am counsel for dr nick when and i'm not embarrassed to say it's taking me twenty five years to get here and i appreciate being here and the be a lawyer when each of you were practicing law on this side of the podium as compared to that side of the podium and if we engage in that mental exercise  i think you can appreciate the feeling of doom that i felt sitting next to dr no when in the trial court and having the trial judge read th eighty seven count indictment to the jurors to the prospective jurors and the looks on the prospective jurors faces when they were realizing that they were dealing with a case that involve specifically at whether there was any bar to listing or eighty plus kim i think there's a difference between prosecuting a doctor for medicare fraud which arise lethal manner in which the doctor uses the c p t codes and transmits them to medicare than from a bank fraud case or a security fraud case and what doesn't come across in the briefs is that there are doctors why is that because there are doctors right now that are afraid to bill medicare and code in a manner in which the if you didn't perform the services then arguably it is a fraudulent billing but i think there's substantial confusion as made out by the record in this case by the testimony of dr chazen but and by the other podiatrists from las vegas as to whether the code was even a misrepresentation now obviously that was something for the trier of fact to resolve it's a trier affected resolve but the fact of the matter is is that confusion is all over the medical surgery because the codes don't necessarily spell out in a simplistic a v c order what the surgery is and what the surgery isn't and i believe the doctors in the community community are confuse and they're confused because what they're doing doesn't necessarily fit into the code it's like a round peg would fit into a round hole so the speed and that's the confusion and i think that's one of the reasons why you see it differently it's just the code that's how it is transmitted to the to the intermediate carriers that administer the medicare claims through the law well the doctor simply has to fill out a form which has various codes one code is a diagnosis code what's wrong with charged in every district that i'm aware of well let me interrupt you for just a second though essentially what you're saying though is that every time that the judge i'm sorry the doctor wri code he or she may potentially be committing medicare fraud if he or she has used the wrong code right action theory right absolutely ok now if you lump all of these events into one  not minimize your ability to defend against each one of these instances because then you'd be looking at the totality of the counts rather than each of the individual offenses so for example in the case of the surgery the doctor you come in and say this is why i use this code and thereby avoid liability on that count i don't think so judge because i think the practical effect on the jurors is that he must have done something wrong and that when you have when you charge a case  billing as opposed to per patient the prospect of taining not guilty as in we did obtain some not guilty but not guilty is on every count is is minimal and what it really does hundred instances of cutting checks well i think there's a policy to pile on the charges in that kind of a case to deter a person that's cutting checks but in this situation the policy is different because what we're doing is we're deterring doctors who aren't even being investigated from feeling for services that they believe they should be compensated for when the codes don't necessarily match up with the services that they have in or out your prescribe i mean just in your argument but isn't that the province of the jury you make your argument to the jury that this was simply a case of eighty six instances of putting in the wrong code it was an error of of judgment or whatever but it certainly wasn't for argument and it is not why juries charged with so many counts and i believe it's easier to defend the case if charged in accordance with a statute which requires a scheme and the fraud and to separate the counts per patient rather than per billing because otherwise the statute is meaningless i don't know why you can't make that same argument to the jury spending the fact that you have an eighty six count in i i don't believe that it would have been appropriate to argue to the jury that the case should have been charged per patient as opposed to per count i'm talking about your ability to make the point to the jurors that these were all putting in the wrong code that's all it was it was oversight or whatever it was i think that's a point that was made to the jury sir but i believe that the impact on the jury of so many talents is that the jury is naturally going to believe that he must have doesn't something wrong and i think that's why with no one parent reasoned that appears on the record we had fifteen not guilty s and i believe approximately sixty seven guilty but the coals were generally in all counts the same and if the explanation as to the not guilty was accepted by the jury there doesn't appear to be any reason why the same explanation was an accepted to the other sixty seven panels can i ask the question you referenced the securities fraud allegation of accounting misrepresentation and a quarterly statement or what have you again you'd have the same issue you have an interpretation of p or g s or whatever it may  which is one element and then the second element as applied to this case would be billing with the intent to obtain money for services that weren't rendered and i believe that otherwise the statute the scheme part of the statute is rendered meaningless and i think one of the reasons why the statute is drafted that way is to be very careful not to convict doctors that are acting in good  can use the wrong code even though they know that the services they provided does not fit into the definition of the code because they may have provided more services  required by one code but less services than required then the next higher level of code so they fall in between and this is a situation that i think all of the record  very exciting as a run of the mill billing fraud case but it's a situation that i think has implications to doctors that are practicing medicine in podiatry every day and worrying about being testimony to be admitted during the trial to counteract the impact on the jury of the eighty seven counts because that feeling of doom wasn't necessarily limited to the fact that i knew an eighty seven county indictment was being read t being called to testify as an expert yesterday on the truth and honesty of the defendant on a character trait to matters number one the character that the defendant possessed the character trait pathology would be the lack of honesty and since that was absent since dr bourne found no pathology doctor boerum in accordance with the rule which allows proof of character by opinion would have rendered the expert opinion that dr knew when while not suffering from any cycle pathology has the character trait of honesty in his opinion and he's licensed to do so or was licensed to do so because unfortunately dr born passed away this last thanksgiving but was licensed to do so under the laws of the state of california and i think that's very very important if he's testifying within the four corners of his license acting in accordance with the instructions he had received from his former boss which is where dr bourne's testimony on the gullibility issue would have been would have been admissible much like the testimony dr bourne was going to testify that my client acted in good faith and that in fact he had a character trait for honesty and they kept this character trait for gullibility making him a person that was going to follow the lead of his former boss that's a that's relevant to show that he did act in good faith tends to prove that he did act in good faith as opposed to what the government proved attempted to prove a trial which that he did not act in a false claim whether it's sixteen patients or sixteen hundred patients and whether those patients are seen once or a hundred times each time that claim is submitted it constitutes a false claim i think judges can you touched on the block berger test counsel can simply not demonstrate how this indictment violated block program each count required proof of one additional fact that the other counts did not each count pertain to a different data service for one of sixteen patien to me the multiplicity argument is very straightforward and it seems that under the block protest when comparing it to the bank fraud wire fraud mail fraud statutes and looking at out  this case presents an interesting issue under four of five and the united states would be first to concede that it is a close call with their expert character evidence is admissible the court can base it five hundred be happy to argue to the court why expert character evidence is not admissible and should not be admissible but even if defense counsel has succeeded in arguing to the court that expert character testimony is admissible under rule four or five he has to leave the additional hurdle of seven and two like the district court which based its on dr born defense counsel address the issue of seven o two in fact he takes the position that will seven o two is irrelevant i think that's a direct quote from the brief as if somehow dr boerma loses his character as an expert simply because he's testifying on character simply not a proper subject for expert testimony the finley case this court specifically noted i believe is in a footnote that matters pertaining to witnesses honesty or truthfulness is not a proper subject for expert testimony  as i think you hit on the critical point in questioning which is the actual test and i would submit that this is the key point the actual tests that were administered to the defendant  interview when these tests were being administered and from this he concluded the defendant was truthful i think that evidence just so basically what happened is that the doctor found that there was no authority but that does not necessarily indicate that he was thank you judge i think that the arguments being made by my colleague from the united states attorney's office are wonderful arguments they should have been made to the jury after dr boerum testified the offer of proof that is in the government in the case this was not some other type of criminal case where intent to defraud isn't an element where i would be the first one to agree that the issue of honest is something that should be left to the jury a character trait for honesty those two different things in fact aren't they sort of diametrically opposed to one another no judge because the someone does not have the pathology for dishonesty then someone by definition is an honest person there's no in there is no neutral zone and dr burrill was licensed by the state of california to give the very opinion that was proffered nor offer proof and so i believe that under full five he was entitled to give that opinion because the rule does not limit proof of character to lead the opinion and i believe that under seven o two he was also entitle to testify so the now the jury didn't want to accept it the jury didn't want to accept it but to exclude it i believe was error again as to the gullibility aspect dr bourne would have testified to was testing for that aspect dr  his prior boss the medicare liaison would have been substantiated by expert testimony i believe the testimony was clearly relevant and should have been admitted  and went through two thousand and two i