y of the evidence argument is important to know that it was not qualified to diagnose it we received quote marching orders from the doctors in from the orleans i just thought it would help you a little bit  n the gandhi case elaine davis she also asked one of the doctors after he had been indicted actually come in and signed some paperwork and this court noted that even though the line davis may have been on notice that there is something criminal but that that did not amount to prove beyond reasonable doubt that she knew that there is a conspiracy to defraud medicare likewise here although patients oka routine may have told business those are not a basis to find beauty reason and doubt that someone conspire to for medicare as to the abuse of trust and here it's important to know that just briefly sure government is right in the least one respect in my opinion on page thirty of the their brief the evidence for the other defendants in this case for committing medicare fraud is fairly strong but as the government in knowledge is o gave he then interest into willingly and knowingly a fraudulent scheme for this reason the government's argument doesn't stand government's st argument doesn't stand the government asked the court to consider the fact that home health care is not intended to be a long term care and certainly that's true of the evidence at trial so that in normal circumstances in most circumstances unusual circumstances one would be off on healthcare by say six months certainly the evidence here was that these people run home health care considerably longer than that often as long as several years the problem with this is that the evidence shows the doctor wrote in that st book came in after these people have been on for a long time his job was to review the four hundred and eighty five and see whether these people belong on home health care in the look at those poor eighty five you see that these people suffered things such as difficulty breathing difficulty with emulation incontinence and i'm conglomerating to different people appropriate it is difficult to get out of the house it means that you can go to church it means you can go get your hair done but it's difficult it's difficult to leave the house so and she also said the doctor robinette didn't have to see these people  can ruin it would be the st one to read it he should have been more involved in this practice he should have been watching what was going on more closely what he was engaged in and was really professional modest life he didn't need one thousand five hundred dollars or two thousand dollars a month from this this wasn't some big windfall for dr robi that this was a rather small modest monthly income which he deliberate ignorance instruction should really be given with the knowledge when more and more it is being given in cases such as this one but to get to the instruction there must be evidence that dr  on appeal a gibson three in this court found that deliberately ignorance instruction was appropriate but gibson three was deeply involved in the four in the way the doctor wrote and it certainly was not through kept records of all the patients he kept records of all of the marketing and he specifically told everyone i don't want to know where these patients came from do not tell me where these patients came from to build this facade wrecker and then certainly later on he would view them less and less and less important that may have we don't know why that was we don't know the evidence doesn't tell us they don't tell us whether they were getting better and they didn't need reaction whether his condom it's true that dr robin had looked into home healthcare before he got involved in this and the government makes some points about that on page fifty one of their brief and he inductor rabbinate did it because he understood there was a problem with fraud in home health care but what the government has failed to do in its brief is distinguish the general from the specific the doctor wrote in it understood that there was a oblong with fraud in home healthcare doesn't mean that he's actively aware that there was a problem with this particular home health care program that he was involved in so he looked into it he made an investigation but we don't know what we don't know them we don't have any evidence to show that there was a high probability of fraud in this particular case no evidence that we have the general negligent further there's no real evidence there is no evidence that a robot that sought to avoid learning of the fraud it's true that he didn't look at the files sometimes that's true but there is no evidence  disagree with you and here's why because i don't think the evidence explains why he didn't look at so we know at the beginning and think you can look to page nine hundred and forty five in the record that he is looking at them he's making some corrections he's changing the the question is why did he start looking at them was it because of hughes and alcohol and he was drunk all the time i don't know i don't know if that's true that's one of the nation another one might have been that he was trying to avoid  my name is kevin ross in c v joint council or miss joy will be in this case the issue that i was going to address with the court is our st issue which is whether the evidence is sufficient to support you want that you i was the one who taught mrs aardvark to how to fill out how to process the paperwork in this case was mainly hired as an office admin person to do the administrative paperwork in this case at times did she go out and see clients and she did at times but mainly her from her function was the thought that paperwork that you want to talk her out to do now the question becomes did miss on who booz actions in and what the government would point to is that there is a civic paperwork which clearly shows that the which she signed off on or days that she put into did not happen and so the government's position is those documents on its face so that she was participating in knowingly falsifying documents the question now becomes was does that surprise you to go further to show that she had this specific intent and knowledge and wilfulness to defraud medicare we would submit that that it quid of the conspiracy count and i know that the elements are different from the conspiracy to commit health care fraud as to the substance of counsel in the health care fraud but what's interesting is that is that the jury heard testimony that mr evil and enough to show that she actually had the and willfulness the knowledge in these specific intent to defraud in to participate in a scheme to defraud they get a verdict can't rest on that mere speculation fraud or how they were defrauding medicare on that there was no indication of that at all she worked there for a very short period of time she even at one point brought to the attention of the owners at a time that a person she didn't believe needed to still be on on medicare for that shows not somebody using tinning to do from here that show somebody who is stating a reason that this shouldn't this person should be on anymore if she was intending to defraud she would never brought that to the attention of the owners of time to their lives another support of evidence that she did not have the specific intent to  who testified at no time gave any evidence pacific to the fact that she knew that there was a scheme she knew that there was what was going on in regards to these people were being submitted medicare for purposes of defrauding them and for those reasons we asked the court would reverse her convictions and then the other issues that we have ma'am please the court for us has here on behalf of the united states and i would just like to address some of the arguments that defendants have i raised in their presentation today and st asset mr in one given that his argument as to the sufficiency of the evidence is really twofold st he argues that because he was not able to give a medical diagnosis he cannot to fraud in medicare and that of course overlooks the fact that there is testimony at trial that his job as a license vocational nevers was to visit the patients and to report back when the patients were no longer in the care or of care was not accomplishing its goals it over also overlooks the fact that one did not need to be a doctor and order to know that these patients were not home bound i think the jury could tell that from the patients who themselves testified about walking two miles a day taking care of great grandchildren mowen the law and driving cars visiting their primary care physicians at their primary care physicians offices he also argues that the lack of direct testimony means that he could not have been convicted but that argument overlooks his own admissions he admitted that he agreed with patients that in return for more pay per patient visit that he would do whatever she wanted him to do and he admitted that he lied about the amount of time that he spent with patients in order to be able to bill medicare more now he argues in his reply services that he would have been spending fifty minutes with a patient but because all he was doing was checking the vital signs which is not something for which medicare pays for home health services only spending fifteen minutes during check in vital signs of the patients that he was not in be which you certainly it was as i understand ms davis in that case was an accountant she was not a medical professional and so she was not charged with visiting the patients and actually provid of position of trust to heat mr one who made it how professional discretion as a licensed medical professional professional to visit the patients provide them with care and report back to his supervisors that they no longer needed  discretion standard i think our position is that as to me initial question of what is the standard or review then he would have had an opportunity to object at the point at which he has been asked to sign the document and he signed the document without objecting to it but if one is whether or not it's an abuse of discretion i think the argument is that that presentation to him of the written document means that he had an opportunity to object which means that it's under plain air review and i'm not aware of a case in which this court has found a conflict between the oral pronouncement and the written judgment where the defendant on the day of sentencing was given a written document and so under the plane ever standard of review thus i think the answer to that would be it depends on who bears the burden of showing that the issue has been preserved and i think as a pet what he would bear that burden but i will admit that i'm not thinking of a particular case that would establish that and that's just sort of a logical i'm not i think and i think if there had not been the written document as you can see from our position with respect to ms without the written documents we would not have we would have confessed error on this issue and agree that it should go back patients need services and he may have some argument on the very surface of those documents but i've encouraged the court to actually look at those documents and go through them because you'll see that they were i'm changing over time the documents that he signed for patients s s and ls for example said that they had started to receive services in two thousand and ten on the documents he was signing and were still receiving services for many years later with treatment goals being such as learning how to identify high sodium foods there was identical information not just across time for particular patients but across particular patients at seven hundred and fifty six and fifty seven of the record in the trial transcript there's a discussion of telephone orders for ls and access where they're given identical treatment plans on identical dates that the treatment plans were also very similar not just for the married couple but for patient b age many of the os the same information that's contained in the forms for ls and s s contain for b h they all had to the treatment plan one of the goals of the treatment plan was to get them to identify high sodium foods for example so even on their face those documents should have been obvious that the as they were not accurately reflecting the patient's condition or that the patients did not need a home health care services the telephone water orders were also false on their face mr robin that himself admitted that he knew that almost all of boomer's patients were coming from home health care agencies not the other way around and the telephone orders were created to give the impression that it was boomer through mr chairman mr chamberlain and dr rabin that was reaching out to the home health agency in order to get services for their patients and he knew that that was not true but in any event the evidence of his deliberate ignorance was overwhelming  fraud in the industry but specific to this case he also agreed to be the owner of boomer home health as it's on paper only for a legal requirement and he agreed to be the supervisor of shawn chamberlain even though he himself only viewed himself as a hired hand he also purposefully contrived to avoid learning of any fraud even though his job as the doctor was to be the gatekeeper of the patients care he was required to always be available by phone when his physician's assistant was visiting the patient he never visited the patients or read their files he rarely asked questions mr chamberlain testified towards the end he never asked any questions of place about the plan forty five and he continued to find out to sign forms when he was in inpatient treatment and could was not available by phone to consult with mr chamberlain also even argues that she was essentially an office admin but that's not what the evidence shows the evidence shows that she was the director of nursing she was into two separate checks one was for functioning as the director of nursing responsible for all the nurses underneath her of and the other one was for doing the oasis assessments necessary in order to be able to bill medicare for home health services again i would encourage the court to actually look at some of the medical files here that we have  face that indicated that the referral was coming from the doctor when in fact it was coming from timely all of this is evident from this evidence the jury could of course reasonably infer that ms it went through knew exactly what she was doing him that he raised this issue with patients patients over reggie and yet she continued to fill out forms for patients never having visited them in her own words just transposing data from one form to another that was more than sufficient evidence if you could just give an opinion as to why you think the jury convicted don't want him with it on the other you know when you're when you're convicted on one and acquitted on another sort of a two edged sword or you can argue both ways well that chills of the careful jury  honor has referred to the case law this court's case in thomas the supreme court case and powell saying that you can't read anything into inconsistent verdicts but i do think that there are two possible two possible things that were going on just having read the record  may have been under the impression that it was required to find some direct evidence of an agreement that evidence for dr robi neck him primarily in the form of the testimony from shawn chamberlain who testified that dr robi not knew exactly what he was doing and that he  ed to become the owner of rumor on paper only for mr and one that evidence probably came in the form of his own admissions that he agreed with patients overeducated to do whatever she wanted and in return for more money and that he knew he was lying about the amount of her that he lied about the amount of times that patients to the medicare more there's not a similar piece of direct evidence of agreement for this over mr black broom and so it's possible that the jury thought that that was the piece of evidence they needed of course a jury does not mean direct evidence of conspiracy in order to convict they can convict based on a concert of action but if they're mistaken about that that might explain it if the court has no the government's an expert witness to testify that a lot of license vacationers is the one who goes that sees the patient much more regular basis it would be his or her responsibility to report back to his case major anything that would indicate the patient is kno on top of that there's testimony as i mentioned earlier from the government's expert witness that the forty four maybe forty five of the playing of care those were the marching orders for mr unknown in the marching orders activities permitted from b age were up to tolerate so if for instance b h was out walking around with our arthritis it was fine according to the doctors in the ori so there is nothing out skilled nursing to assess and evaluate low body systems and perform vital signs that we visit so it's not surprising that mr no one boom went out there and was weighing the patients and taking their temperature on each for these reasons and all the reasons that we stated earlier for those staying in the brief there's just simply insufficient evidence to convict mr non boom for conspiracy