there's no question that the jury in this trial was properly instructed about the way they could consider what i've characterized as the uncharged conduct the excessive billing necessary to tie doctoral heming to the scheme that was returned in the indictment by the grand jury he fell apart and mr lang fell apart particularly with respect i believe that mr lang's testimony and had it heavy on the park was so critical of the government's decision to change their theory during the middle of trial is because as the case was indicted and as a grand jury returned the indictment hundred four b purposes and at trial i objected repeatedly and early that this appeared to be a situation where the government was abandoning their theory  of fraud that was alleged in the indictment and that they were pursuing false claims and excessive billing billing theory it really came to head when in the closing argument the prosecutor for the government in his opening closing told the jury that they could pretend as if george lange had never testified now if the jury is going to pretend that george lying never testified and how on earth can the government then turn around and say counts one through six which are the subsequent counts alleging that the billings submitted were in furtherance of the describe scheme returned by the grand jury is the basis for a conviction and what happened is the prosecutor told the jury that they could consider the primary way that doctorow hemming was involved in a general health care scheme was by looking at the billings that he submitted or that were submitted to medicare for the tests that he provided which were established to be unnecessary or unreasonable that was one hundred fifty thousand dollars and while the case law almost exclusively talks about how the jury instructions that are presented to the jury allow for a conviction based upon an charge or unindicted conduct in violation of the amendment what we have here is a situation where i would submit that the jury received proper instruction but the in the writing of the of the fraudulent prescriptions of the formula a certificate of necessity and that when his testimony from your point of view fell apart the government was unable to establish the the larger from doing scheme that's charge an indictment but that's that's a seem to ignore a lot of other evidence that the government presented its case lang's testimony was not the only testimony that implicated him in the larger s of lying was very much involved in the kickback scheme for example but that was only one small part of a much larger scheme was it not which was also the subject of testimony from other government witnesses the other government witnesses testified to the and i think george lane was only really percipient witnesses to this scheme the balance of the testimony involved expert testimony on badges of fraud how the medicare program worked and why the misrepresentations in the certificate certificates of medical necessity that were submitted with the bills by the d m east stores to medicare that's what the testimony was about and when you look that the jury could conclude that doctoral hemming knew about and this may be relates to my sensing argument as well that dr hemming knew about this portion of the particular and discreet scheme returned by the grand jury to the testimony of george lang the government saw this they knew this is what happened and that's why mid mid course and put a little bit what was your defense at trial by defense at trial b became clear that the office of having once it didn't know was not annoying parts participant in the indicted alleged scheme and so he said there was no he had no knowledge and so seem to support the doctor knew what was going on with respect to this fraudulent scheme does now i would suggest that it doesn't and the way that i would suggest that it doesn't is by the way the government argued this case in their closing argument they argued you can forget about george lang if you forget about george lang there is no testimony connecting doctoral handing to the v stores there's no testimony connecting them and more importantly the government said the primary way the primary way that you can find a doctor having was part of a general health care scheme was the fact that he he would see the hundred fifty thousand dollars in billings for excessive tests in your opening brief you concede that the evidence in question was properly admitted by the district court i do this so how if i'm just trying to know how that's not fatal to your constructive amendment argument based on united states versus bank maggette i think it's got how is that not fatal to it because  in that case it says evidence not referenced in the indictment may be admitted for impeachment or other legitimate purposes without affecting any charges in the indictment so if you're conceding that the evidence was promptly admitted i just i don't  understand where where we go with respect to your argument that the jury was properly instructed but the force of the government and you say the project was proper instructed you concede and you concede that the evidence was properly admitted i'm not contesting it on appeal that's correct but the government's theory and maybe it's maybe this is better characterized as a fiddle variances that affected the substantial right of notice as to what you're defending dr hemming and i would place in a offered with a limited purpose of whether or not dr having participated but it could not be used according to the court's instructions for conviction well because i think he he has to found this you've indicated was lack was lack of knowledge  and so the evidence of all this unnecessary testing so sort of goes to the theory that he somehow isn't innocent in all of this and didn't his defense he acknowledges that he filled out these prescriptions and blank but then after that he becomes an innocent not knowing how they're going to be used and if he's involved in these other instances of performing unnecessary tests that certainly raises a question about the legitimacy of his defense of the had no idea what was going on because that the indicted scheme that was our position he was not indicted for performing and billing medicare for these unnecessary tests and i see that my my time is up but if i may just answer the question like this the government abandoned their theory and they argued a theory that was not returned by the grand jury to government abandoned that theory as to how much actual us medicare suffered from the kickback scheme and relied at trial for the conviction on one hundred fifty thousand dollars and for that reason with respect to the sentencing argument  prefer the court a lot of hearts and on behalf of the united states i ask you if you were the trial lawyer for the government i was not those of the trial lawyers have since left the office although i hope that i am prepared to answer any questions you have about the evidence both constructive amendment and fatal variance are very rarely found in the cases and if we look at the cases in which it has been found and compare it to the facts here is apparent that there was neither a constructive amendment nor a fatal variance i'd like to start maybe with stain of variance since that seems to be a how defense counsel answers the question about what might have happened here and in cases where that has been found such as adamson and to the head jimmy basically what you see is the government charge defend with robbing banks a on december thirty first and they don't prove that instead they prove something else of the defendant rob banks be on january first so we may have the same crime but we're talking about entirely separate concepts that is clearly not what happened here the conduct that was charged in the indictment was fraudulent billing to medicare four enter nutrition for patients who were not fed and that was clear from the way the indictment laid out the scheme and the charge there were six counts of billing for d m v durable medical equipment and then there was a listing of each claim and that it was for enter only tradition and syringes now this key had several components that were necessary to make it work unless it were an overall scheme it seems as though there could have been more than one conspiracy that was going on here perhaps two of which were the one with which dr oh hemy who was charge was not the one relating to the unnecessary medical testing and i guess the other one and the two rather a large frauds that were toronto when it wasn't justified because the patients were into it well the indictment charge that this scheme had several components all of which were necessary to make it work and the defendant it was not critical of the defendant actually know about every part in every detail of how the scheme worked but the scheme had several parts which were all charge me indictment first you have to have patients come into the clinic you have to have medicare patients come in and those who are recruited then you have to have doctors who examine the patients and write the prescriptions in those prescriptions were false and the indictment also allege that there was testing died and crime to this man although what was charged here was this scheme there weren't separate accounts of a false well i guess i'm just trying to figure out what's your position on one of the disputed evidence here was charged well it was it was in extruded we intertwined with the scheme and the reason for that is and it was partly related to why the defendant tried to defend on the ground that he didn't have knowledge and an element of that was he argued i didn't make any money i wasn't i didn't get money from the kickback i didn't get profit so i didn't have intent to defraud but in these what william e fraud schemes that isn't where the doctor makes their money their doctor makes their money from the office visits and the test and there was overwhelming evidence at trial in the patient files that the defendant not only signed hundreds of these prescriptions for insurers six hundred calories was syringe and certificates of medical necessity but there were also lots of exam notes that the defendant signed off on and santos said we bought those exam notes to and those exam notes were in evidence showing that you know this entire clinic was permeated by fraud and that's how the defendant knew that this was a fraudulent scheme why did the why did the government create this issue by not actually charging for the unnecessary medical testing writing prescriptions for wheelchairs the are not used to mean that those are instances i would think of fraudulent conduct leads to unjustified billing why would the government not actually charge those as part of the scheme well any indictments did charge that as part of the scheme the patients who came to the clinics had physical exams and were administered tests but the six and a vigil counts had to do with the reimbursement to the d m v correct right that's correct and that's why i have to deal with unnecessary medical testing in the patient visits and other things which are saying so was part of the scheme well if it was relevant as you know as the jury was instructed it was relevant to show shouldn't that have been allowed part of the indictment or the government wasn't trying to try those other things the charge here was enteral nutrition this was for for be evidence it was evidence of intent knowledge motive absence of mistake to rebut the claim that i had no idea what was going on and i was duped by the office manager you know and it's also important to point out that there was a connection between the defendant and the d m d companies because la testified and the defendant admitted in his testimony that he was the one who introduced laying to do may who was the proprietor of i v medical services and he knew that she do may  and he wanted them to do business together and the only reason to introduce these two parties to do business together was if there were going to be perceptions for d m v that were generated that were going to then be filled by what the expert was going to testify about regarding these tests being unnecessary and again i think we have to go back to the cases where this court has found a fatal variance or a constructive amendment of the indictment those are either cases when we look at the constructive amendment where we don't have an assurance as this court said in ward's through the jury instructions that the defendant was actually convicted based on what was charged as opposed to some other find that here we have the assurance that was missing in ward we have the assurance that was missing in surround because the jury was never told counsel i think but i think what opposing counsel is saying is yes the jury instructions are a problem for him but the way the case played out at trial and the way the case ended up being argued the government really did have to had the defendant was the only medicare provider at this clinic and he had to apply for a number specifically for this clinic we had three hundred seventy five prescriptions and two hundred sixty five certificates of medical necessity that the defendant had signed for this enteral nutrition but he says he didn't he didn't know what was going to be done with it he knew nothing about the deal with the d m is that he was innocent of all of that i understand but there was overall well the evidence that that was not the case in part because he admitted to the medicare fraud investigator that these were his patients and he had prescribe it and when he was interviewed by the f b i he lied he was asked if he knew to do may and he said well he's for miliard you need to ask elaine this was a very close family friend who babysat the defendant's children it was clear that he lied about that because he introduced to do may and laying so that the clinic could  counsel said and i haven't mentioned him because this case is about george lying and if you would like you can pretend like george lange never testified because the evidence of defense guilt without george banks has money is overwhelming where was the just  do may i who had a d m each company to lang so that they could do business together so the point of this is it was really the defendant who was stuck without a leg to stand on because he couldn't he really didn't have a good argument that the defendant didn't know what he was signing so instead he had to look at the one part of the case which immediately the government didn't have strong evidence about which is did he know that lang was getting paid for the prescriptions and there was some evidence to that effect in part because why else would he introduced to do may and in part because laying said i did give some of that money to the defended but that was not a critical part of the scheme it's the overwhelming evidence establishes the defendant knew these were false he knew that medicare only pays for two fed patients and he knew that these were going to d m the company and he knew that in part because he was the one who was getting money from medicare and then writing checks to laying and writing checks to dr terry normally or sometimes that those incidents are referred to in the indictment but he doesn't have to plead all of the evidence no but when you rely on them to the extent that it sounds like you did they often aren't i'm think that's why you know i'm curious i mean from the other panel members here are are curious as to why that wasn't included either as charged conduct or in the indictment especially when the defendants say in no notice because i don't see any specific language an indictment charging  exactly why it was charged in exactly the way that it was but what i can say as to notice is that the defendant isn't claiming that he didn't have notice he had notice there was a motion in limine each to admit this that's problematic but the indictment is not problematic here because the charge was the false feeling of the fraudulent claims to medicare these other components of the scheme were were you know that the multiply the charge contact you would not get anywhere close to two point five million as a defense level adjustment so what was the basis for that what the basis was there was evidence  trial based on all of the prescriptions signed and the certificates of medical necessity and the exam notes or to santos that based on all of that condo there was over five billion five million dollars bills and almost three million dollars paid to the d n a companies and based on all hemmings prescriptions alone there was more than two and a half million billed and almost two million dollars since the government went five minutes over thank you with respect to the notice looking at the adamson case from the circuit of one of the the reason that the court in adams and found that there was a very interesting that affected the defendant substantial rights is that the defendant did not have notice of what the theory was going to be at trial granted that there was a complication with the you had noticed i had noticed that there was in the four hundred four b hearing which is similar to what happened in adams and i had miletus that the government's going to try to offer the excessive testing in the billing from that for the purpose of  knowledge and intent but not as a court instructed to establish guilt and that was this specific limiting instruction that the district court gave and that's what for me instructions are always about not end up in the end the district court gave that instruction at least three times here limited instruction there's no question about arguing that but i'm saying that i think as this panel is picked up on the government needed george laying to tie doctoral hamming to counsel it almost sounds like you're making a sufficiency the evidence argument i i go back to your original question of my colleague i went when the court so clearly told the jury with respect to the servants of unnecessary medical testing that is not the charge before them the court made abundantly clear what the charge was so i don't know how you can argue the might of that instruction and we indulge a presumption the jurors do what they're supposed to do what they're told to do the think they could have despite the instructions they could have found him guilty on the basis of this one charge convict i just don't know how you get around that very clear instruction because in appreciate that that's been my problem i understand that is the real issue in this case but when you look at the government's closing argument after having in the eliminate proceedings said we're not they did a fine i put in my defined this to me kickback scheme as what the indictment return that scheme is abandoned in closing argument and the government argues for guilt based upon the unnecessary testing and they argued to this jury in in the face of the of the court's instructions that dr heymann was guilty of general health care fraud based upon unrelated excessive testing and billings nothing to do with enron the tradition  with respect to the sentencing government can't have it both ways they can't say that under one b one point three of the guidelines that it's reasonably foreseeable and part of the express or implied contract between hemming and laying that he be held