of your own as the way that i thought that i could be most helpful today is fine airing my focus and spending as much time as possible talking about one issue as it applies to one witness because while i think that we have a number of winning arguments both on the substantive counts and at sentencing ultimately at the end of the day testimony in part set out the government's trial theory which turned on this ecosystem of healthcare fraud money laundering fueled by the pain of cash kickbacks he also explained how the jury could infer that kickbacks had occurred even without direct proof and then that improperly admitted testimony met up with the government's rebuttal argument when in closing the governor referred to kickback evidence that didn't exist the counsel your time's ticking and i'm just a little continue doing what you're brave to but it's almost like we don't know where to begin can you prioritize and tell us what are your most expert so it's testimony is likely to get special credence with the jury the second high level point is that he was a framework or a backbone witness his test he was critical to the government both for what it did on its own but also for the way that the government used it to tie up the other circumstantial piece of evidence and to give that evidence incompetency significance and i think the way to think about his testimony was that it mapped onto the two things that the government had to prove which were broadly speaking that there was fraud occurring at the fun site clinic and not just with respect to the charge eason had nothing to do with them but that it was occurring more broadly so that the government could wrap sarkies in as the office manager and and also that he had the knowledge and intent so we've identified four broad categories of his testimony which goes to your question of prejudice those categories are the red flags of health care fraud the supposedly all that off in just plain fraudulent clinics his explanation of the government's trial theory this ecosystem of health care fraud money laundering and then his explanation to the jury about inferring kickbacks even without evidence which creates three as ecosystem and four as what his testimony about inferring that think backs had occurred even if they didn't have quote direct evidence right ok thank you so i'm going to set three and four side for now and just focus on the red flags and his role about his testimony about the role of office managers so the red flags of testimony i think it's important to keep in mind that this was offered not accidentally right at the beginning of the case and what the government did with this your honour's was that it  testimony to explain to the jury why the circumstantial evidence that it was going to hear from the other witnesses or the seemingly innocuous are in big us actually had criminal significance and that's not my characterization that's the government's opposition to the motion and lemon page ninety five and explaining the importance of this testimony the government said because these fraud schemes often involve a combination of seemingly innocuous facts this testimony the red flags testimony is particularly helpful to a jury which may be unfamiliar with complex healthcare fraud schemes including the money laundering components present here the average sure is unlikely to have an understanding of how the complex for fraudulent scenes operate a special agent who just testimony will assist the jury  agent who told you what to look for to see that brought to the curtains or keys and was involved in it and then it went and it ticked off all of those factors and we've quoted that portion in our opening leaves your honor and then it said now what was happening at the sunset clinic and it started measuring all of the fact evidence back against the coots test to see whether or not they had proved their case and that's really important because when you're on harmless error analysis the way that you do it is not as a government suggest surgically removing koontz throwing him out and seeing whether what you have left supports a verdict you have to look at the way his testimony affected the case on its own but also how it affected all the other evidence and so when the government uses inadmissible long for some expert testimony to tie up the circumstantial strands and give them criminal significance that spreads the taint all over everything it's like exploding in impact on the evidence right i think i understand that argument and it's a concerning line what was the jury told about how to treat this testimony  well any jury instruction but was the jury instructed about how to interpret this testimony i know that the fully accurate answer is i don't exactly know what the specific jury instruction is i know that they got an expert instruction and they have course not the normal instruction about interpreting circumstantial evidence but other than that i don't know that there was a pattern is far as you know with the pattern jury instruction the pattern jury instruction was more or less followed other than with respect to the door role testimony but yes ok so what did they what were they told about what form of evidence comes testimony took they weren't actually told about what form of evidence they took so what the instruction was was that you've heard testimony from persons in this case who might based on their that the problem i mean that's one of the problems it's one of the many problems around us but i mean i think looking at what seems contradictory so i'm not trying to hide the ball it's just that you're arguing that a danger and we're always concerned about expert testimony be given being given too much weight right right and so on the other hand you're also arguing their dual instruction wasn't given and so how do we know how the jury really treated this person's testimony right so i think there are different ways you can look at it you know i actually don't think the the instruction your question which is when you use an expert to tie up all the circumstantial evidence right it creates prejudice because you've now affected all the other pieces of evidence and this is actually something the judge shimano you'll be familiar with given your participation in wells which is the case  we cited in our brief where the government did the exact same thing they used in a civil law enforcement expert testimony to tie up a bunch of circumstantial strands and there was criminal profiler evidence and here it's circumstantial evidence of healthcare fraud money laundering and what the court said in that wouldn't hesitate in there it didn't hesitate to find prejudice and so that's the in some ways why i think that the instruction is less of an issue than the way that his testimony was presented in the case so he was set up as the expert the person who's going to give you a unified theory of the circumstantial evidence you look for for health care fraud money laundering the government then returns back to that in closing it says especially concludes told you what to look for to see whether these things have been cruel and then they used the fact evidence to measure against that the other thing i want to say is that people first much as the government you know postures about having this very strong case against mr sarkozy and at the end of the day it was a circumstantial case that depended on interpret in those circumstantial strands of evidence in the way the special agent who is told the jury so here the people they didn't testify at trial voice the doctor associated with the clinic with thomas smith the physician's assistant with whom sarkeesian was supposedly conspiring or corrupt the marketer to whom these supposedly paid kickbacks to the bill or whose name just escaped me but the biller inside the  going to point out that you know this is a circumstantial case and the people who testified about what was actually going on in the clinic where that were the clinic employees and what they said was that number one that it was actually a real clinic that performed real services  testimony that folks are coming into the clinic and and seeing a physician's assistant rather than a doctor that at least one witness said that the claim didn't really have medical supplies there was testimony about the large number of the same kinds of tests or same diagnoses and that would be very peculiar and if that what about that test so breakpoints and so what is the significance of those pieces of testimony as a lay person how do i interpret that testimony do i know whether that's normal or whether it's not normal and special agent is the person who told me why that's not normal now as to the specific things the red flags right right because those are the red flags right right and so that was the way the government knew what these people were going to testify to be sure before trial which is why they called at the beginning of evidence have been set up the red flags then had the people testify to the red flags and then called and then referred back to his test again and said look we proved it because you would look for these people said it with respect to whether or not the clinic had actual supplies that was testimony given by dr bass at a different clinic when you actually look at what the clinic employee said and they said that it was a real clinic that provided services i understand was can contradict the testimony to be sure but of course we're viewing the evidence and like we're viewing it at this point after conviction and they did he have evidence right right exactly exactly and i think you know the overarching point iran is that this was a circumstantial case there was no direct evidence and the thread that the government used to tie the circumstantial evidence together and to give it in copa towards significance especially in koontz and when you pull the thread especially as it affects everything else along with that the other thing i want to say on the issue of prejudice on the second category is that this is even more prejudicial than the red flags testimony which kind of spread very wide that this is very focused specially testimony when he talked about the supposed role in his expert opinion that office managers plan fraudulent schemes was among other things it's typically the office manager orchestrating the fraud and hiding it from the medical people in the clinic it was the office manager has an active role in the medical practice of the clinic and take the position of the physician's assistant what types of services they need orders for so that the office manager is controlling the finances of a fraudulent clinic in almost every case regardless of the evidence i mean that would be bad enough if the government just let it sit in evidence but then the government went back to it again using inclosing but in the courts where he's in the fence so his defense was there wasn't fraud happening but if there was fraud happening i'm the office manager i'm not involved in the medical care that's going on that's something that happens with the physician's assistants and with the doctors and if there's any question of that government expert record thirteen twelve and thirteen forty seven are the clinic employees saying that circumcision had nothing to do with the medical care inside the clinic right so after makes this what is a very damaging statement pointing the finger too and typical which of the expert testimony in the typical scheme is the office manager i'm shamelessly paraphrasing but right there was an opportunity to cross as soon as i say this last thing i want to return back to something else so here's what the here's the way the government used that testimony in its closing for about some reasons court offense where the government said was quote special agent who is also talking about who perpetuates the frauds in these places sometimes it's the owner or manager who perpetuates the frog and oftentimes that personal hide from the doctors or others at the clinic i mean what that is is the government putting an agent on the stand under the guise of expertise and having that agent say people who do what sarkozy and does are almost always guilty of the crime that's pretty damaging that's pretty prejudicial now as to your question about cross examination that actually gets to the broader point which is all of this testimony is not in this bill in this case under baron so i don't know if there are questions about that but you want to speak to that is yes no i i you make the argument ok at this point i guess so i talk about the first two categories and i think if you consider the red flags testimony which then wrapped in all of the circumstantial evidence  the government used in this case it's clearly prejudicial requires reversal when you use the role of the office manager testimony which is extraordinarily prejudicial that requires reversal when you take those two things together your honour's this case has to go back i want to turn now and talk for a little bit about how the government's improper rebuttal and i think the important thing to know about the government's rebuttal argument is that the government has kind of a template that it uses for health care fraud cases and it tried to map that template onto this case but the facts didn't fit so the template  the patients don't actually need medical care because if they needed medical care then it would just be medicare it wouldn't be medicare fraud right that's just the normal way that health care works so in order to get them into the clinic you need to pay them cash once you have them in the clinic you can use them to deal medicare and then once medicare when it's payment to your account you need to make that into additional cash to get more people in the door so that is the eco system right and it's fueled by the pain of cash kickbacks which is why the kickbacks were so essential to the government's case why the government talked about them in pretrial hearings why the government said in opening it promised the jury that it was going to see this ecosystem at work but it's your argument really that there was no evidence of ecosystem that would have allowed the prosecutor to make that argument no here's my argument so the government said two things in closing right number one it said that shark using was paying for patients that he was making progress at a patient referral payments right and number two was that the patients themselves said that they got cash to come to the clinic those were the two statements that the government made in closing and the best evidence that they have on that your honour's are two pieces right so there are clinic employees who said that sort he's even used to pay our turo and they would talk behind a closed door driver right and the problem with the head is that search even as the office manager did the payroll he was responsible for paying everybody the other more important problem is that as the government prosecutors well know but the jury probably didn't there's a huge legal difference between paying a person salary even if that person is known as a marketer and paying that person for pro rata patient referrals in the government had evidence of number one they didn't have evidence number two and you can only stretch a fair argument rule so far the second piece of evidence was the testimony that's cooperator tarrar restraining and racine's testimony was that he's a liar that he lies when it suits him that during sixteen pretrial interviews he didn't say anything about sarkozy in saying anything about meeting cash the important thing about his testimony couple things number one when he was pressed on cross well when did sarkeesian say this to you this statement about needing cash to pay patients he said i can't possibly remember how can you even ask me that it was so long ago that's important because and that's cited in our opening brief it's in a footnote that's important because sarkozy and racine and knew each other both during and after the sunset clinic and turkeys in work that health care clinics both during and after the sunset even if you credit that statement there's nothing to take that statement uncovered from con and to convert it into a statement about the patients at the sunset clinic so you think it's not a fair argument not a fair argument but this is the more important point actually  that's critically important and this goes right as i was saying as i was explaining the payment of kickbacks is core to the government's theory of this case and then when you combine that with couscous testimony which is all wrong the admitted and he tells the jury will find the that kickbacks have occurred even without evidence and then the government in closing says what we proved to you kickbacks but there is no evidence to support that when you combine those two things together they amplify and they create this i would say an untenable danger that the jury would have how the kickbacks have been proven  even without evidence your own as well into my reserve time like that i just have one quick question counsel did you request the trial court to give the ninth circuit model jury charge for dual fact opinion testimony believe that we requested it although when you look at the pattern instructions what the pattern instructions say that in a criminal case it's clear error whether in actually there's a case and i'm blanking on the case name but even in that case where the defendant the morning your honour's a minute please the court kathy ostler for the united states i'd like to address one issue right off the bat that's a factual dispute that or at least that sounded like a factual dispute and this is regarding special agent commences testimony let's be clear is was testifying solely as an expert he was not testifying as a percipient witness and he made that very clear that he was not testifying as a percipient when as he made it clear he as he did during his testimony we cited some examples of that in our papers he did i just want to make sure that i heard you correctly today you're you're relying on on that because i've got those sites is that yes ok yes your honor thank you and secondly the expert instruction that was given was a model instruction was based on the model instruction for expert testimony and michelin the model instruction had a placeholder for the name of the expert the government at the end of the case suggested that the court and put in special agent  name into that instruction the defense actually said no your honor there were lots of people who testified we think you should just make it vague and say persons and not name any individual by name and that is in fact what the court did so the district court actually took the defense's proposed expert instruction no one asked for a dual instruction and frankly nobody testified as a as a dual witness special agent who certainly did not and i would argue that the the two other special agents who testified who is or who are referenced in the papers were not arguing as export not testifying as experts either they were lay witnesses who were testifying under gadson under under the as they're based on their own preferred personal knowledge of events i also would like to address the fact that special agent koontz's testimony was repeatedly referred to by by mr snyder as inadmissible  improper in fact it's modus operandi testimony which has been repeatedly upheld by this court several times even most recently in the health care fraud context in the published opinion and sure enough scheme which came out earlier this year the  cases are very clear on this that if there are facts that strong that independently might seem innocuous but when strung together reveal a modus operandi of a scheme or a conspiracy usually in the drug trafficking context that's true but again in health care fraud ensure not ski then that and that testimony is admissible if the agent who's testifying has the experience to testify about it the concern that this court has raised repeat oddly is when you have the same witness who is providing that testimony and also was involved in the investigation and is testifying as a percipient witness that did not occur here because special agent who is could not have been more clear that he was not involved in the investigation in explicit findings made on the record about special agent koontz's expertise and whether he was relevant his testimony was relevant and reliable and in fact i would submit to the court that the court the district court did make implicit findings of relevance and reliability where we were shipping look i would suggest to the court that when you look at the oral argument on the motion in limine a and look at what the court did in that context first thing the court did is they knowledge that he had reviewed all of the materials he said you know i'm i want to make sure i've heard everything so what does that mean what is he looking at he's looking at two hundred pages of material on special agent who is in particular other  that interview reports that he's that he gave prior testimony that even defense counsel said was virtually identical to the testimony that he gave here in the army ozzie smith case which is referenced in the papers in our papers ruling the prior year in the on the ozzie smith case that special agent who is was a reliable expert promoters operandi testimony and based on all of that the the court considered all of that he asked if a question's tied to the law on modus operandi he asked about the ninth circuit law in this area he asked about the other district courts and the defense admitted that there were no district courts excluding this kind of testimony excluding special agent coombs in particular and then he listened to oral argument he listened or oral argument twice from the defense he listened to it as well from the government and at the very end he said i've heard enough which basically our impression at that point was that he was saying i've read all your papers i know what your arguments are i disagree with you this is not a question about relevance because clearly this testimony was relevant no one disputes that and frankly it wasn't really a test of question of reliability because russian agent who's had twenty years of experience he had been doing health care fraud cases hundreds of them he had testified almost down to the explicit word what he said into it in court but i think your argument is different somewhat different and i'm not sure maybe you could just fact experts we provide operative case forgive me for interrupting but if that's the case that's my understanding of your argument and so what i do with the testimony about the district court who made again i'm going to paraphrase shamelessly but but he made a statement about to the effect that he felt like what you have there are examples of lay witnesses lay witnesses who maybe occasionally threw in an expert statement somewhere along that when it reads and i would refer the court back to gadson gats on this point because what gatson says is look in vera we are worried about somebody who comes out there as an expert and then starts talking about lay witness testimony percipient witness testimony and the jury has been is knows that this person is an expert and now they're hearing about percipient witness and they think oh my gosh you know i guess i should give it a heightened sense of importance because this person is an expert here you don't have that you have people who are lay witnesses who maybe threw in an expert statement and i would say i would suggest to the court that at least with special age those statements to the extent they were made at all were invited by the defense because they came out on cross examination and then i circled back on redirect and then with a special agent tweet it was cumulative of things that other witnesses had said so setting that aside in going back to gadson these are lay witnesses they're not being held out to the jury as experts and they slip in something insignificant there and that that would constitute an expert statement and  that's ok i do want to get back to one question though about the findings because i think it's important that the court understand that you know based web arab and says is that if this court is not satisfied with the findings that w made it can go back and do its own findings and in fact it has done that and it acknowledged that again in the criminal context in the christian case which is excuse me which is cited in defendant's reply brief and it's also a most recently in case which was an unpublished opinion six zero three fed appendix five five eight at five six one nine circuit twenty fifteen that's a modus operandi case and the court looks at what the district court did and then it makes its own finding and says based on our review of the record this expert witness does agent was a reliable his or a testimony was reliable so i submit to the court that if you not happy with what did in making findings this court can go back and look at all of the materials we provided and make its own decision about scuse me about special agent who says reliability i also know that the pyramid technologies case that the defense cited that's exactly what the court did in that case the judge had thrown out three expert reports and the governor of the ninth circuit the pan this court went back and said let's look at these three experts what are their qualifications what are they testifying about what did they do now those are more scientific experts on like law enforcement as hankey suggests law enforcement may be treated differently than typical scientific experts but the court this court went back and did that and did that reliability analysis and said you know what the district judge got it wrong two of those experts should have been allowed to present their reports in opposition of summary judgment motion so much when it's a lay witness who says something that sounds kind of expertise especially here where at least as to the two doctors that testified and the two main medicare witnesses for whom we provided protected notice we said yes certainly your honor we the government's position on that was that the two medicare witnesses were testifying about how medicare works what medicare considers important and as the victim they were talking about what is material to medicare and part of a jury instruction that said don't consider any of this evidence as to defend and circassian it only applies to defending her goes right that's right ok thank you so i just want to clarify that ok i'm trying to clarify that two women whether talented hand knowledge of the case that's correct they did some in preparation preparing for trial they did gather some of the tiriel for us but they were not intimately involved in the case doesn't that makes them expert witness and not according to the case law your honor because  case law talks about they're in they did that in their capacity as medicare employees who are in educating the jury about medicare and how it works and to show that medicare was in fact defrauded here because he had medicare known seven sort of talk about this where materiality where you have to with the government has to prove materiality they can call a witnesses who can say this was important to us we would have liked to have known that in fact these patients were not coming to the case but these are not firsthand knowledge so they can say that you're talking about the ones that you presented that you're saying are not experts but indeed they were are they your own even if they're an expert on medicare procedure we submitted to the to the defense that we did not consider them to be experts we were aware of the judge he had found jodi whitman in fact to be an expert the year before in the you smith case we do not believe them to be experts because of the cases like philips and ranee and bush  mentioned to you and also the the fireman's fund in harrison cases which talking about witnesses discussed in organizations practices those are in our papers as well that don't have a tough sell it's not a but we wouldn't expect a jury to know what what is or is not material well that's why you need somebody who can say this is material because it's it's the burden of proof on the government and i don't understand why you need it the question is why isn't that expert testimony we believe that that based on these this case law that talks about how these witnesses because they're speaking about their experience as medicare employees that they're cut talking in the context of what is medicare as a whole medicare is the victim think is material that is not going to that's not expert testified many times again almost identically to how she did it here we provided the same kinds of materials that we provided for special agent koontz prior testimony prior witness interviews a c v hundreds of pages of materials we provide at the doctor's interview reports and there c v s all of this material was provided in order to give the defense the ability to challenge them as experts if it wanted to and also to cross examine them when the time came so they had that information and then at the end of the day they got the instruction they wanted which basically said to the extent you heard something that sounded kind of expertise jury if this is how you evaluate it you don't treat it any differently than anything else yeah just on money laundering did you present a special agent cunts as the money laundering expert and did you notice in for that we did not identify him as a money laundering expert we are what we said and what was clear from our papers is that in the letters we provided the disclosures was that money laundering plays into health care fraud because of the kickback issue and so we put them on notice that he would be talking about kickbacks he did talk about kickbacks because it's important for a jury to understand that you can't pay a patient to come to your clinic now i would like to address that point because that ties right into the rebuttal argument that my opponent made it with the rebuttal argument if you look exactly at what my colleague said she said that what and what didn't dot miss defendants or kids can do with the cash this is a g r twenty eight forty four you know that he was paying the market or that's arturo marketer by the way was his word and she says that she just says he described her as a marketer you know that he was paying the marketer you know that from the clinic employees the two employees loped and del carmen lopez testified that they saw him paying the marketer or at least that he paid everybody including the driver and at least some of them said he was called a marketer sarkozy and called him a marketer that's what he did he went out and picked up patients off the street and brought them to the clinic arturo's finding patients up the streets you know that he was paying them because that's what they told you who is paying who the only thing in that sentence that talks about pain was eon paying the marketer and the only thing about what somebody told somebody was what the clinic employee said about paying the market or paying all the invoice so look if we're in the area here where we're talking about pronoun references that is the only place that there is any indication that of paying for patients paying patients to do anything there was no evidence about paying patients directly but rose dami and testified that sarkozy and told him he r twenty fifty eight ok i asked him did he say why you needed your help to take out the cash he said during our conversation we sometimes talked about that in my understanding it was for pain the patients or the doctor and when i and then i said when you say paying the patients what do you mean and he says sometimes these clinics they have patients that they get paid for accepting taking medical tests and cooperating with the clinic for making some medical examinations so and then i clarified so paying patients to come to the clinic is that what you understood yes and i would say that special agent testified that sometimes they weren't paid they were offered free medical equipment and in fact one of our beneficiaries one of our patients mr ponce testified and are clearly in the realm of preponderance of the oven in standard here because the one point two million dollars which includes not only the claims that were billed by the sunset clinic but also the claims that were referred to outside providers who then bill that one point two million dollars is clearly within the scope of the health care fraud scheme that was alleged in the indictment and proven at trial when you're within the scope of the scheme the cases that we've cited and they speak to that they speak to the cat is a conference of the evidence is not clear and convincing standard and so we are well within that ballpark when we're talking about this extent of the scheme this is not uncharged conduct it was all right in the indictment that these referrals were going out but i thought you agreed at the time didn't the government agree at the time that it ought to be the four hundred i'm on thousand dollar loss calculation so that is the paying out your honor you know it's the amount paid not the mountfield but i thought you didn't come out to four hundred fifty which was the paid amount of because we included claims in there yes that were submitted but denied right yes and so it was more like six hundred thousand using attended intended yes because they were submitted in tonight but you weren't using one point t right because we took him at his face value that we took his declaration at face value that he knew the rules the judge obviously did not buy that because of the inconsistent positions that the defense took a trial where he was saying i don't know anything about  honor they were in line fact the p s r pre sentence report statements were largely uncontested and so the one point two million was there we did the government did submit that lower number based on the pop up declaration but the court went with the preacher with a probations recommendation that the intended loss and that was one point two million so the court in implicitly rejected the defense's pop up declaration and what could have done so easily because we know you didn't it's fine and probably i interrupted you i bet but but here's the if you could just get your response it seems to me the court in agreeing with this is the court in agreeing with the probation report the court agrees with the aggregate dollar amount of  submitted to medicare by the defendant as a manager the son kwikset clinic and they give the one point two million number more specifically than that and that the amount was actually actually paid was for fifty one correct theory correct that shape that your position was the intended amount that's that's not here i don't have it the judge commenting on that actually it all well and then we get this sentiment so how do i know what the judge did the judge went with probations recommendation which was our initial while in adopting the p s r he's not he's essentially rejecting yes it's not a it's not a trick question i'm trying to make sure that i understand that you're just asking me to draw that inference about his reasoning because that's the number on the judgment there's no i mean didn't did he mention anywhere else in the transcript that i'm missing not that i'm aware of ok that's i'm not that i'm aware of thank you thank you i'm sorry to have gone over we took you over to thank you for your argument we're going to just hear from opposing of quick points in response i know my time is short so staying on special agent comes because this is really a critical issue one of the arguments that the government made is that you can rely on the district court's implicit findings and we went through all the cases in our reply  i would invite you know judge chris and i know you participated and so do you promote ever c'est un at page ten sixty nine of that decision it reviews all of the cases before it and it makes clear that this is not about the quality and quantity of the evidence that was before the trial court when the trial court didn't make berryman is a three part opinion and it has three roman numerals roman numeral one is about gareth says the work trial court fails to make an on the record finding that's an abuse of discretion roman numeral two so the normal next step is you go to harmless error and this is where you get the back and forth between judge when and the majority opinion and what the majority opinion says in response to judge wins argument which is exactly the government's argument is the dissent contends that we must decide whether the evidence would be admissible before engaging in harmless error review however the dissent is reading a non existent step into our evidence or case law and about thirty more seconds on this one issue can i finish or so the court then goes on at page four sixty six when the district court advocates its sponsibility to answer a threshold question of the miss ability that's the filler to make the finding we need not determine whether the evidence would be admissible before we go to harm the stare the third part of that decision only applies where the verdict loser the person who suffered the air asked for a special remedy or the court actually enters judgment in its favor where it