actually notice duplicious and the actual sufficiency and then the introduction of what i would term obviously presidential evidence in order to distract the was really ambulatory is a separate county here i don't know why that would help your cause and frankly but i'm just wondering if that's your position i think the obvious answer to the bush is no says you can complain about it ahead of time and they could do exactly what your honor suggested but you didn't and federal rule of criminal procedure has a very strong direction that these kinds of things need to be raised ahead of time and actually used to say waiver but now it's still quite clear that this is something you're exactly right or the trial court and your client didn't do that correct so why do we have a problem it's of such a magnitude that we should address it now well i'm she knew what sloppily charge the case and sloppily prove the case or attempted to prove that i don't know what was so sloppy about i mean they have all these various exhibits exhibit twenty has all of empowerments trip tickets including those of the two people at focus john cook and cox there's a lot of discussion at the trial there's no mystery maybe at the beginning c c and c c is a little crazy but it becomes quite clear from exhibits thirty five and forty that we're talking about cook and cox and there's testimony that these are fraudulent billings that there was no testimony that these were fraudulent building well the and the judge should admit it into evidence under one thousand and six he did and then nobody mentions it except in one question i believe an agent is on the stand and the prosecutor once in final argument they only mention one i believe was forty eight not thirty five and in answer to judge woods question about exhibit or guess it you ju jury and just picking out the random thing but the government points out that every billing she said minutes in two thousand and twelve represents that she simultaneously the first and the second passenger in the vehicle replaced in operation and uses an attendant we have no idea when that was was there at the time of the billings that are in question we don't know what we do know that the defendant was directing others to follow a policy of always charging for a wheelchair and in attendance period i just at the testimony was one we have to accept than believe so and then that would be fraud but it would be for what we don't know which of those is the front nine we don't have any idea what we do with respect to the two ccs not exactly judge you by least to one of them one of them didn't have a broken link let's true but we don't know that these feelings except for this exhibit about which there was no testimony or no mention in other words what good is the testimony even with the no objection and one is for cook one is for cox and even for the broken leg that this is the charges were way in excess there were beyond any theory and that there was any evidence she had a broken one right and also the basically arguing the jury has to go through every one of these trips and say yes that one was fraudulent know that i'm so paid yes that one was fraudulent i'm not sure under this statute that there's any such requirement i would disagree  that this is the trip ticket that said forty miles to people and she didn't have one to miss corke or miss cox took the trip she didn't have an attendant and it wasn't forty miles and somebody from indiana medicare to testify we received a belated and we paid that none of that testimony was offered by the government they page thirty i think you're underestimating it's evidence based thirty eight page thirty of the government's free trial counsel concedes it states that there evidence that they were billings john without cox and coaxes authorization and using their medicaid identification number that concession was well founded exhibits thirty five and forty provide the evidence approaching billings and then says both cox and cook stated that they did not ride in a wheelchair during the relevant period and then there's a mention of one week at the end of two thousand and eight thirteen but that doesn't contradict at all the idea th something and then the government does go on to page thirty to talk about exhibit eighteen which again is quite specifically says she needed a wheelchair for one week at the end of two thousand and thirteen right i think right and she never needed an attendant so looking at that summary they're evidence you're running into rebuttal time but i'll let you go quickly touch on that the ted there were bruises and the freezing weather in the terrible condition of the equipment and so on there were twelve client witnesses t testified notwithstanding that he the undercover ten of them were asked questions about were there bounced checks were the vans in good shape were people late one woman had to was stranded oblivious there's no reason for those questions and as much as the government by try to justify them they're there for only one region and that's to distract the jury from the lack of proof as to this as to the fall they were relevant they were very prejudicial and it was wrong and unless this court points miss cox who's the individual at the broken leg at the end of two thousand and thirteen testifies at page fifty seven in the first day of trial that she never had an attendant not even during that period wetland and i believe that's how you pronounce her name in the third day of trial pages forty three to fifty five goes through various exhibits with her various trip tickets and as relevant to these counts it goes through mrs cox's june tenth ticket on page forty seven of the third day of trial confirms that the ticket says it was cancelled and this ph stuart thirteen excuse me of our short appendix confirms it's cancelled as when it was built confirms it was built in august of two thousand and thirteen the government also went through other specific trip tickets we have witnesses in the second day of trial pages two hundred to two hundred three to government goes through agent weston with agent west and as it relates to miss cox her june fifth two thousand and thirteen ticket her june tenth two thousand and thirteen ticket purchase june sixth excuse me june nineteenth two thousand and thirteen ticket and gets testimony about those talks about how the ticket for was the the heart of the government's case that this was this wasn't just some there are plenty individual cases as sweeping and yet the evidence of the sweeping nature was the exhibits thirty five and forty aggravated identity theft or the medicare fraud or medicaid fraud excuse me that's a fair point as it as relates to the medicaid as it relates in medicaid fraud i think the undercover agents testimonies actually to me that was particularly compelling in this case they since we're required to look for evidence supporting the jury's verdict but it's a little bit troubling that it wasn't really explained to the jury your honor this i'm not going to stand up here and argue this is a textbook case of going through all of these exhibit so it could have been done better certainly on the cult record but what's also happening even in closing would have been a good time to spend a little more time should your honor but what's also happening simultaneously is they are exhibits very similar to thirty five and forty  as you say in an ideal world it would have been explained better to the jury and given us greater comfort that that indeed the jury relied on those in the way that has now suggested by them or has been challenged for sure and i understand your honour's point your i did ask about where it's referenced in the closing and i will say on page one eighteen of the fourth day of trial that's the closing and the government says you have the records including exhibit forty for cassandra cooke and you keep chico cox excuse me it admittedly doesn't reference exhibit thirty five by number as to miss cox but i think what's also important in the corollary is look at the fences closing as it relates  aggravated identity theft counts and it's three sentences they don't argue that one particular billing was different than another and far be it for me to put myself in the position of a defense attorney in this case but i think the evidence that someone empowerment is submitting fraudulent billings is just overwhelming and you're not going to get a whole lot of traction if you argue any particular billing and i don't think there was a legitimate defenses to any particular billing and so well and let me ask you a little bit didn't make any contributions to charity for a decade would you think you could put that in the case in chief no your honor because that would explain where the money was going that empowerment was receiving impairments receiving one point four million dollars  i know that i know that but what will reverse that and what if the evidence was that she gave to charity that would be a legitimate use i think defense counsel would have been able to bring that and well i don't know could the government  documents documentary evidence and as you point out some of the testimony it's a little concerning to me when the government kind of gild the lily indication chief with evidence that arguably says this is inherently a bad person apart from the conduct charge and i understand the court's concern that it might be objectionable but the fact is it wasn't objected to you know i so that's you're certainly on solid ground there because this  empowerment missing pick ups defense's theory of the case they can see it in their opening and closing that impairment perceived money and have in its admitted fraudulent bills so their theory of the case was two fold it was one that miss shorter need and she tried to fill it and it just spiraled out of control that she wasn't a good businessman now i'm not advocating that we admitted the evidence to help the defense because we certainly didn't but i think there are two ways you can spin something like impairment didn't pick up but it would have cost a lot better in rebuttal in response to a specific testimony or committee well your honor i think your theory of the case is pretty clear in opening arguments and that's the way this case was tried i understand the court's pointed out that but as it relates to specific opening what counsel says in this in this is pages seventeen and eighteen of the closing the a usa is going to put on evidence that mr porter failed to keep good records and we don't dispute that the records are now what they should have been and we're not going to dispute the fact that there were some rules that she didn't follow what this case is really about is not whether want a shorter fall the rules or whether want a shorter kept the records that she was supposed to keep but whether she will fully and intentionally in fraudulent knowingly and purposely build for things that she knew she wasn't intitled to and then he goes on to say the real question that you're going to have to answer is was this purposeful was this intentional was this deliberate was this project that's the only issue in this case her intent to defraud i certainly understand the court's points about some of these questions i would say that you could also as defense counsel spend them to support that theory of she's in over her head look at all these edit examples of her company not picking up lines but i do appreciate the court's concerns and ultimately because we are here on plane air review i don't think any of these questions rose to the level plainly erroneous where the judge should have stepped in and certainly zealots to harmful prejudice i don't think there's a legitimate argument that unless this court has any further the point is not how the money was spent how the money was received and that evidence was clearly prejudicial could not have been you would otherwise and i differ with the prosecutor in this respect i think the district court sh something even the the second point is the government says you're either a judge kindly said referred to the massive fraud the prosecutor retorts that someone had to power met was billing why there were wheelchairs somebody said if if they had to be wheeled into the cart or wheeled up to the the van they thought that's a wheelchair patient that's the testimony at the trial other than that there was no theory of defense in the sense of a theory of defense that she was being altruism she was a business person so the prosecutor so the defense counsel said that you know she was trying to fill a need she was and she was a book i think all right thank you very much mr nash and you were appointed i believe we appreciate your service to the court into your client thank you and thanks as well to the missing u s attorney who will take the case under devi