right not to testify and that no adverse implication could be drawn from that and that the  proper procedure would have been for miss frazer to simply make her hearsay objection and then stop so it's miss now its position that because it was a comment upon her failure to testify and because the jury could have necessarily drawn that implication from that comment that the motion for mistrial should have been been granted with respect to the to the most multiplicity argument the or you get into that yes or your client was also convicted on one or more social social security charges and i just want you to confirm that that's not it issued before so i don't see it anywhere in your brief that you're challenging corral you had eight of your own they had the cases backwards and one of the case involved the general conspiracy statute the other and all the conspiracy specific marijuana conspiracy and of course in this case count one we have the general conspiracy statute and then count six specifically the anti kickback got you now the government have this excited i believe that it is jones and the  case stands for the proposition that it's not multiple that the indictment was not multiplicities based upon the holdings in those cases and therefore the judge like did not air when he denied this now it's pretrial motion for dismissal based on timeframe of the two conspiracies in the jones case the don't the charges have in that have at least one element and one that's not required to be proved in another your honor it's our position that they don't but i know the government's alleged that in count six they had to allege overt acts which were up which weren't required for count one but a fair reading of count one we would submit includes the payment of kickbacks to mr boss has in this mr johnson in particular and it's our position that there is not a fact that you know course of point walker that there is not a different fact is not a fact it's an element in that were refused but you don't you don't brief them so is your only jury instruction issue the safe harbor and your instruction concerning colonel i believe multiplicity as well your honor that mr a smart requested a multiplicity instruction instruction be included and judge away correctly pointed out that he had met mr s margaret not submitted a written multiplicity instruction so i simply feel that mr s tire preserve the error on that point and i wanted to argue that as far as the jury meyer talked about so far over during his opening statement and it was discussed throughout the trial i believe it was discussed with the case agent there were a couple of exhibits up believe that this is exhibit eighteen eighteen which was actually a print out of the statute to go to federal to see if our was a printout of that statute as well as the law and those exhibits were admitted in evidence now prior to closing argument the government moved to have those two exhibits the siop arps going up the safe harbor exemption move to have those excluded that they would not be considered by the jury based upon judge likes ruling that safe harbor instruction was not going to be included in the charge and  judge late granted that request by the government but i think it's important note that the safe harbor was not just some minor defense that miss now in throughout there was the heart of her defense mr s mark referred to it now he d say your brief takes four pages urging that an obstruction of justice and handsome was your honestly applied when it wasn't applied all the major error judge and i didn't want to leave here without acknowledging that we are i made an error that was a misreading i'm embarrassed that it is included well i wish you'd at least conceded that in your reply brief in your reply brief you just talk about the other three you reply consistently refuses to acknowledge issues the government has raised and either can say see them or challenge them that's the whole purpose of government is absolutely correct there was not an obstruction of justice announcement it was just a poor reading of the record without i thought i believe my time is is almost up unless or any other questions opportunity to argue about the instruction for safe harbor so i believe that it was preserved as to those two it wasn't preserved in their brief your honour's because they did not they only limited their argument as to parno that the instructions have been given us apart no but because we're discussing it here today it was proper that judge lake deny the instruction is to though it's two individuals under the darden factors so those two individuals testify that they exercise discretion over the manner and means in which they worked they testified there were no tax withholdings on their money that they received from now on and it's important to know your honour's that that johnson and boss guys were bona fide employees that entitled them to the safe harbor instruction moreover they both testified they were paid on commissions basco specifically testified that he went and picked up his commission ch people were of all of the factors and garden are a least at least four of them are evident here they they exercise their own discretion over the manner of means in which they worked that was not controlled by  by now when there was no withholding on their tax returns they sign no contracts for employment all of those factors are required in order to you to be entitled to the bona fide ex employee exception which is a very restrictive exception and those factors are not evident in this case and judge lake was correct in denying instruction as to them with respect to multiplicity the before i get to defense counsel states that a multiplicity as instruction should have been given that's a separate issue from the motion to dismiss the indictment for a multiplicity grounds and it was not briefed and in their briefs sufficiently for the government to respond to an instruction for a multiplicity with respect to multiplicity and those counsel i think you know this record pretty well but every time you use the word believe i've got a weakens what you're telling us so if you are certain don't you believe again leave raises the red flag thirteen forty nine which is the conspiracy to violate the the health care fraud or to commit conspiracy to commit health care fraud and also under three seventy one which is a general conspiracy statute t examined both of those and held that there are distinct conspiracies distinct convictions that involved separate elements and therefore there is no multiplicity that in addition under three seventy one overt acts are at their briefs the government did not make a mistake by arguing that there was a no contemporaneous objection it's very important look at page twenty five of their briefs the way that it is laid out because the way it's written cites page twelve fifty five as being all of contemporaneous objection to the prosecutor's remark and that in fact did not occur the prosecutor made her remark and defense counsel immediately he stated for the board that he wanted to rephrase the question and he continued on questioning this witness for thirty pages of transcript after that there was a bench conference and the defense counsel never raised the objection the following morning defense counsel raised the objection therefore but the way that this laid out in their brief is the it's all consumed by it looks like a contemporaneous objection was made by the way that is laid out and most importantly by the record side so there was no error in the government's brief quickly addressing the two standards under bros there's no manifest intent on this record to establish that the prosecutor intended to comment on nouns failures testif the context is equally plausible that hearsay objection was made defense counsel cross the officer on the two thousand and six report that was prepared by another officer that contained a summary of yet another officer and in fact defense counsel referred to this as a report on the report after two questions the prosecutor made her hearsay remark she continued to make your say remarks for several more questions there after the jury would definitely not necessarily construe this as an improper remark it occurred very early in the trial on day two of seven days it was the united states third of nineteen witnesses it was an isolated comment it was not a direct comment on the defendant unlike in the sports holding in griffith where the defense counsel tongs to the defendant during closing argument excuse me when the prosecutor timed to the defendant during closing argument and stated would you like to take the to stand and testify there's nothing like that in this case that occurred during the government's case in chief and there was no indication that nalang was going to testify in fact the defendant defense counsel only informed the board on day five that now and was not going to t d there's no adverse effect on now in substantial rights the context was isolated it was not direct and there's overwhelming circumstantial evidence in support of guilt in this case which has not been challenged today during  the district court erred in refusing to use now once proposed say for a jury instruction it was an abuse of discretion discretion by the district court not to include the safe harbor instructions in the charge in this case the district court erred  refusing to use now once proposed safe harbor jury instruction and finally the district court refused to incorporate now its pursuit proposed safe harbor jury instruction is george to the jury asked such the district court so we take issue with the government's claim that