good morning may please the court date we remain for the united states i'd like to reserve three minutes for rebuttal as this court's decision in the percentage case counsels a cardiologist assessment of a blockage is a factual statement that can be proven false and at trial here the government presented ample evidence that the blockage findings recorded by dr paulus were in fact false and that dr posted this is part of a fraudulent effort to bill medicare medicaid and other insurance companies for his costly stent procedures the jury reasonably credited the government's proof this court should now reinstate the jury's verdict to my first point page three eighty four the decision where the court is discussing the false statements to achieve that discussion makes clear that a blockage finding does it can constitute a false statement it can be proven right or wrong and in that case the government presented testimony from qualified medical doctors with respect to each of the grahams in that case and this court held that the jury could reasonably credit that it miscible expert testimony in the government's view the same conclusion holds here for each patient file discussed at trial  recorded a severe levels to nose of seventy eighty eighty five we called a qualified cardiologist as one of our experts review who said he reviewed the angiogram and did not see a clinical significant blockage it was forty percent or lower except with respect to the one patient patient d c which we addressed in our briefs the jury viewed the n g a rahm's they were admitted into evidence the jury under this court's decision in person was free to side with the government's expert submissive testimony the government the jury could credit the district court erred by essentially taking this question of the fact from a jury and saying or holding that cardiac and the interpretation of an an is simply a subjective enterprise that was erroneous we did in fact prevent the present ample evidence that the blockage findings were false the jury could credit it to the second basis of the district court's opinion the district criticized the government's case for failing to show evidence of fraudulent intent in particular the district court expressed concern that the government had not shown evidence of force of a cation of  falsification of records up coding some of the features that were the issue and proceed in some of the other cases that we cited to in our brief now the government admits that would have been terrific smoking gun evidence of intent but as this court has said intent can be proven by circumstantial evidence the district even gave an instruction to the jury state of mind may be proven indirectly from surrounding circumstances that's instruction number fifteen what do we present on intent we presented a stark disparity in dr paul says blockage assessments across a large number of cases and the fourth circuit said in the mclean place that is direct evidence of fraud we had more patient files at issue in that case  in this case than at mclean one of those our doctors dr morrison the anthem consulting cardiologist he received random samples from the insurance company and testified that he found over half problematic that  inflated that it was inflated he didn't see it and it could not be justified by in for observer variability we had five doctors who worked with policy or interacted with him who provided anecdotal testimony that throughout their practice they observed inflated stenosis findings that they did not see upon observing the same angiogram combine that with it's circumstantial but again the peer comparison data and as we put forward in mclean the al brint billing rates dr paul us build one point one billion dollars to medicare between two thousand and six and two thousand and thirteen placing him as the number one biller of medicaid during those years his prestigious cedar rates were enormously high he was outpacing the entire cardiology departments of other hospitals and had a two point five million dollars salary again most whole degrees higher than the average cardiologist all occurring as the jury heard at a time when the hospital was pushing to increase its cardiology practice to push more turning to the motion for new trial we think this issue is in fact before the court as we explained in our briefs if the government's proof was sufficient at the close of our case then the testimony that dr post put on character witnesses another expert in his testimony himself that's where that's x that witness versus witness that doesn't come into play on the sufficiency question that cannot disrupt the sufficien government's proof that we presented during our half of the case and so if this court agrees with the government that our evidence was sufficient at the close of our case all remaining sufficiency issues are moot but the new trial motion goes t that is certainly within the court's province to do we don't think that it's appropriate given that upon reviewing the post from motions judge bunning ruled on every claim advanced by the defense post trial and he granted  during the oral argument if we view the district court's order as resolving everything but if this court disagrees it is perfectly appropriate to remain and we can have further argument on motion for new trial unless there are any additional questions or about the government's position that i would like to reserve the remainder of time for rebuttal thank good morning your honour's robert bennett on behalf of dr paulus the district court found that the government's case was quote house of cards that fell apart when subjected to legal review for sufficiency of evidence and as you know judge bunning is not one to make rulings like that if doctors make and that philosophy had seems to be squarely rejected by a person i don't see how you win on that well i'll tell you how i think we lend themselves to objective determinations but they're all over the place and the evidence in this case shows shows just that you want to say that as a matter of law that you can't have honor you've got to remember that we showed in this case that the engineer grants that were presented by the government and relied on by the government were not the same films that were seen in the in the lab and that we presented an expert from the cincinnati children's hospital who said they were seriously deteriorated and they were significantly different from what dr paula saw in the lap and we think that violates a very basic rule whether you want to go off on a  or or or a federal rule of evidence basis the fact is the overwhelming evidence in this case was that the if you grams relied on by the government were not or different from saw in the lab and in fact the government stipulated to that they stipulated that the engineer grams which were reviewed by the jury were not those  paulus in the calf the same and you grams are just displayed with different resolution that's not correct your honor will hold different image with no it's not a whole different but the number of shading is different another witness said close enough another expert when your witness said they're different you can't use those in the government witness and no they're close enough well i would respectfully submit in the criminal case it is there a corresponding government witnesses said they were close enough for the purposes they had a doctor supply who it's not clear if he even looked at the energy grams in this case and i don't think there is a corresponding witness of the qualification as as dr strauss he examined all of the equipment he said he found the differences to be significant significant he said this is not just very good it's a criminal case which by the way if you read the whole transcript it appears they really prosecuted a civil case bu were powerful evidence of useless adlon procedures i could go on and on those factors are not present in in our case the subjective opinion the readings of these angiograms result in facts and the facts can be shown to be false the facts can be facts shown to be true you're right that person has other elements in it that probably go to the weight of the evidence of that particular case but i don't see why those differences go to the to the fundamental premises of personified well i think the difference is personified first of all there was no challenge as far as i recall to the quality of the energy of graham's i seriously doubt this court would have ruled the itself cannot be objectively i really think it's the latter that especially where as in his case there was a challenge  interpretations but why why are the in your grams of different than x rays i mean it looks like you've got concrete picture evidence here that people have to analyze and look at and measure up well i think in either  judge i think if you establish that there is a great deal of variability among experts as to what that x ratios or as to what as to what skews me as to what an engineer graham shows then i think that totally undercuts the idea that there is some objective thing about really really is no dispute that x rays are admissible evidence and that is objective evidence  different opinions i mean well x rays are are not quite as sophisticated and i don't know what's so sophisticated here that they're measuring the narrow nose of the of the arteries i'm just an arms and where is here they're not the same and are significantly different it's all the more true if i know your honor i'd like to raise one other point  government poll real bait and switch i judge judge bunning if i may use that term he argues that the kentucky medical board  settlement should be admitted because it so it was part of the operative facts i think they used the term chronology and i that representation judge planning what it they got it in the government used it is that unfair prejudicial sword let me give you an example in their opening statement the government said mr marshall would tell you about the medical boards investigation he would tell you that the defendant entered into an agreed order to retire in lieu of having his license revoked by the state board final question this was to mr bus or asked you about different letters from the let me ask you this have you ever had your license suspended by the kentucky m board and on an honor of ten or fifteen or twenty examples where they made the implication that the medical board had made a finding against him now what they are talking about is somewhat for a period of time is a provision in there that says if he violates that practices he acknowledges in advance that his he's a danger to the community doctor the doctor the government expert acknowledged that it is very difficult to establish stenosis it involves opinion not objective fact involves opinion dr regards to his own book which we brought to the attention of the court said that dr mahler taro said that found no blockages and one found a hundred percent blockage and one found a ninety percent blockage i respectfully submit that judges judge different you don't have that before you in fact if i remember correctly one if you raise the question somewhere in there of competency of counsel they didn't attack it they didn't raise it we did it and i think if you look at it at what's in that racket you'll see that there is just no fair way to say there is some objective thing there doctors are all over the one of them they were all and still stress they were not stable patients which the guidelines applied to they were unstable patients which the guidelines don't apply to and again this is a criminal case it's not a civil case the guidelines have no business in this case  briefly responding to two questions from the court judge griffin on x rays we actually had dr ghost of testifying documentary to a four fifty one eighty eight the interpretation of an injury graham stands alone just like a radiologist reads an x ray that was the comparison to judgment key on the evidence regarding the patient angiograms the government had seven cardiologists that cardiologist testify that the grahams of our type and your arms that they saw were of diagnostic quality meaning that they could accurately assess a blockage on them a number of those doctors had worked previously at king's daughters and would presumably be familiar intimately familiar with that system our expert also testified that the archiving changes referenced by opposing counsel would not affect ninety nine percent of angiograms in the remaining one percent it would be very different very small in a seventy percent blockage would not drop to a fifty percent blockage that was the testimony and not the district or credit pretrial the jury was free to credit it during the trial two points in response to mr bennett the medical board settlement there was no objection to the that introduction at trial documentary one ninety five page idea four two six five no objection to its mission there been emotional in a about that there was not there was a pretrial motion to strike the in reference to the indictment reference to the settlement in the indictment which the district court denied there was no motion in women and and even  under this court's long established practice the defense would still have to contemporaneously object at trial to avoid plain error review the government has explained why we think it's admissible under four zero eight these were stipulated statements by dr policy and in any event the district court in its order said post trial there was no substantial prejudice to dr paulus two main points to summing up the government's view is the same  challenge on page thirty one of his brief to this court the use of the government's use of india grams to prove falsity he argued that the government cannot prove falsity because india graham interpretation resulted in systematic errors that was the quote systematic errors on blockages that's almost identical to the claim that dr polis raises now the government cannot provide proof of falsity because into graham's are just subjective we think resolves that completely on the last point  mr bennett says that graham's all over the map that was not the government's evidence at trial that was also not the testimony from one of dr policies cardiologists dr preston if it's less than forty percent we can all agree on that and if it's more than seventy percent we can all agree on that it is in the middle where it gets a bit different to thirty one page id seventy three zero six that that forty seven boundary doubt was the way that the government structured its proof in this case the jury had the jury had every reasonable grounds to side with our view our experts and convict dr policy of the charge of fences for these reasons i would ask that the court reverse thank you counsel