peace and regardless of one's political views he'll be remembered as a virtuous man who respected the rule of law and with that we'll begin our calendar with united states  begin whenever you're ready thank you rather than play the court counsel my name is greg sylvie and i represent sherry dillon so i'd like to begin at the end and refer to the government's final brief in this case where the government finally makes or finally acknowledges an argument i've been making throughout my briefing which is about the supervision of sherry delon as a dental hygienist in the government calls my argument absurd so i know i must be doing something right but basically there is a fundamental misunderstanding by the government in the court in this case about what it means to be supervised as a dental hygienist i think you are going about general supervision is well taken but i don't see in you every where you show evidence that she was generally supervised so well and actually that's an excellent point the government didn't actually that this is the government's burden the government never showed that she was not generally supervised by the gov so we have the indictment just says that she's not direct there's no direct nor indirect supervision it says there was no dentists in the office and therefore she wasn't directly or indirectly supervised they springboard that up into that the comes a scheme that the entire the entire business is a scam or is it is a scam but so the government actually produces their witness that explains what general supervision is there is absolutely no proof that she that she had a any claim that would have been direct or indirect supervision they produce the coding chart where the only thing that's direct or indirect actually it was indirect was the application of nitric oxide there's no allegation that she did that but what we know is so general supervision is just basically about a dentist authorizing a treatment and what's important here they have quite a bit of evidence that she didn't have through zation of the treatment  me that in your briefing where you draw the distinction and i don't mean to imply that the government has conceded their argument that a higher level of supervision was required but even accepting your argument that general supervision was sufficient it doesn't seem to me that that was the case here in all so go back a minute so everyone is in in my what would be the yellow brief i have the idaho statute of what super general supervision means and in the trial there was a letter that was written to sherry dillon that was admitted of stance of belief for some sensibility for notice from the dental commission the dental board and it said that and it's part of the sentencing material as well but it says that a dental hygienist basically must have written authority there needs to be a chart notes from a dentist saying what you can do that was amended and at the time of the case there didn't need to be written notes it didn't need to be in writing so so basically from the statute authority the general supervision just needs authority for treatment it is as simple as a dentist saying this patient needs to have his or her teeth cleaned that is authority it's not about a master servant relationship it's not who's supervising who it is a dentist saying stand i think your point that point  behaved so ok so i'm trying to get to the point the question you're asking so a dentist does not have to be in the office while these things are occurring so frikkie dot dr frikkie we know that he was there in two thousand and ten at least up until july so dr frikkie is there also and this was testimony from the dental board that hi janice can perform a treatment up to twelve months after when the patient was seen by the dentist but frikkie is at least there until july and somehow this becomes so somehow all of two thousand and ten becomes broad you want her hygiene so freaky is there for part of that so i don't know how they get to it's all fraudulent frikkie if she can actually perform that these treatments for a year after that he that that has seen patients but that's still all becomes fraudulent somehow and then contract dentists are working for years and i mean it's as simple of a matter of that contract dentist when she's assisting in drilling and filling as they say is say this patient needs to have his or her teeth cleaned that that would suffice as general supervision so the government never will be after the dentist leaves the state it doesn't have to be i'm just asking as a practical matter act as a practical matter do you really have i mean i understand the rationale of saying you have to do it tomorrow even next week or even next month but if the genesis leaves the stay completely she's basically employment law master servant law but there's employment law supervision and then there is statutory dental wall what it means that i read some common sense and a lot of it i don't i'm not saying that it's not really an employment law situation it's a practical reality we also have doesn't have the rationale though for the supervision requirement that if there is a problem there will be a authorized the but what the government jury or i mean scuse me the procedure but one of the reasons why the government should not be just pulling out new theories at sentencing our contact contract and us were actually on the stand at trial and some of the time they were in the office and did you argue before the district court that their supervision was adequate it was never brought up in the district court when they were on trial or during th sentencing did you make this argument i didn't represent the defendant it wasn't made counsel this shouldn't be that hard i'm just trying to yes i believe i know what was talked about put it that way and i know that the court rejected it talked about and worked well i know the prosecutor was saying it was not good enough that's what i recall defense attorney didn't really make a lot of sentencing arguments put it that way so he was not specifically responding to government arguments like that y may be wrong about this but i had the impression that the primary earn him and that was being made was really want to bow out notice rather than about the content of who's billings should and should not be included in the total and the discussion that you're having with judge kristen was not bad that's part of the notice argument though it's how we take the indictment that says this and all the sudden we have all the billings from the contract on us and all the billings from sherry but i really read that the forgive me for interrupting i really read the notice argument very differently i read the notice argument and i'm concerned that the district court understood your notice argument to be that at the time she entered her plea she she thought that the superseding indictment was sought and the and the one probably the government's case was such that they never contemplated this much larger forfeiture and restitution number correct correct and i was just trying to explain the the the difference in view of supervision is how it goes from one twenty six to right and i think that's well briefed and i appreciate the argument i'm just trying to get at what this is a much more specific argument than what i understood to be discussed at sentencing and i'm just inviting you to tell me if i've missed it and really that that was packaged in there in a way where the a court had fair notice and an opportunity to rule on this and i was just trying to make a very specific argument about how a i did just believe the court never never got so to speak though the supervision argument throughout this that you just look at the indictment said all the all the dental hygiene billings are in there somehow which i don't believe is the case and all the contract billing dentist billings are in there somehow which i do not believe the case and that is you're asking about the notice question in terms of the amount of forfeiture of course because so after the guilty plea is entered the court basically says something to the effect she's now subject to forfeit your proceedings and the government is going to pursue the amount you've just reciting and perhaps more and so she's on notice of at least that amount given that the sequence of advance what's your best argument then for the fact if you didn't have noticed that the claimed forfeiture amount of that time could not in fact be increased because it had been reduced i mean just pure logic and common sense if i say if i start with this number i reduce it to this then went does and perhaps more would go up to basically do what the penny under the first number if i if i tell you that if i tell you that i want this from you and no i want a lower number from you but maybe more you would not possibly be thinking that the number i want from you is for heinz more than the original thing that's not how our brains work that it's not logic or common sense that so yeah but what tells you you have to have that precise number when you have noticed that there's if you know you're going to get to a form you don't have to have a precise number but by reducing reducing the number if the prop as the government's finding out in their brief they knew from the beginning that this forfeiture number was going to be many multiple times what they what the original number was why in the world me please the court serena case hargrove on behalf of the united states your honors the district court found that the government had proved that the entire business was a fraud from twenty ten to twenty thirteen so that was a finding made by the district court it's noted in the district court's decision in page eight of the excerpts of record and that finding is crucial to both rebutting the defense and then also to the government's argument about restitution the court also found and it noted in musings during the sentencing hearing that it could acknowledge that patients did not get complain plans that a dental hygienist posing as a dentist had created but they testified they did their independent examinations before they for me this is the toughest part of your argument they stepped in they said they did in appendix emanations ison who testified and her testimony as summarized in the pre sentence report in paragraphs twenty seven and thirty four i regret that we didn't actually include the testimony in our exerts but she explained that she met with sherry for over five years she had a number of fillings done by ms dillon and previously she had met with doctor for he in two thousand and seven and he had done some treatment for her but she never saw a doctor frikkie again after that now after treating her for five years mystical and a dental hygienist determined that dentures were appropriate for miss morson and so miss doing created a treatment plan that involved taking all the steps necessary to get dentures wrong my understanding is those is that three contract dentists testified that they did their own independent examinations no i have that wrong no your honor that is correct but they were not real value waiting they were not questioning the entire treatment plan did he say that did baird say that no your honor he didn't and he wasn't asked the specific questions about miss morson but i think if when you consider it is a matter of logic if you have say a senior partner working on a case and they say here's our overall plan or logic doesn't help me very much i'm not a dentist i really don't you know that's not what we do for a living and so it's tough for us to second guess this part of it if we got testimony and we have the standard we have which is really approximate cost standard and independent dentist comes in and says i wasn't just blindly executing a treatment plan this is my summary summation of the evidence i wasn't just executing the treatment plan i perform and wanted to pen an exam that's why i have a problem with this portion of the restitution order yes the dentist also acknowledged though that they believed dr frick he was the one who had the long term face to face patient relationship with these patients and the doctor  morrison's case they believed the doctor for he had seen this patient for five years and had after consulting with her determined the dentures were appropriate for her now there may have been nothing that suggested they were grossly inappropriate and i think you testified he did his own exam so yes i think he would have seen something that was terribly inappropriate but when you have a colleague who is the primary dentist in the practice where you think you have a colleague telling you t extract someone's teeth because they're appropriate for dentures you know that is a very different then if dr baird were mary morris and stent test and he had been evaluating her you're very free under the n p r a which of course is very expansive but it's not limitless your brief reads i think as though the governments are going but for standard you know the insurance agent said they would not have paid this had they known as opposed to a the government's position is is that we proved the we proved that had medicaid known and had the insurance companies and employers known that  that was still and was operating the way that she was they would have paid absolutely nothing because that entire business was a fraud and that it wasn't just a matter of contract although the contracts are very important but it was a matter of public health because she was violating a great number of things that the dental board that state law required and so for that reason that's where the hunter case comes in and hunter explained that and it cited a six circuit case favorably kaminski explaining that when when the insurer or the piece doesn't get what they paid for which is compliant high quality services loss and so the district court's findings that the patients did not get compliant care that the insurance never would have paid and that the entire business was a fraud those findings lead inevitably to a greater amount of loss than the district court was awarding now hunter acknowledged i think some discretion in there and in that case the district court held  that this nurse who had fraudulent misrepresented her licensing she did not have to be reimbursed for things that did not require a nurse's license the court was well within its discretion the hundred court held not to pay her back even though there was no need for a license for those particular tasks but hundred in the course of doing that explained that when there are public health requirements at issue that is very different and it's very important not to tread upon those that's the government's concern here that the defendant had contact dentists who were operating under the absolute mistaken impression that a face to face dentist with a long term relationship with his patients was recommending care and they were helping to execute that care and that there was absolutely no supervision over mistal and she ran the entire business essentially she supervised the contract dentists both as a business person and then also by pretending to be a doctor for it so if i understand your argument in part it is that the independent evaluation was independent but in a happy to go back and reread what the three dentist testified to but that's my problem right there and that's the part where it's tough for me because i'm not a dentist right right when they say they perform their independent exams i don't i didn't see them saying had i known i would have done my exam differently is that in there no your honor not from those dentist however however there are calendars there are extensive calendars and the fact of the matter is those dentist believe dr frick he was there monday through thursday and that he was the one with it was his name that was going on and he was the the head dentist in this office this was his practice they thought and so monday through thursday he is meeting with those patients they are his patients and they are they are absolutely dentists and they are acting to help dr for he sometimes every other friday sometimes every third friday some for some of them for a period of time it was every friday but they believed and was still and continually told them that dr frikkie was still active and he was the one with that relationship i also didn't see that the those dentist ever said that they thought they were supervising ms dylan that's criminally or otherwise that's correct your honor yes and that too goes along with the finding that the entire business was a fraud in that the dental board doesn't even allow dental hygienists to own these practices a dentist is supposed to own the practice so no she was never supervised adequately and there is good there is helpful testimony from kristen cali who was our dental hygienist expert in the excerpts of record at three zero seven about what's required for both general and direct supervision thank you blith the perfect example of that these games were not in the indictment or part of the trial is no but he was asked these questions which are now vital at sentencing and restitution nobody asked the contract honest did you ever tell did to clean up patients teeth which would be general supervision nobody asked them what sort of examination did you give to up to a client i know the court is interested in this in the restitution issue but it  also vital to the what what scheme is charged and it's vital to the title to the notice and the voluntariness of the guilty plea these things just all came up after the fact the government has been insisting that they have been in part of the case since the inception in the indictment and they simply have not been a fair reading of the indictment does not include claims for the contract dentist or claims for the dental hygiene that was that was done under general general supervision which could have been dr frikkie being there in two thousand and ten pursuant to is written orders after he was