deal found himself being prosecuted and make no mistake based on only one theory by the government and one theory only and that was the fact that he did not wholly own a clinic that was licensed in the state of florida and to the heart of the matter our argument in this case is that the prosecution the conviction represents nothing less than prosecutors legislating and criminalizing conduct that the state of florida has not done and has not spoken on and this record is replete really with personal opinions based on my cross examination of the agent in the case where when dr deal has one hundred percent ownership of a stock of the company and can open it as they agreed can close it they agreed i think i flippantly uncross said he could have turned the clinic into a taco bell and they agreed and i said then he only owned it and basically their answer is no and the reason why i say the government entire case is the lynch pin on this is because the government knew going into this case that the answers of their coconspirators who were cooperators were going to be that this conspiracy to have fake accidents and fake patien hidden from dr deal and therefore their argument as to his guilt was only that because this clinic wasn't licensed it didn't matter what he did it didn't matter he saw every patient and it didn't matter how he handled them he was guilty of fraud and what concerns me now today is that his conduct is one thing with everyone else's with other doctors that he had no knowledge of and didn't work with when at trial i was the only attorney that put in medical records of any doctor and that's my client's doctor's records and all of them show that unlike anybody else he did not meet the government's allegations of this fraud p i p conspiracy  prescriptions that were designed to maximize p ip they had this i'd like to talk about that wholly owned issue yes or so is that a question of fact and if so is the government right that there was evidence that he didn't in fact own the business because he didn't pay for it and there nerd money when he sold it did not share in the profits and called him self a puppy owner or owner on paper well what i'm saying that that is doing is in the absence of florida defining what wholly owned it is that is criminalizing conduct based on personal opinion put they put an expert on the witness stand ronald jones and he said here's what wholly owned means and he took it from a separate part of the florida statute and what he basically said was is you have to be involved in the day to day business you have to do the marketing you have to do the payroll and my response is whoa to be a physician that spends forty or fifty or sixty hours in an operating room did you ask for any kind of instruction by the judge to define wholly own what what  honor was that i had always been very concerned about this issue and a case from this court in a civil context came down the silver star case that listed some of the definitions that judge pryor spoke about but m i brought that to the court's attention but my position is that's a civil case dealing with a florida civil statute and i understand i'm ok asking did you ask did you ask for an instruction asking the judge in some way to define it or you know just say it's up to the jury to decide the law which sounds bad so that's why i'm asking did you and just as i said it is based on my recollection although i brought this over start a jury instruction to the court i objected to it based on circuit and probably throughout the country and that is dealing with the issue of the government's repeated refusal to record interviews of targets and defendants on in this case i asked for a cautionary instruction not an instruction saying there was anything wrong with what the government did or saying that it was improper i asked for an instruction actually that was very similar to what we give in the case of confidential informants just cautioning jury that when such things happen what you're really hearing is an agent's impression or interpretation of what the client said and not what the client actually said and therefore it should be viewed with more caution because what happens in these cases is the government puts an agent on the stand and no matter what we do even if we put our client on the stand to say that's not really what i said or what i meant they're going to believe the agent or the defendant first thing they say is the agent has no interest in the outcome at the district court did it not and instructed the jury that you must consider the evidence the government's evidence with caution and great pair you must decide for yourself whether t venda made the statement and to if so how much weight to give it it was that in fact and instruction the district court gave and if so why did not exactly cover the substance of what you wanted instruction was to give these these interviews more scrutiny right but but you know and i understand the district court didn't get that instruction but my concern is whether the instruction that it did give basically covered the substance so that there here's where i don't believe it did because that instruction i think that you're referring to is just a general instruction overall and it doesn't focus on the failure to record what we're dealing with here is an agent's testimony about what a defendant said and that i believe requires special scrutiny requires special treatment because the government repeatedly just refuses to record and the times when we do get recordings very often they differ substantially from the agent's interpretation of what was said in the reports i mean there can be major differences when we do have recordings and usually that happens when they're state agencies involved because they do record and there should be no harm in recording we should encourage it that is the best evidence and so i'm not asking the court to exclude evidence just because they didn't record it but i think we should be entitled to a special cautionary instruction something that would encourage them to record so that the defendant has a fair trial on these issues the other jury instruction that the court refused to give is my theory of the defense instruction and that dealt with some of the issues that mr rosenstein discussed which is basically the management issues and my instruction asked the court basically to tell the jury that the doctor may not have managed the business the way he should h not have directed his employees the way he should have but that does not mean he was part of the fraud in dr keros case i have government witness after government witness after government witness saying my client did not know about the fraud they hid it from him they purposely didn't tell and you have one star government witness saying i never said the doctor knew what was happening in the clinic i made sure he didn't know it and despite all of  that the court refused to give an instruction saying just because his employees committed fraud you know he's not responsible and the government kept arguing basically a pinkerton theory saying that he's responsible morning i want to focus on the sufficiency issue we've basically argued that there was no substantial evidence of fraud conspiracy or fraud substantive offenses by mr christ dr kreitman and there was no evidence at all of in joining a money laundering conspiracy or committing any substantive money laundering offenses i want to focus first on the lack of substantial evidence on the fraud conspiracy like as similar to other other of the doctors there was it was clear that there was the most intense part of this conspiracy was doing things that would not reveal to the to the chiropractor that there was any kind of fraud going on much less that there was this elaborate what the government calls sophisticated staged accident fraud and again government doesn't dispute that there were accidents people were in accidents and they did when they went to the doctor they did know the right soft injury claims to make and that these types that they're not saying the doctors could buy physical examination have to disprove them what they're saying is that somehow his other miscellaneous and really anomalous conduct by the by dr kreitman somehow shows that he knows either he's not a good doctor is he knows he knows something's wrong miscellaneous than a not normal as conduct you mean sign forms and this sort of thing yes indeed you're zero point zero one percent of them he may have signed one or two forms ahead of time again there was never any persuasion on this and it doesn't nothing to do with the conspiracy there is not describing was the one who had actually spoken with the agents yes early on right he spoke two years after he  left the begin how does he leave why does he why is he fired by the them because they say he wants to spend too much time taking care of the patient that's the actual communication i wanted to ask you before you vanished a record question so is the on the money laundering aspect which is that basically that comes down to his receipt of two checks one is this two hundred fifty dollars for a half day work at thirty six rehab and five hundred dollars for a christmas bonus yes both checks are in the name of the companies their one check is made out the bigger check is made out in his name the little check is made out to cash i think that's i suppose that's their issue but it's not but he's gets checks all the time and he it's this is a to have this is this is how that's not money laundering that's the first one is not money laundering by anybody because it's just if it was it would only be somehow under the one of the three theories that they argued but it's not even usually you don't even charge somebody giving a payment to somebody else in the conspiracy as promotional money laundering i don't know that they've cited a case for that and and this is just  and that's from the people who are giving the check but for the receiver of the check it's all backwards it's not it's not a legitimate basis for charging either subsoil as i understand it their argument is that the payment those payments represented proceeds even if that theory holds up and it doesn't hold up in the case law it doesn't mean that that that you could say that about two drug dealers do a deal one guy who takes the money he hands half of the money the other guy that's not a money laundering offense it's that that's not the really is not even a proceeds under under santo santo in the supreme court talked about this multiplication of offenses this is a classic example i mean this is if they had a case at all but this is one anonymous anomalous check from the company house a company hiding he's cashing he signs the name on the back of the check i mean it's so it's clearly the promotion is the promotion theory does not apply to him he is not promoting he's not a conspiring to promote he's receiving ok i think we understand your argument you'll save your two minutes for  good morning ours madam clerk counsel for the united states may it please the court the defendants have each sought to narrow the scope of the charge conspiracy so that they can each argue that their actions fell outside of it and we saw that today with mr kreitman saying mr clemens counsel saying that this was a staged accident conspiracy and because he was not involved in state's accidents he was not part of the conspiracy this was a conspiracy to defraud insurance companies and there were six manners and means that were charged in the indictment that relate to how that fraud scheme could work this is a very complex and sophisticated scheme involving recruiting doctors to pretend to be the true owners of clinics so that they could avoid the licensing restrictions of the state of florida it did involve staging accidents and mostly it involved providing false forms to insurance companies in order to get the money that they could use to continue to fund their scheme and to profit for themselves with regard to doctor deals argument regarding the rule of lenity if you take doctor deals argument to its logical extreme no one could ever be prosecuted or found to have violated that particular statute that particular florida statute because wholly owned is not defined so is there any really saying that the common use of hol own would be you know a corporation i own one hundred percent of the stock i normally wholly own it right i don't think they're saying that it's never vague and never adequate but in this case he meets what seems to be the first definition that's kind of why i was pressing him on his side whether he had asked for an instruction and that effect but nevertheless he's not saying that it's so vague that nobody could ever violate it i don't think well i think what he's saying is let me first address the issue of the instruction and i apologize that i and i don't have a copy of my response here dr deal filed a motion for bond pending appeal and part of that was that the jury instruction because there was a theory of defense instruction regarding wholly owned was objectionable and in my response i noted that ms gold or when she asked for that instruction which the court adopted said she was asking for it because mr risin stein had asked her to ask for it ok let me ask you one other thing on this on this general area just now and in your brief you said well there are six manners and means that work were used but correct me if i'm wrong as a general matter if you don't have a special verdict and you say well the jury could have convicted on different theories and one of them is bad for some reason substantive procedural or otherwise th generally the verdict can't stand because you don't know which of the theories they convicted on my right as a general principle well and if not why not and why wouldn't it apply here assuming that we agreed with him on the point he raises that is why did the other five means save you ok well first of all the the eleventh circuit has has held that the manner and means is actually surplusage you need to look at what the object of the conspiracy was and the object of the conspiracy was to defraud insurance companies in order to unlawfully enrich themselves by submitting false claims for insurance benefits that is the scheme that was charged that is the scheme that the jury convicted of and the with for going back to the wholly owned issue while certainly mr rise and sign made much of this ownership of the stock the true facts were and there was testimony from maria tester as well as from luis yvonne hernandez mr deal never really purchased that stock never really sold that stock there was no money that ever changed hands all of these bills of sale were false and mr deal dr deal knew that they would be submitted to the florida agency for health care and ministration in order to get a certificate of exemption that those false documents were mailed to aca aka in return mailed back the certificate of exemption and the certificates of exemption were submitted with every single bill to the insurance companies through the mail in addition dr deal committed other types of fraud now mr eisenstein said that he did that dr deal is the one doctor who didn't follow the procedure  for billing the maximum amount but the testimony was and the insurance and the claims files which dr deal to not submit to the court show that for example his exhibit number one forty five treatments were ordered and billed deal exhibit number two forty six treatments were billed till three forty nine treatments were built all of them were in excess of forty so there so he did in fact maximize the pip as they set it at the various clinics with regard to your other question about whether wholly owned is a question of fact i believe it is a question of fact and i believe that the jury found that he did not didn't actually own any of the items that were inside the clinic he didn't invest any money into opening the clinic sell it didn't buy it didn't sell it luis even hernandez to himself as a puppy owner own wasn't the true owner and the witnesses testified that he was paid a weekly salary to be to be the owner and to see patients there also were there was testimony and mr deal's own statement that there were instances when he did not see patients or he backdated backdated forms so that the billings would be covered meaning the treatment sessions he said that he knew they were putting up a front for him so that he wouldn't realize that patients were not getting treatment and in each instance for all three of the doctors there was evidence that it was mathematically impossible for all of the treatments that were billed to actually have been rendered because there were only two licensed massage therapists at each location the prescribed treatment and the treatment that was billed was an hour to an hour and a half in length and it was simply mathematically impossible for everyone to have done that treatment i want to talk about the failure to record interviews the actual instruction that was given and and it was given  reading the right one you are your honor but if you continue with what you read it actually says you must decide how much weight to give to it to make those decisions you must consider all of the evidence about the statement including the circumstances under which it was made which would go to this issue of was it really was it recorded and are the agents telling the truth about what was said they did they argue to the jury that this undermined the agent's testimony absolutely your honor there was extent i mean there were hours of cross examination about the failure to record and about the fact that the six argued in closing argument yes your honor and part of the argument was you're only hearing one version of the facts you're hearing the  interpretations of what happened with regard to mr creighton and the sufficiency issue this idea that he may have signed forms falsely point zero zero one percent of the time is completely b ramos as well as nelson martinez and marie attest to all of them talking about him signing forms without seeing the patients because he was in a hurry because he didn't want to wait for them one patient had left and returned to cuba  there were just so many instances all of them talked about it and mr craven also of course made a statement to the agents that he knew that patients were coming to the  clinic they were going behind closed doors with maria test and he believed that maria test was coaching them and was paying them for coming out the promotion money are those two jacks i mentioned you have to support that and if so do they support your honor we did have testimony from one witness about mr kreitman being paid in cash on occasion but other than that the two checks are the only checks that were written directly to him from those particular from universal rehab and there is case law that says that paying someone distributing proceeds and using proceeds to facilitate the illegal enterprise promotes the s u way in us vs kelley monthly dividend payments that were given to the gave the principals an incentive to continue their activities despite the risks inherent in such activity and us vs arthur was distributing proceeds to confederates who would not continue to participate in the scheme unless paid promotes the growth in large mn and prosperity of the scheme there's also the case of us vs lawrence from the tenth circuit which said that using the proceeds of medicare fraud to pay a doctor whose participation was essential to the scheme and to keep the doors the doors of the clinic open promoted the s the least as you were quoting them and correct me if i'm wrong it sounds like they're talking about distribution from a money launderer whereas if i understand this it's distribution to the money  launderer no these were these were the the lawrence case was the doctor the doctor was complaining that exactly like this and actually all of these were cases where it was the recipient of the procedure saying well that's not money laundering i'm just getting to quote the quotes just sounded funny but if you say that's what they say will let it but you know i think if you look at it from a different perspective which because here of course the doctor's part of the scheme was making it appear legitimate so they were on the payroll if you think about for example the people who were staging the accidents they received money from that derive from proceeds of earlier accidents and they received their payment which in essence was their salary it was a payment to continue coming to the clinic so that it appears that they're really getting treatment it's payments to continue signing were some of those clients convicted of money laundry were your honor they were  n and so everybody would say well obviously that's money laundering but i think because the defendants have caption themselves as legitimate employees they're trying to avoid these cases that are that are pretty clear attest to testify that she gave mr creighton and the checks so that he would continue for scribing i think those were all the issues that were raised by the defendants does the court have any further questions one thing i thought was interesting about the arguments across the board from the defense is they can all point to witnesses who say they had no knowledge of the conspiracy on that knowledge of the conspiracy issue what's what's the best evidence the government presented to the contrary well your honor i think there's a few things with for example with regard to d i think he's one of the people that hit on this very hard there were statements and you have to look at all of the circumstances of the case for example in all of the clinics there was there were not enough l m t's to actually do the therapy that being prescribed and that was being built there was testimony from that all of these doctors spent say five to ten to the maximum was twenty minutes with the patient they were billing for forty five minute  treatments all of them expressed either to an agent or to another person feeling that people were were exaggerating their symptoms and if you look at perk samples with d if you look at the prescriptions they all receive the same prescription protocol five times a week for two weeks four times a week for for four weeks and then three times a week for four weeks so that when you look at i think it's government exhibit seventy seven which lists the number of their appeals that were prescribed for each person you see identity and that's what i did with dr deals prescriptions as well where it ends up that they're all the same  was meeting with vladimir lopez at his clinics which everybody acknowledges was the mastermind of the scheme he's the person that did speak english dr deal was was writing prescriptions that say continue therapy but then he argued well i never agreed to the therapy even though all of the their piece sheets were put in the file before he returned and that their p c s actually show two times a week for a four times a week for two weeks cetera so all of these resulted in billings that were for dr deal the charts that he mentioned over twenty thousand dollars and those are and that really shows this this plan thank you thomas expired just rising star doctor deals prescriptions completely vindicate him he wrote in prescriptions things like this person was injured at work which would allow for p r p he ordered therapy sometimes three or four times and that was that and when the what the government has done is conflagrate billing versus prescriptions because when you see my cross examination of test and hernandez and i said how is it that he only wrote a prescription for three or four therapies well we build them all and there in lies the problem in the matter that's why dr deal is in fact innocent because when you see what he prescribed yes as she said they build they build they build but then here's the next question to them that he know you were doing that no did he know about your conspiracy not so what we have here and that's why i put these in our prescriptions that vindicate him vindicate him from a conspiracy that was hidden from him and one last thing when they talk about the bill of sale and they talk about the aca exemptions their own witnesses said this was all voluntary it florida law doesn't require it so all of the the facts that they have just said in my reply brief about what dr deal said doesn't require what's the it ok doesn't require the actual filing of the me just make a couple of points to dr cara because i think each of these doctors is in a unique position when you start looking at the arguments and of course i have adopted mr eisenstein argument dr kero did declare these companies on his tax returns he paid taxes on the net profits on these returns in fact sometimes to his detriment it cost him some tax issues when he found out about wrongdoing he closed the companies he was involved in some of the hiring of people in these companies so when you talk about dr kero they made this argument that he was some sort of straw owner but in fact he has all the in disha of ownership just because he didn't manage the companies doesn't mean he didn't own them and that was a big distinction i made at trial and it would be a horrible thing to tell a business person that they can't buy a company and hire somebody to run it because they have multiple companies and obviously have they have multiple managers and c e o s running those various companies i think that's the way of business in the way of the world and that's what things that don't matter to this conspiracy those just so many things whether it's point a one or point two have nothing to do with this conspiracy they do not that's what the conspirators don't want the reason they're paying him is to go there and see these people the very few instances they're talking about they had the site three witnesses i believe to two or three witnesses the one witness says well it was a one time was it i don't know it was maybe the final visit ok this is the sign off is it where the patient comes in and says i'm fine i don't anymore treatment anymore it's not even clear that that was build so if that's their theory and i think that's what's left of their brief because we debunked everything else in the reply brief if that's what's left that's not substantial i don't know whether what number they want to pick to make it substantial but it's not substantial because it's not part of the conspiracy it's counter conspiracy which is the key point here now they talk about that they don't deal with him being a part time employees not just he's just somebody who comes in to do a function he doesn't even get paid by these people that's why they focus on these two little checks that come in because it's an offhand thing he's put he's supposed to be part of a money laundering conspiracy and he's a part time employees not even paid by these people i mean why are they charging the checks that the company the that pays him the temp company that pays him if they want to proceed on the statement they should  proceed on a deliberate ignorance theory because that's the best you can get out of the statement and it's a post hoc deliberate in history but they didn't ask for deliberate ignorance instruction instead they went forward as if they had a case when they had no case they cite the lawrence case that the court wants to hear about lawrence and i suggest a brief and i don't see it in their br ask the court to do is is to look first with money laundering to the concept of proceeds they didn't even prove the first thing that those two hundred fifty dollars were proceeds thank you thank you mr quinn we noticed that colder were court appointed thank you for accepting the point of the appointment and helping us