or against the government in a criminal case the factual findings from a legal eagle authorized investigation in this circuit has been established since one thousand nine hundred eighty two before the rules of evidence were adopted the government investigative reports and findings are evidence less than their testimony the s e c findings were based on all of the documentary evidence that the government introduced at this trial all of the witness testimony including did not believe and consequently sued them for securities fraud and then prepare the the factual memos that led to the prosecution of laugh without looking at our point is exactly the triage point is that in this trial we should have been well to introduce presumptively reliable findings and it's very important to both of the government never start to carry its burden to show that the findings were or were unreliable  forward or not and the only thing that they left out said mr entry were the opinions of lawyers the privileged information and the district court in the high production of the action of those because they were covered by the blood work product of attorney client privilege and the case law scattered as it is among the district court seems to back that up but the factual filings and judge if you look at the raffle in that bill gates civil complaint if you look at the raffle in applegate indictment you'll see that he absolutely replicate everything  headings all that to report the findings into evidence and the defendant said go and this court said bad choice occurred and i think that case actually makes trade shows helps answer your question as well because this court said we would charging them with securities fraud it was only after raffle and applegate were charged and us and handed up glock and baker that the government sought indictment against buck and they could we should have been allowed to tell the jury we should have been allowed to tell the jury you can take this stack of evidence over here and all the e mails and and whatnot that was introduced in this trial and you can move it to the end of the table in the jury room because the only for some considerable period of time at least since two thousand and five with disco care and if he took the battlefield promotion to c f o did he then join this conspiracy or as he testified and as the f c c specifically found  is for example the brazos case that we cited to be appropriate balancing assume the maximum probative weight and then look at the prejudicial value for a proper fourth rebalancing the court said i am not letting this kind of evidence in and the supreme court told us in the sprint case that when it's an entire class of evidence it's being excluded it's not forth rebalancing and discord and moss was very careful to charge district courts to be to be very wary of using four o three to school presumptively reliable evidence in witnesses that they were interviewed by the thumb and walk ins and when we argued that that opened the door the district court said no we were allowed the grand total of questioning john raffle about his fine that he paid the f c c because they listened he paid a fine but the but the investigation did not come in so what this that there'd been an investigation by late some there'd been an investigation by s c c and they heard nothing about the results of that of that investigation except that glock and baker had been indicted we submit they would have drawn the exact opposite conclusion and just all the other we were going to do was the same thing that the court said should have been done must introduce the docket itself authenticating it doesn't require any witnesses and government investigators can't testify to their opinions we know that from the government's brief so it would have been introducing documentary evidence and since the f c c was all over this trial anyway i don't think it would  your honor is a dentist word for a moment baker i'm going to principally address the public trial claim but i would like to begin by saying explaining why the health care claim the objection in the admission of the health fraud evidence is so important this was not a case where we're arguing insufficiency of the evidence on appeal under jackson versus virginia there was certainly evidence that would pass the jackson test but all of that evidence really comes from applegate and raffled the government conceded that at the time during the proceedings against ravel and just before the time they pled that it did not have sufficient evidence to indict either baker or gluck if you extract their testimony from the record the evidence is legally insufficient to convict either mr baker mr clarke and that because their credibility was so subject to challenge five years after the fact for the first time when they're indicted they for the first time accused mr baker mr gluck of being aware of the scheme the middle east they concocted so what the government really needed here and they made it very clear even at their sentencing that the reason that they had testified that they were hoping right up to the day of sentencing that they would be given probation in exchange for their testimony so what the government really needed was a witness who credibility was not blemish and that witness was norman sanders dr norman sanders and we can say three things about his testimony one it had nothing to do with  channel stuffing or accounting fraud two he was called not as a percipient witness to events but to give his opinions and three those opinions had an immense motional wow up because what he talked about was saying that  disco care was the surgery milledge in surance scan it was a criminal enterprise it was outrageous it was bad medicine now jurors might have a hard time working their way through the accounting principles and channel stuffing cases but they sure knew what what the meat words bad medicine outrageous criminal enterprise meant and that that testimony obviously it was for for be material the government promised that it would deliver announce for reform material give notice of it thirty days before the trial they gave no notice of it in the three four zero four notices that they did file of health care in their trial brief they never mentioned norman sanders and the whole effect of this the district court at the day that he unequivocal east at this f reports couldn't mint on the same day said he would even consider and ask the government to explain the health care fraud evidence so there was no notice of it until dr sanders got on the stand the defense was sandbagged in that respect and the testimony if it had been explicated before trial we submit we would have been clear that this was inadmissible material under four hundred four b because it had to do with health care fraud there was not and let me be clear that as a result of that in closing and this is the real where the real impact in a case where there isn't a hint of healthcare fraud in the indictment there's no mention of  coding or anything healing with surgical procedures the prosecutor gets up and says hey this was a criminal enterprise arthur care was involved along with disco care and health care fraud   and overruled let me turn to a miracle of the court which is that yesterday we filed a twenty a j letter referencing the first circuits decision in the new grown saw street case that came down after our opening brief was filed however we should have found it earlier we have notice obvious to the government because we did discover it only in the last thirty six hours but it is the case the only case since presently that not only is it somewhat relevant highly relevant it is virtually the same  degree to distinguish i mean here it seems like maybe i'm wrong about this that it was accidental or not i don't guess it was accidental here i mean it was purposeful i mean the intention excluded the family from the board  security officer and it was admitted not at the order of the court not at the order of the deputy marshal who was responsible for order in the court room but a court security officer believing that this was the practice of the court excluded the family iran or the court security officer did the same thing he went out and he said to these family members know what the court room will be filled with people and you can come in you know when there is space for you but obviously the practice oregon well your honor the count here the district court judge in that case made a specific finding that there was no evidence that the practice was put into effect in that particular case and what the first circuit said is regardless of that the court security officer believing in that practice but closed the courtroom so so it it's extraordinarily an analogous in the sense that it's a court security officer and what the first circuit said in finding and that was a plain error case which is this case is not in the sense that the attorneys in that case knew about the exclusion but they believe that it was appropriate they were aware of the  of the first circuit precedent and they deliberately did not raise an objection and wasn't raised until the appeal was a public generally excluded in this case as well i mean the public everybody but the more use excluded in this case there were the other members of the public the general public respect there were affidavits from four lawyers for witnesses including the government's principal witness that they were in the court room but there was no evidence that a member of the public was in the court room and the record is clear that the family members may please the court john pelletier from the department of justice on behalf of the united states i'll start first with the public trial issue in the first circuit case that was just brought up i think the court hit upon the important distinctions in that there was a unique circumstances in the political courts where there is a longstanding practice of excluding the public from war dear and the court record in that case showed or at least suggested strongly suggested that the district court either knew or was aware of that practice and didn't do anything to stop it and in the light of prior first say so i mean the opinion does not say that it doesn't say that the court knew about it but it doesn't mean it doesn't indicate that it was intentional or doesn't indicate that it was an intentional practice of the court to exclude the public from whatever i think the evidence that the that the court of appeals cataloged established that it was a longstanding practice to intentionally exclude the public from war dear and that the what is your what is your response to your i mean clearly the family was excluded from what are right yes but it was a good place should have been and there court here and here's why because the district court made every effort to accommodate the public in this case it added folding chairs eighteen folding chairs reserved a row in the back of the courtroom for members of the public then before the video was brought in the court on the record surveyed the court room and and saw observed that there were he observed six individuals one of whom was a marshal and said are there room for these five other individuals in the courtroom and the court security officer said yes but one or two are going to have to come up into the well the court room and the court said great and he said to the lawyers you know i'm sorry but there is just very tight room in these courthouses and then when the veneer came in the courtroom was totally full that's a factual finding by the district court and it's not suggested that is clearly erroneous that there was no additional capacity for anyone else and true the family members were not there but there were at least five additional members of the public were there four of whom were lawyers for witnesses they weren't  for the parties they had no right or authority to be in that courtroom except as members of the public they weren't representing anyone who was testifying they weren't representing the parties they were members of the public the court was absolutely full and there was no room for any additional attendants there was there were i think that the practice in the in the poor rico resulted from the fact that they didn't want people being close to each other similar to presently where they didn't want members of family members or and so on kind of close to  there was on the record is the record established that the district or the trial court could have put individuals in the jury box which would open a whole half of the court room that's not the record in this case where there were individual injury but there were individuals on folding chairs there was of a row of the public open individuals in the back yes turn to the s e c memos the i think it's helpful to take a look at the actual documents and if you look at the first memo it's a three page memo that gives a high level over under the overview of the underlying facts and it makes no mention of baker and it makes only one mention of gluck saying that in one instance in two thousand and seven raffling applegate withheld information from him regarding revenue being reversed and that was in one instance at the only that's the only opinion regarding gluck in the in either of these memos the second memo reference to me that the only reference yes the only reference to glock and there are no references to baker in either of the memos the second memo summarizes the misdeeds of john raffle and david applegate they don't purport to be opinions or findings with regard everybody but these gentlemen are not allowed to offer that p s e c by at least by omission clearly didn't charge them with anything it's well established and we cite the case in the eighth circuit that collects the cases that charging decisions are generally excludable as lacking probative value and confusing and misleading the jury couldn't a reasonable juror have inferred by the fact that these memos said nothing about baker and gluck that they didn't intend that they didn't find anything about baker it's the dog that didn't bark it's a highly attenuated inference and is outweighed by the other factors which are that this is not a helpful opinion it's a very little that you know that is not what the district court did he said they were irrelevant and immaterial he did not conduct any kind of balance in our view the most reasonable common sense at the district court conduct any kind  is the general tenor of what happened here when he talked to us he said immaterial and that was hyperbole but it best understood as weighing as far as evaluating the probative value and they do have a very little probative value they were preliminary findings of one f c c staff attorney provided as a as a courtesy to the department of justice and they were without benefit of of testimony from raffle and applegate and they're very limited in terms of their findings with respect to either baker or glock and courts regularly well let me just i just again there are findings and there are no findings with  regard to the top two officers of the company and yet the jury was well aware that a lengthy assisi investigation had been conducted yes and it would have complete it would it's more confusing than edifying to know that and  they did have understand that i mean if i'm really i mean you can argue that but aren't they entitled to argue the contrary look the f c c has been over this for years and there's nothing in here about us but they were able to argue that and they did that we needed that the testimony of applegate and raffle were the linchpin of this case they went they hammered it over and over again in closing they had a huge opportunity to cross examine these witnesses and all this was in front of the jury the jury was aware of all of these issues but that and the jury had all of the information and more willing to take the position see findings are never admissible because they can confuse the jury it would have been prejudicial in the sense that it would comply only confused in misled the jury it's not unfairly prejudicial in the sense that it would have asked the jury to decide the matter on some improper basis and i think it's helpful to understand that courts regularly exclude opinion evidence of this type when it's not in documents opinion evidence of the sort that says that gives an opinion about findings that they dish that the jury is perfectly capable that's what i was asking potential to confuse the jury because then they'd think the experts and already found them guilty but you would seek to admit that would you not if he if they found that he no we would not seek to admit that and that would be and it wouldn't be x it would be excludable if you look at for knew about channel stuffing or whatever their findings in the form of an opinion your honor and so they have to be evaluated and vinings they say their findings they are find and we disagree that they are findings a public agency findings for purposes of eight o three a with we think there are three independent reasons for affirming on this ground for all three we think was with well within the court's discretion to exclude under four o three and we don't think we hear say under eight zero three eight because it is not a  brings charges your honor and it doesn't include that process doesn't include informal memo sent to main justice it includes a process you can go look at the enforcement manual online how that was good enough the main justice adopted those findings or whoever filed the complaint against raffle in applegate used those findings we didn't doubt those findings your honor we made up your own we conducted our own investigation as the district court found there was no there wasn't coordination he looked at the documents document but whatever well it's a government it's well established that just because something's a written on paper by it within a government agency by government i mean to use that in substitute for an eight zero three eight analysis it was a very perfunctory ruling a writing or a recording then the opposing party may offer introduce the other portions of the rest of that recording or writing in order to provide context for the understanding or prevent misunderstanding of the of the portion admitted by the opponent we did not offer any portion of these memos or of the late the memo how did you open the door if you we did not open the door your honor this in your cases that i've cited in the brief simple testimony about that row that refers to some sort of writing does not trigger the common law of completeness under will that americans riding the jury heard it there i believe that what came out was that raffles and applegate lied to late them and we knew that they were going to cross examine apple again lee and raffle about prior inconsistent statements made so that sort of lying to investigators and i believe it was only brought up prior to in order to take the sting out and to bring that up to front it and say did you lie to late and they said yes we did lie they knowledged so that was why that was brought up we didn't refer to any findings we didn't rely on late them the late and report there was certainly no portion of the late to report was introduced into evidence and so the door was not opened up into introducing the whole late them report into evidence in this case regarding the floor of th notion of health care fraud these that evidence was very very highly relevant to the wire fraud charges in this case the indictment charge that that this was relevant to the wire fraud charges in this case and i will you know and here is how difficult i was a very important component of the arthro care business disco care eventually became its largest customer by revenue and disco care was the was the largest component of the spine unit in by revenue and arthur care and the story developed that the spine unit was growing very very quickly and the author care present this to the investment community as very important because they wanted to visit and they wanted to visit in auto care's a growth company and that would increase the stock price and all of that growth in the or most of the growth in the spin resulted from disco care but they didn't want to disclose the details of how disco care was increasing that revenue and i would prefer that the court to exhibit one ninety eight which really kind of encapsulates this where the  david applegate sends an email to michael clarke and they're talking about this stock opening tomorrow and how are they going to react to this forty percent forty six percent increase in revenue in the spine and then michael clarke says yeah we're all excited there's going to i'm expecting a big pop in the stock and then he says by the way i don't need to become versed in detail and just compare and we need to build a story about your new found success that can stand up to real scrutiny without revealing what is really going on i will be coming to see you to brainstorm this in a couple of weeks and then apple get response yes i think it is extremely important that you make or are well versed in the details of disco care and position it consistently with the investment community at the appropriate time while i completely agree with mike that's mike baker that we should keep this under our hat as long as possible we need to be prepared to respond if someone finds out about it while sniffing around now this did come to fruition eventually in december two thousand as all of these details about disco care know this is extremely  very this could mean the disco care did a lot with plaintiff's lawyers it could mean that it had to do with incision through something else you know it could have to do with channel stuffing  you know i mean not all of which are criminal well we're not saying that the that the conduct at this cooker was criminal we're saying that they didn't want to disclose it and in fact when they didn't want to disclose the fact that their sales force together with disco care was putting together plaintiff's lawyers together with doctors and then they were advising dr doctors to make incisions and use a different code for open surgery in order to increase the amount of money that they obtain for their products the spine was almost six thousand dollars instead of thirteen hundred i understand what you're saying but and how much of that could you harsh on the baker and a lot of knowledge and that's where norman sanders comes in now we didn't introduce norman sanders to say that there was that disco care was fraudulent or health care fraud quite the contrary we presented evidence from norman sanders to show that he told baker gluck that he had real problems with this personal injury model that was his testimony i thought it was unethical and for and perhaps fraudulent and i told i was allowed in i would raise a loud voice about this with baker and with luck they knew my views on that so they had noticed that there were feelings by their chief medical officer about this and problems with it and then when the new york post article came out in december two thousand and seven suggesting that that this was occurring they had an influx of calls from analysts and investors saying what's going on here what's going on here so they had to have a call to calls in january investor calls specifically to address because it was so important because investors want to know i'll refer you to the testimony of alexander nicolaus who's an investor an analyst who said yeah this was important to me i wanted to know that they were doing this personal injury thing that they were up coding and he specifically asked are you up coding he was off these calls and baker said no we were not up coding and so they flatly lied they lied on the calls they said no that they're and they lied to analysts and investors relation people in e mails and phone calls outside those conference calls o owners we will hear from mr three quick points your honor the closing argument by the government the government has just told you that they didn't intend or suggest that this case was about health care fraud the closing argument with the government was that the defendants had chosen to get into business with isidore a convicted felon who ran a criminal enterprise if you have a channel stuffing case with a company that sells motorcycles it might be a dry case you may be able to prove it it helps you a lot if you can say oh but they sold melhem of motorcycles to the hells angels and it helps even more if you can say actually they were part of a criminal enterprise with the hell's angels that isn't what they were charged with  closing argument emphasize that that they were involved with the business and was focused on cutting patients none of that was was relevant or needed to prove the channel stuffing charges pretty clever strategy because ing you just seem to be set to poison the well you don't have to prove beyond a reasonable doubt and your honor this is a case where no one has ever from disco care arthur ever faced an accusation that there was health care fraud there the government has never had to put that to the test but i mean even so far as the indictment here is concerned that was based on channel stuff right there is no mention of health care fraud in the indictment there  no mention of surgery none of that is in the indictment and none of it was provided as for all for the material in any notice provided by the government so you have the sand aspect of that as well  correct just close with one remark which is that the first circuit said we iterate the ultimate responsibility of avoiding even the appearance that our nation's courtrooms are closed  lies with the judge we commend the sound judgment of the first district court the responsibility in the first instance of ensuring both openness and order and above all preserving the defendant's constitutional right to a public trial they say that th district court failed to do that we have a case in which four years after princely the district courts court security officer is telling family members they can implement this why dear that may not have been by any directive by the district court but it was the district court's responsibility to ensure that those family members were present during the thank you very much