before we proceed any further it is my great pleasure honor and duty to let you know that this is the first day that our new colleague judge scudder is sitting with us so he will be here with us for the last two cases and many many more so welcome right so our fifth case for this morning is united states against certainly some facts in particular that are quite troublesome and facts from which it seems to me a rational jury could infer that he knew that these people did not have that he was using this intense pulsed light system and defrauding the insurance companies hi using it for conditions the wasn't called for things such as his abrupt change in practice after the blue cross agent comes things such as his failure ever to follow up on these people having the code medical assistance just do it and copy the same alleged  time and the absence in the medical records of any indication that these lesions are are the the very difficult to perceive ones to to say certainly is a matter of theory there could be such a thing but he draw a distinction between making the argument you would make for the jury which perhaps might have seen things in the life that you did and taking the perspective that we now have to take which is as g all facts that we can consistent with the jury's verdict the jury has made the credibility determinations and we don't have any authority to to disagree with it in that sense judge there is that that the government has to prove beyond a reasonable doubt either with direct or circumstantial evidence every element of those two statutes i think right but now we're under the jackson against virginia standard are there any facts in this record that would support the jury's verdict judge there is there are facts that does not kill any intent for any proof of intent there is absolutely  nothing in reality judge but the whole chase the whole cheese is in regards to the difference of opinions there is a want to physician indicating that yes there were lesions there is and other physicians saying that there could have been lesions even though you could not see the lesions that could be hid so when i said he didn't just scribe these people that way not in the medical records and again i think you're twisting the standard of review around in a way that's not accurate judge they have to prove the government has to prove beyond a reasonable doubt the standard of review that is right that the jury found that they did and so now to the extent there is ambiguous evidence in the record we have to assume that the jury was persuaded the government's way but not based on suspicion and the speculation there is a case of the u s forces jones two thousand and thirteen that is says that the courts decided that our criminal justice system doesn't tolerate the conviction  even if you look at the witnesses that the government has provided every single witness who took the stand none of those individuals had indicated that the i p l that was used the method that dr memore used was wrong in reality is fifty three percent of the time it was affected i'll let me i have just have to take exception to what you're saying he had some patients who did have unequivocally actinic keratosis and those of the older people and maybe he was using i p l as an experimental technique but he also used other very well accepted techniques such is you know the nitrogen technique such as cream such as using the i p l with the acid that was put on he didn't do that with any of the eight people who were the subject of the indictment after the blue cross guy had the conversation they they just stopped and he didn't follow up in any way that's an interesting piece of circumstantial evidence judge in reality the blue cross and blue shield in two thousand and thirteen but if they hadn't meeting with dr memore blue cross and blue shield indicated that we are not going to l because it is experimental and so what happens he doesn't switch over to the other techniques at that point in ricky just he just says here's the bill for three hundred dollars judge the building dropped from thirteen patients to five so it didn't he didn't stop there are so many other factors that he's a heap he had the individuals judge look at the obamacare that happened there was in the beginning there were deductibles that has to be met a look at the timing that the bills brief and understandably nine separate pieces of evidence is as you lay them out and i also read the code it was an argument that mr stays made to the jury  but doesn't that doesn't fact come back bring us back to the point the judge would is making about the standard in this core you know as i as i read the case law has to conclude under jackson versus virginia that the record contains no evidence regardless of how it's weighed from which a jury could find guilt beyond a reasonable doubt that's a high burden is it not it absolutely is witnesses the government's witnesses it do not support the government's point of view they do not from the expert that they had dr ross indicating that a j lesions do not have to be a rat and scaly it could be hidden where that what they could be he does acknowledge at one point what they could be is one thing what dr memoir said they were for these people is another thing altogether they are in fact usually people who were the subject of the indictment had to read and scaly lesions and yet they testified no we didn't you know we didn't have i went in for acne i went in for rose a show i went in for some other thing what the patient had seen could be totally different than what that the memoir based on his expertise of more than fifty yards looking at the difference between doctor memoirs on notes on his medical notes and what was really happening to the judge to many telling me that doctors alone in all professions in our society never engage in fraudulent activity i'm not saying that at all matt wouldn't but but judge in regards to that if you look at this this case judge based on the nine points that you brought up this is a case of a difference of opinion and that's all it is whether the doctor dr memore was the only person in that room who had the medical experts used to determine whether there is a t lesion or not period and then based on his determination but he says something readily observable you have a red spot on your face you have fifteen more than fifteen red spots on your face actually because he was up billing it and the person and then there's a contemporaneous photograph of the person the person says i didn't have red spots on my face that's not medical that's just sheer observation your hon assume to to find that he told them that they needed treatment and they didn't judge all of these patients they walked into a doctor's memos office because they voluntarily and they wanted cosmetic procedures that they didn't have to pay for judge every think almost everything could be looked at as cosmetic and medical field also you know there are so many things just it's stuck there ma'am or you don't it was only suspect if dr memoire actually removed a war on someone's nose would that be a medical would there be a cosmetic it could be looked over that's what we were talking i thought with a katie one of the concerns is is cancer absolute in a pre cancerous that that's a far cry from from cosmetic you pre cancerous but that's what it was absolutely it was a medical procedure right not just i mean it may be cosmetic in the in that the lesion goes away but it's also there's also some medical necessity behind you on a breast construction after cancer surgery after it is you know not something that he sees done in the community to treat a kennedy did he not so testify but he said that also he acknowledged that there are articles that fifty two to fifty three percent of the eighty's can be on that as of patients who come in they would get examined and then he would talk they would talk about how to make their skin with better skill or better so there's no reason to think the patient ever saw what was written down in the chart we have no there's no evidence in the record to suggest that there wasn't one patient who testified that especially as she continued to get months and months of these i p o treatments she  suspected that dr morrow was doing something to fool for insurance company and she continued going to dr morris practice specifically for the i p l treatments that she was somehow getting the insurance company to cover while she went to another dermatologists at the same time for her the medical issues that she want to trust and those records those limits the record to the trial record with respect to that the patient witnesses that the government called did any of those eight witnesses testify that they were and by the doctor that they had a pre cancerous skin condition i believe most of the patients have clear testimony about that i think some of the questioning might have been nice to hear about some but most patients  clearly that they did not recall the doctor ever telling them that they had actually keratosis or precancerous condition to have to be treated medically or that the treatments they were getting the ideal treatments were for a medical reason the patients thought it was fo aesthetic reasons for cosmetic purposes or to treat conditions other than actinic keratosis such as more sation so it's so huge the government is arguing to the jury if somebody really does have something serious such as a precancerous  lesions one can assume the doctor would tell them that yes and that's what the defend himself told the f b i agents when he was interviewed that when a patient actually had a condition such as that in a cure or ptosis it was a serious issue he would tell them about this condition he would go through treatment options and he would deal with it and he had patients like that memory he had older patients right who were more typical a k patients yes as you're out of this gust earlier i think there's sharp contrast between the patients that the defendant introduced in his defense case and the patients who were introduced in the government's case and she and i think that actually highlights some of the issues here and it does raise support the re what he was doing when he put the false diagnoses into the patient's charts from the government's on the ones in the case in chief he treated all the patients whom the defendant called his case they were familiar with their conditions some of them were even able to point out there to cure ptosis lesions that they had that they were familiar with other treatment methods that the defendant had used over time and so all of them and some of them had their treated them very differently he would have talked to them he would have he would actually reviewed some of the treatments and why the treatments were having no medical fact after months and months and years so could you could you posit that for a minute because one of the things maher pushes is that there was a difference of opinion in the medical profession about whether i p l along without the acid without other supplemental treatments might be an effective way to treat a k and i guess there was some discussion about a power point presentation where he's a little more cautious and says it's still experimental but doctors do off label and experimental things from time to time and that's ok it's the other dermatologist who was called dr robinson robinson yeah she asked acted she was asked if she was asked a question about this and her response showed that she did not believe i killed lone was a method of so you see this is a fact that the jury would have resolved no instead as they were told during closing arguments they did not necessarily need to reach that issue because if that these patients didn't have the diagnoses were faked to begin with it didn't solutions then obviously whether or not i killed would have it it didn't when they would need to resolve the question as to whether like e l o would have destroyed such leech's and so they didn't necessarily need to reach that issue but syrian in the government's opening summation and of the statement that was made was that it that he is needed to blue cross blue shield that the treatments were cosmetic or for photo a nation purposes correct yes when in fact what his actual statement was to blue cross was that they were preventative yes isn't in the context of this case isn't isn't that difference is it meaningful and what i mean by that is when you're talking about a k right and we're talking about a pre or a cancerous or precancerous condition the word preventative you know mate may support the view that he's he's treating a patient for a precancerous or cancerous skin condition your honor right now their words it's a that that the government's use of of photo rejuvenation and calling it cosmetic is of some consequence or should we not be concerned about that in the context these facts ultimately hear no because ultimately here the issue as was raised in the government's hoping summation might have been it very clear to the jury that there was a very stark difference you know in recollection as to what was being said what had been said thus putting the issue in front of the jury so your point is mr mr stays made the exact point that i just made did object to this did not object but he did challenge the government's arguments regarding second of all the jury was properly instructed that what the counsel says is not evidence and that they should rely on their own recollections of the evidence and again specifically being addressed in the course that possibly she'll meeting the jury did see the patient files and did spend a little time going through that because a patient who had a surgery who had a scar from the surgery and then  solution that he supposed to treat with i p l so again whether the ultimate treatment whatever the defendant said about those words was not something that the jury necessarily needed to resolve in order to conclude that the diagnosis falls in the treatment was improperly build it with possible shield one of the two theories we've got the health care fraud series and then we have the making false statements related to the health care fraud seems a little bit piling on me he gets the sixteen guilty verdicts that the health care fraud itself i take it is  record or training his staff and causing them to put false information into the renter's which they did by basically just simply copying the original false statements that the defendant made when he first added in the  the witnesses of the government themselves said that if dr ross indicated that that if someone looks at his records it may look like he's copying and it's the same think it's the same thing that if the same procedure is happening the next day and the next day it's the same idea that maybe someone who's doing it is not copying but is just writing what is what written about so they can the should not be part of an intent to defraud the government though do deprive the insurance company and judge in regards to the difference of opinions that we're talking about if you look at the chase dr ross as a physician who's eighty percent of his practice is about cosmetics that's what it us is not at there mythologised perceive that deals with the diseases everything and if you look at the difference of opinions of these two individuals dr memoir who was hands on who was in the room who had the first hand knowledge of the skin of the patient and thirst for someone who's just reading read the record we are now sitting in a situation that this court is trying to look at the second opinions look at the different opinions of individuals and try to use that against a defense and if you look at the july of  six judge the congress report indicates that the congress never had an intention to use thirteen forty seven to penalize the exercise of medical of judgments of health care treatment choices made in good