support i'd like to begin a discussion today with pointing out two uncontroversial propositions and one very controversial question which is what brings us main issue in this case is how do we determine which bills are fraudulent and which are and what the amount of the fraud is in cases like this where we're dealing tens of thousands if not hundreds of thousands of claims overall by a real company that's delivering real services and how should that determination whatever it is impact the final sentence that's company didn't exist tens of thousands had actually to get back to figures several hundred thousand claims were submitted by the fed and such and at trial they proved that the company simply wasn't there this was all paper that was shuffled around its minute the company didn't exist and it was very easy for the this court in that case to say that at sentencing even though the government only freedon a small subset of claims were fraudulent at trial it was very easy to say that all of  patients with real doctors and submitted hundreds of thousands of claims at trial the government however submitted only evidence regarding eight patients regarding what eight patients so eight of the tens of thousands of patients the doctor at home treated in the course of its existence were actually presented to the jury trial and the jury found the defendant guilty right those were exemplary of what was going on here but there was also evidence at trial that just take the home visits billing issue that some sixty percent of home visits were completely unnecessary and and that they were phony and fraudulent so you know the fact that there were just eight specific instances that were put into evidence doesn't take away from the global evidence that in the three categories of phony billing here there was widespread fraud because these services were completely unnecessary and that the employees were instructed by your client to fabricate these these billings i alter the coding to make it seem as though this was really legitimate this was a legitimate need for a home visit that this was a legitimate need for skilled nursing and care plan oversight i think the this case isn't about the conviction your honor what it is about is the sense and i think that scaling as a matter of general practice is not necessarily controversial what is controversial is the evidence that the government submitted in this case and how much  that is i understand the district court's findings here and that's what we're here reviewing as to the last amount the evidence the trial demonstrated that the vast majority of these three categories of services entailed funny billings these services were not in fact required and your client was instructing the employees just to say that they were when they weren't and that's precisely the findings that we disagree with on a few here are the taking just one of the categories for instance just the the actual home visits we're talking about the upcoming it is undisputed that by the government that these visits were medically necessary there are appropriate what's at issue is worthy o what sensing requires even though it's a preponderance of the evidence so as to be reliable evidence that shows that that is accurate and the evidence the trial was all over the place it was not accurate to say as the government said at sentencing every single one of these nine or eight is fraudulent and the defendant must prove that they're not that's not accurate are you saying there was no fraud or that she wasn't complicit of it that's a slightly separate argument you're on and that's mostly as to the  home health care issue the jury found out about and that's not something that we can dispute on appeal just pointed questions the extent and the question is what she is going to be held liable for and this isn't a case where we're only talking about a few hundred thousand dollars or something that is what the district court found was fifteen point six million dollars worth of fraud that the defendant the defendant alone right now is responsible for that defendant is what the defendant is responsible that is what and the district court's factual findings were based on evidence a trial that wasn't accurate even by the government's own witness the question we have here and the reason for this appeal is is that pro others to term beyond a reasonable doubt at sensing however the government piled on an additional fifteen point four million dollars in things that they said that the defendant was responsible for and should be held accountable for and it drove the sentencing determination and that matters a lot because even though the thirty five fifty three factors do apply and that can ultimately result in a different sentence it starts it out in a very different position to use a sports analogy we're talking about the difference between starting in fifty and starting in the one and because the district court examiner did and made this basically take took the government's methodology for relation to the home business it basically subtracted the value of the that entry for aids from the rest of the the bills it didn't give that for the whole health care it agency or  bills which added up to something like i think one point three million dollars and the government doesn't really engage with this this is a clear application of the requires the fair market value of services rendered to be deducted from loss amount and there's no question in this case that services were actually rendered their home visits by the by doctor home the home health care agencies it's undisputed that they actually rendered services to these patients patients during visits and did nothing during visits except for listening to the patient's hearts and lungs now is that they that that e mail is there is there such an e mail i think i would know you know which one you're talking about you're on i think that was also the subject of objection the problem is lois the objection i believe that was here saying if i recall correctly i think we lost that objection that what i believe is hearsay i was there's a double hearsay should we dealt with the trial level i don't understand send e mail what's the hearsay if i if i recall correctly it was someone else reporting what hashmi had said and i'd have to look at the record to be sure but either way even assuming that that's probably miss on something the district court can take into account short visits don't mean no radicals short visits sometimes didn't speak to the patien during the visits and did nothing during the visits except listening to the heart and lungs that sounds like fed that sounds fake right well depends on me it depends on how the medicare fraud guidelines are and one of the in the latest second depending on what the patient's illness is just listening to his heart and lungs is not proper treatment i i your heart and your lungs are fine so get out and that actually goes to my my point your honor is that we don't know all of these claims that the government asserts were fraudulent we don't know what those patients had we don't know what their medical conditions were and this was discussed pretty extensively a trial and sentencing you have to know what the issue with the patient was to know whether or not the medical treatment was provided was actually justified by the bill and that's the problem actually no the claim here is that a large majority of these patients didn't qualify for home visits at all so it really doesn't matter what services rendered once don't get an offset for the value of the services that were rendered if the reason why this is fraudulent is that these none of these services were available at all not just that they were they were over delivered or under delivered it that question doesn't matter what and that's that's actually the the reason i bring up sudden your honor that's the case that the defendant or the government cited for that proposition when you actually look at sudden that's not what it says this court decided they weren't entitled to that because the company didn't exist and that's not it's not a question of in sudden they didn't deliver the produce the proof the care at all i'm making a different point here and i think you're missing it evading it one or the other the point is not whether or not services were rendered apparently services were rendered but your client doesn't get an offset for the value of those services because none of these the sixty percent or so of the home visit it's more billable at all because these aren't home bound patients no i certainly understand your point i'm sorry if i don't qualify for any services then it doesn't matter what the value of the services that were rendered was the client doesn't get the offset the reason for the fraud is that they weren't home bound nobody should have been sent in the first place i think i think two responses to that your honor one there this is the factual dispute that we were arguing about at sentencing is what the percentage was that were factual disputes usually are resolved and trial right and that was not the question of sentencing is whether or not there's reliable evidence that was presented at trial and we're talking about sixty percent forty percent that's that's my point there is that the determination of whether what percentage of patients were homebound or not was all over the place and the issue at sensing is is there enough reliable evidence to know that that isn't accurate numbers  my name is steven lee the last calculation here was based first a specific claims that were the basis of the counsel indictment and the basis for the counsel conviction second testimony e mails showing overall patterns involving large categories of loss and overall reasonable estimation of loss based on preponderance of the evidence in terms of the first category the home visits first of all this is not an undisputed point out the government position was that many  particular person who was charge was herself a metaphor fashionable and someone who was very involved in the company more so so that i think the record shows that any of the other anyone else was higher up than her in the company she do this quietly questionable things you know your i believe that offended introduced some evidence for thirty and the owners in her defense case i think the record does not show that those people had the same level of expertise and medical experience that she did i think we find that a lot of these cases especially again the key issue for charging and convicting particular people is they're still individual state of mind not medically necessary and thus in a top of that main that is evident showed the many of the business were being done not because the patients had any medical concern or problem whatsoever but because they were being by the defense company and being told things like the doctor he can come see you tomorrow what time to come see you things being driven by the company policy and not by any patient need in terms of  defend it was very aware that she was getting you know company were getting patients from home health agencies which wanted these doctors to certify these patients back home health services by those companies and she took steps to make sure the patients w certified whether or not the patients actually all live for the services the last i'm out here of about nine point five million dollars is actually quite conservative given that it's focusing on just two of the many doctors who certified hundreds of patien for oversight services which were not actually done for riders testified at trial that they did not had done the services that were being billed and the documentation for the services was based on false documentation were not even in this country based on all this the district courts was able to look at all the evidence and was able to make a reasonable calculation of loss based on all the evidence that was presented over the course of the trial and the addition defendant has has appropriated or i believe it that yes that it was acquired for so she actually actually got fifteen million six hundred thousand dollars no your honor her company received about six million dollars of the loss the other nine point five million dollars of lost that went to the home health agency that were effectively the defense partners because after she is released from prison if it's clear that there's no chance of ever having money of that sort would the judge with the judge be able to read to change the amount i'm not sure about that your honor there may come a point that obviously there are certain aspects in terms of what the government may do later on in terms of seeking to enforce or not of course some of those   she didn't so far as on the record shows put anything in her own pocket so that is a situation where she is on the hook for fifteen point nine million i i honestly don't know where that's going to come from  the nature of an unjust enrichment kind of a theory you know she's liable for it whether she was in rich to that amounts are not i certainly understand it your honor and what it does matter to you though is my point in in our third argument about whether or not the sense was subsequently unreasonable and what matters here is she was sentenced not only seventeen months incarceration but she's also been hit with this restoration order which i think we probably can all create is unlikely to ever be paid and i think that so far as the substance of reasonableness that's one of the biggest issues that was not dealt with by the trial court that and should've been heavily consider