my name's bob wyatt and i represent dr steven lee yes your honor we are here this morning asking the court to reverse the conviction of dr steven de lia in the eastern district of oklahoma where he was charged with a single count of health care fraud dr de lay was accused of violating the law from february two thousand and ten through november of two thousand and three and these charges were not brought until june of two thousand and sixteen which is clearly beyond the five year statute of limitations and to the general statute of limitations we've raised basically three issues your honor first of all that the statute of limitations precluded the prosecution of dr  there's a sub issue with respect to that number two we have argued that dr d'elia was denied in some respects his right to self representation and the sixth amendment and the fretted decision and that the evidence was insufficient to convict dr in this particular case civically with respect to the intent to the fraud and the intent to deceive the elbe required elements of the health care fraud respectfully your honor we recognize  that there is a unique aspect to this case and because of that a start with the statute of limitations i don't believe there's any dispute that it was beyond the five years where we get to is whether the a s l a require specifically that in order for it to be triggered that there must be an offense involving fraud against the united states or an agency of the united states to that the offense was connected excuse me committed in connection with any real  personal property of the united states and three that the offense was in connection to the prosecution of war clearly the second two sets actions do not apply so we're only limited to the question of whether there was fraud against the united states or an agency of the united states it's simple to look at the indictment of this case and when we look at the indictment the grand jury returned an indictment that said very clearly that the property that was it say here was property owned by and in control of and in possession of the oklahoma healthcare authority the oklahoma healthcare authority is a state agency there's no dispute about that that was the evidence that was the testimony and that was the indictment and what we have suggested to the court below and again arguing here is that the that the s l a simply cannot be triggered when we have a situation involving a state agency the war powers resolution that was amended in two thousand and eight and was amended to protect against the type of fraud involved in iraq and afghanistan and specifically in the legislative history they address the fact that the government needs time to investigate those simply because it's the first time in history where private enterprises have been significantly involved in the actual prosecution of the war and here we have a situation of a doctor in rural oklahoma who is accused of health care fraud by the federal government based upon allegations that he violated the health care fraud statute now the was that was presented to the jury what we had was was very specific claims that sooner care is a state agency it is not a federal agency we have a provider agreements provider agreement was between senator care which is a state agency established by title sixty three but section five zero zero three of the oklahoma statues and the sooner care provider agreement was between dr de lima and sooner chair we also have the statute which says that sooner care was developed to provide medical benefits for those dependent on the state of oklahoma not in the united states government we also have section five thousand and six with title sixty three which says that the purpose of the sooner care is to provide for state purchased medical care well again we have state purchased not federal purchased there is nothing at the district court level which is just that the united states was defrauded the evidence was simply that it was the state of oklahoma who was defrauded we don't even carry a c c but part of the state's budget is actually can't i can't point to anything on that i'll be honest with you but we have to look at is what was the what was the source of the money at the time of the so called crime the source of the money was the state of oklahoma sooner care  provided an allotment every so many months that money is provided to the state of oklahoma who is not required by the way to participate in medicaid in the medicaid program the medicaid program is something that is optional by the states it is managed care because they do provide it which they did yesterday and the federal government provides some of the funding so if that money was stolen or received under false pretenses evidence as to where this money came from so the government has not proven that so let's start with that but if we get that far and move to the next part of your question then we get to the issue of who was  administering the money who was taking care of that what were their responsibilities the state of oklahoma determines the the reimbursement rates they determine what is reimbursable they determine what money is provided they have the rules and regulations with respect to how they're going to administer the the contract they develop the contract and that contract is uniquely new unique to the state of oklahoma and is uniquely associated with these parties not with the united states u s made its name and it wasn't going to pay any more money because the money was stolen or was misused or wasn't no i'm not aware that there would be any reimbursement by the federal government just state of oklahoma it's my understanding that the money is allotted to the state as a grant and that as a grant the state of oklahoma has the exclusive possession ownership and control of that money and while there may be certain regulations that they have to follow then there are certain accounting requirements that money belongs to the state of oklahoma and the evidence in this case both presented to the grand jury and found by the grand jury that the property was owned by the obama health care authority that that property was in the possession custody and control of the authority and that it was the authority that was the victim of this particular crime just so i'm sure that i'm following your argument yes a section thirteen forty one first element is a scheme or artifice to the friday program you're correct our program could be a state funded program it could be a federally funded program it could be a private company any type of public or private program could fall into the definition i think it's title eighteen section twenty four which applies to section thirteen forty seven and that is that is a very real consideration here because section thirteen forty seven does not and was the only medicaid case found anywhere in american law in the published opinions that i could find that case though it has not been specifically reversed was a two thousand and fourteen case out of the district court of texas southern district of texas and in that particular case it was decided in two thousand and fourteen and i would simply point to the court that even though not specifically reversed in kellogg brown and root first as united states which was started by the government the united states supreme court in two thousand and fifteen specifically said that the w f l a does not apply at all to civil cases so i would argue that the planned parenthood case is severely limited and has probably no meaning  who decided that he could afford to be away from his law practice for a period of about seven miles an hour i'm sorry his medical practice in twenty ten and during that time he relied upon his nursing staff to issue schedules to prescriptions which is a violation of his rules and regulations of the alcohol medical licensing board so disciplined him take away his license whatever else that doesn't amount to a federal violation necessarily you're correct your honor where it became a federal violation is when he submitted klein's and was paid by spooner care which is  provide a standard of care consistent with the rules and regulations of the medical board he failed to do that by allowing its nursing staff to issue schedule two prescriptions which is outlawed in oklahoma and by fail the hundred thousand dollars and you hold the federal government at least give me another hundred thousand dollars because your hundred dollars was stolen with which you get this extra money from the federal government i can answer that instance of the medicare situation all the civil there are other there and other examples that we could find that i believe were cited in the briefs where it was applied to commodity credit or another organization such as that but the fact of the matter is is that the medicaid system aside it paid to study five to thirty six of our brief is an important system in the federal government one in five people are on that system at some point within in delirious with the question is the federal government i understand your honor there are a few things the court might look to first of all even though the fans have actually been deposited with the state about the halma the federal government is still maintains a number of controls about how that money is spent the allow the states to work the federal programs in the way that works best for the citizens of those states i think the courts will increasingly see programs that appear to be state programs only but are in fact sort of a hybrid a federal and state connection was signing this waiver the presumption was it hadn't yet expired and he was agreeing to extend well that and in fact it had already expired at the time you sign the waiver it expired certainly after the contract that we ten to twenty levon that i think that that waiver also strikes dogs that there was a five year statute of limitations he was represented by retained counsel he would tell anyone that was a list that would listen that he was yet the government in charge whenever it can get a potential defendant to sign a piece of paper that that's good policy it is the policy the courts have recognized your honor by the supreme court decision  state that the day that the applications are changed back to pro se after having been represented at board are questioning witnesses himself on day one at the end of day once which  willing to about abide by the rules of procedure and courtroom protocol during the time that he questioned witnesses during the first day there were problems with him testifying instead of actually questioning witnesses with the  hearsay in the course of his comments and questions with him interrupting witnesses and there was beginning to be a complete failure to follow the protocol that the court laid out for the orderly administration of justice and that is also a concern that the district court has here i think if in reading the record as a whole at this defendant's behavior to rewrite it during this trial to the point that he was one present for much of the closing argument after something that's bothering me with all the health care fraud cases that i've seen have involved false billing yes or people who aren't even clients or double billing for those sorts of things here i don't think that there's evidence that any of that went on instead what the claim is is that he was allowing his physician assistant simply to sign has already signed pads and make prescriptions for people primarily pain medication prescriptions and i notice another time and continue to answer your question his physician's assistant issued during that time about one thousand four hundred ninety one prescriptions and surprise however during that same time period his billing for this is it looks like he is they are when he should be there to render proper care and i know that the defense argued that there was not any danger but we think that you know we don't have to charge for every single one of these patients but hundred three quick things with respect to the waiver first of all i would note the judge payne found that the waiver was moot so that issue was not fully addressed by the district court the second thing i would address is like you did judge for if we look at paragraph three those statements in paragraph three of the waiver specifically imply future events that it would be prohibited after the period of five years if certain things happened and if they were to expire during the period agreed upon in this document then you would waive well if we carry that forward and go from paragraph three to paragraph eight in paragraph eight it says being fully advise in these premises  i'm only a authorizing any expiration that occurred between that period of time not anything that has previously expired and also i would argue no language in there and i really not resort session limitations feel like saying you know i'll tell you the brooklyn bridge but i don't own any share of it but i'm going to do that here that's what he was told it was sold a bill of goods it was already past the sexualization before the date of this document secondly with respect to massage but in the cooper decision the court this court said while we use the word jurisdictional in our sense one of the scope of the statute we focused upon its client plain language and conducted and concluded that it operates as a bar to prosecution the court did not equate the statute with the concept of subject matter jurisdiction and we do not believe such a parallel exists so it's accio doesn't change anyway of how this court has treated it in this court has said specifically again in that case that six minutes i know this government with forty nine seconds over react continue you can finish your thought but i think additional time is out and so right what has what do you self representation if we look at mccaskill it's important that in mccaskill it says that even though the standby counsel has participated there can become a situation where the defendant can articulate reasons why that needs to change it sa until an argument has been made dr dudley a very clearly articulated why in this particular case it needed to stop and needed to stop right then and what he said was i wanted my character at issue i wanted to present character evidence he did present character evidence through himself because he later testified but his lawyer refused to put on that character evidence which may have been helpful to him his lawyer refused to question witnesses why he wanted some question so he articulated to judge pa exactly why that needed to be done in addition to that i mean very clearly said we i don't think he has the skills to do this and that's not the standard the standard was whether he was competent to make that decision or for all of the reasons cited within our brief we would ask this court to reverse the convictions and remand it with instructions to dismissed or for a new trial thank you both for your arguments the case is submitted and the court stands adjourned until eight thirty eight o'clock