mr clooney good to see you this morning to be here are you know this is a medicare fraud case where the government had no patients they had no patients as witnesses and they had no patience for the normal judicial process for taking a from a defendant and that's what is most novel about this case well beyond anything that isn't considered in any other circuit the government introduced into this case to the jury the concept that the defendant had essentially pled guilty out of court but that it had not gone through and therefore they had to have the jury ratified and there's something fundamentally improper about that and the notion that a defensible i'm though is that there was a waiver provision and the plea agreement right there was a certainly a defective set of waivers in the plea agreement for example the primary document the document the government interview says the waiver in the plea agreement says the attached document can be used in this case or in other cases there was no attached document in fact the document didn't even exist at the time that the plea agreement was signed it is was inaccurate there was a draft it was inaccurate two weeks later there's another document that comes out it's called an agreed factual basis but the government never griese to it and again it's not a it's not like it's called a confession and i think by both of both parties in some ways but it's not like a confession and it wasn't identified to a different as a confession it was a den if i do the defendant as a cop a document that sole purpose was to be used in connection with a plea it says so in the document differences here are you had an ongoing existing litigation in that case they note that as being important it was only introduced for the case for impeachment purposes they know that as being is your argument that you can't waive it for that purpose i'm i'm saying that you can't have an extrajudicial colloquy because it destroys something more fundamental than just the ordinary rules it destroys a fun a rule that is in place in order to call create a prophylactic protection for the fundamental due process rights my way of looking at it is and the way i like that is that so there are all kinds of rules like that like the right to a jury trial you can waive that but you can waive your right to counsel you can waive all sorts of fundamental rights that are there to protect the defendant to a fair process my answer is t you can't waive them on on the eighth floor you got to come up to the eleventh floor you got up to the tenth floor and you've got to get in front of a judge and that's been the law all those rights and this is just as fundamental the government has in their brief goes so far because there is such doubt th defendant even understood what was going on because they didn't have the attachment there they want to rely on the attorney that he had for this case that had not even been filed yet and although i just realized that last evening  court decided a case earlier a couple months ago mccoy versus louisiana where they said where they finally resolved the issue that an attorney cannot as part of his strategic thinking or her strategic thinking essentially plead guilty for a defendant so that part of the government's brief that said well we didn't didn't even have to know what was going on that the lawyer can walk into the prosecutor's office and basically bargain away his rights on the plea agreement i think that's gone after mccoy in my opinion and we argue a stretch of an argument to make in our argument so that it basically comes down to again this concept of what kind of waiver and what kind of standard are we going to apply to a plea like proceeding in which plead occupants or introduce court court written documents of the document the follow up in paragraphs as this sole purpose of this document is for purposes of a plea guilty plea and then the government uses it is one thing the government throws it in even if they're using a case in chief if they throw it in a case in chief at some later point where it's george spawn to something same position but it wasn't done right the document they introduced didn't even exist at the time of the plea they come back with well under some under the restatement something of contracts you can have an interest patient of a document to come on a memorial of business agreement again and that just points up how fundamentally wrong this is this court has never adopted that sort of business transactional contract law in relation to into to please case to say we have to look for a quote affirmative indication the the waiver in enforceable for some reason and so i think that means the burdens on you to show that waivers on enforceable dick do you disagree with my reading of the case or do you read it differently no i i mean i focus on the word affirmative indication as meaning that it doesn't take much for the defendant to overcome the waiver i think that i don't i don't know that i think the government still has to establish that there was a valid waiver i think i think what the go with what the court is saying is that the attorney read literally read each provision to his client right yes but my view my view is that doesn't get any farther than if you read it himself i mean he did writ read english this is this is a client he has a college degree  discussed with him any questions he had about it he didn't have question about us and the attorney testified that there's no indication that he did not understand the waiver and again that's compared this to that's a not a mets a not a is the fundamental waiver in that's not a is a one on one explanation by the attorney and the prosecutor to the defendant of the song single point being the waiver another is the explanation the one on one waiver in that's not it was a an actual interaction where it's explained to the defendant and in that context the court says with no formative indication here we have an admission by the attorney that he never explained this and he said as i understand his testimony there would be no way that the defendant would have understand what these rules were counters he never explain these you never showed the rules to them you never talk about the rules why would the trial judge who was had the advantage of hearing the attorney testify about what did happen during the pla negotiations and had the advantage of hearing the defendant testify why wouldn't the trial judge be in the best position to make that credibility to terminations well if there had been a conflict the government go for example the case the famous case of the conflict about the right to testify in the tourney and got to go testify as i explained to him it's your decision you have the right to testify there's an actual x and the defendant has no he never told me that we don't have that here the cut the testimony and so forth relevant to this waiver decision is consistent what is what happens if you breach this agreement you lose the benefit of the agreement that's what he tells the agreement goes away so that if the attorney did affirmatively misrepresenting the client said nothing in conflict there's no conflicting evidence to resolve there's nothing to support the findings that's why the government is reached on appeal to claim that the attorney could have done it himself which again is not supported by joshi in any way joe she was a trial decision i do want to preserve my arguments on the sentencing issues particularly the last issue which is one thing to estimate but it's another thing to estimate on a theory that's never been supported by by by this court or to my knowledge any other court that that a minimal initial referral for a for a patient means that whatever would happen was that patient later on in life good morning your hours may please the court my name is alex robbins appearing on behalf of the united states to get to the last point that he raised first the government agrees that the four for jordan needs to be vacated  set forth in honey is that a defendant cannot be liable on the for purchase that you would for money that he did not personally benefit from or he did not have an ownership interest in a joint and several law billet correct and so that issue needs to be reminded to the case he cooperated with the government for two years and then he changed his mind before pleading guilty and in the course of that cooperation he did a number of things that are not at issue in this appeal that are not covered by rule fo ten even under the defendant's argument he came in for multiple meetings where he confessed to special agents to law enforcement about what he had done about kickback scheme that he had run he created two different lists one hand written and one or he put x s next to preprinted doctors names that he had done business with the cordic medicare's records he made lists of doctors that he had paid kickbacks to the government said please show us what doctors you pick it back to two he went through made a list of that he created videos with doctors where he offered to have a kickback scheme as they did in the was specifically referring to their past conduct together which a number of the doctors accepted on video and he had no innocent explanation for that so one of this this argument is even if it was error to admit the confession there was it was he was not harmed by it he wrecked your honor and i'm normally loathe the start with a harmless argument because i think we have a winning argument on the merits of this but just because my colleague i think he said at one point this is their entire case is very far from that the rule for ten issue is not even limited to the words out of his own mouth the words out of mr boy's own mouth and compass all these things i just mentioned all of which were more powerful than the three page document drafted by a lawyer that he signed  about sort of the factual finding below this judge bloom had a two day hearing in the district court where she heard from the special agent she heard from seven day two of the transcript judge bloom finds that no promises were made by the government to mr abalone in the course of the cooperation she finds quote there was no doubt that the defendant entered into both documents meaning agreements knowingly and voluntarily she says quote the court does not find credible the statement that he didn't understand certain terms in the agreement and she says quote the court finds that you mr of a boeing had full knowledge of your actions and the consequences and she had ample basis to make these findings because for over the course of the two day hearing mr l below a reputed testified to facts they were contradicted by the special agent and by his own lawyer the most sort of obvious one is he said mr  that his lawyer never discussed the guidelines last night with them his lawyer testified that he did in fact that was what mr alibi was particularly interested in that he took down the guidelines and walked through the to be one point one last amount and even on appeal on page twenty was signed before the defendant was charged with the crime and apparently before the exact document were heard to as being attached was in fact attached no it doesn't your honor because the agreement itself it refers to so even if you take out that example it covers the entire gamut of statements that could potentially be covered by her for ten i think it's worth pointing out that the going through the day two of the testimony the  his contest was repeatedly contradicted by things that the agent and his own lawyer said he denies that he ever made a list of doctors he paid kickbacks to he says he never told f b i agents that he paid kickbacks to the doctors he initially says he didn't agree to plead guilty in his plea agreement when that's paragraph one although later on cross the admits that he changed his mind and he said he didn't speak english well and was then impeached on that statement because he was married to someone who's book english for years he had  hundreds of pages i believe of text messages with various people with his coconspirators and with agents the wall in english the district court was on very solid ground finding mr w not credible and that fact was borne out throughout the trial afterwards i mean  one point in the record judge bloom this trouble always says that the government didn't produce him discovery when he was representing himself pro se and that the government simply gave him empty boxes and judge bloom says no sir i saw you last night you were pulling files out of those boxes they were not empty boxes there was ample basis for the judge certainly it was not clear air for judge bloom to find mr boyd like credibility and did know what he was doing and did knowingly and voluntarily waived his ri have the same requirement as would fire out of a a waiver of a fundamental trial right like the right to a jury trial or something that nature but if the court is willing to uphold judge bloom's finding as a factual matter it need not reach that issue  with regard to the loss of calculations even if we assume as i believe the record bears out that someone testified that ninety percent of the patients were obtained through illegal kickbacks on what basis do we find that ninety percent of the losses were also based on illegal kickbacks or fraudulently submitted you are the short answer that question is that there is no suggestion in the record that there is any systematic difference between kickback patients and on kickback patients in other words that the kickback patients in one kickback patients are equivalent then ninety percent of the number of patients is going to translate nine percent of the loss that's actually that's an astute statistical argument one could make the defense did not make that argument and they're not making it now also as a practical matter it would be unlikely that there would be nice is the magic difference between the kickback patients and then kicked by patients because mr abbott was essentially maxing out every patient as much as medicare would would get him so when physical therapy would give the maximum medicare reimbursement each patient got sixty days of physical therapy when diabetes in home treatment would give the maximum medicare reimbursement amount then they would build that so everything was at the ceiling anyway for these patients or close to it so that that there would be a difference now mr skilling as i think the argument that mr other boys make on this point is not the one your honor made it's it's a slightly different one which is as i understand his argument how do we know that maybe these patients didn't need the services anyway so they came in through kickbacks mr ask a lot of the cooperate or says ninety percent of our patients came in through kickbacks but perhaps some of these patients needed services anyway as a factual matter the medicare  those the medicare auditor who testified at trial testified that medicare won't pay reimbursement for a patient comes in as a result of kickback kickback period and so as a factual matter that's lost medicare wouldn't pay it absen any further questions we asked you were from the judgment with the exception of a limited remained for application honeycutt thank you thank you mr could you have five minutes thank you for the whether or not we was found to be a liar and his at the hearing really doesn't affect anything i think that seemed to be the principal argument he's making that the governor's making that judge found got mr blowing got up on the stand she didn't believe a thing he said and that again that doesn't really change the the problem that the government has the problem they have is they don't have they didn't they will down if they want to go four steps beyond that sonata at least nailed down do it right and then we'll have the argument about whether you can have an extrajudicial plea but they didn't do it right they simply did not they don't have the document that they want to introduce as on the grounds they wanted to do sit at now they make the argument that well he said any statements that have been made but that clearly there was no suggestion at the hearing that provision related to this factual basis so that novel argument made oral argument has nothing to do with this plea agreement has nothing to do with the hearing the hearing will rest on the theory that he agreed to this factual basis so shifting shifting theories doesn't help the government either it just illuminates the problem and again the problem is even if that lawyer had said oh yeah i did explain it to him which he said he didn't he said directly i did not explain it to him he read every provision to them i mean that's that's what the district court could have found right i understand but when you read the number for ten to a defendant he understands the number for ten that's only understands he doesn't understand anything beyond that and that's the that's the problem that's why and that's a not oh there's an explanation of what they're talking about that's what the that's what the that again this is a a narrow narrow decision and mets or not they're going three to four steps beyond it the problem is it's more than just a slippery slope this is off the slope because the effect of saying a defendant or an is a poor get a lawyer can walk into a prosecutor's office before charges are filed and agreed to plead guilty in the prosecutor's office have no plea hearing whatsoever and then that they go to go to go to a trial eventually and the police just introduced and everything about the plea is introduced and the rest of the evidence that is introduced is to and to corroborate in of the evidence the rest of the evidence is introduced again i began by saying there are no patients there's not a single patient testifies more importantly there's not a single patient who was even interviewed so that this is a very special medicare case to say that it didn't  violation on the list that's it that's their case so it is the factual basis and you can see from the arguments when they say this is our case the rest of it's going to corroborate not their entire case no that's true there was you know they had a mr testifies mr can does however cannot change the guidelines the guidelines do not rest on what mr condoleezza thinks about an ambiguous statement about what medicare allows the notion that anytime a patient has ever come into a  clinic any given to any given moment to have a treatment and that one time when they went in there was one kick back made to somebody that any other time they ever come back to that clinic at any good for the rest of their lives that they can't go to that clinic and i'm tickle theory that works out they just use these rough numbers said if anybody came in ever at any time on a on an on or on a referral even though for years their services were had nothing to do with referrals they need to change doctors whatever it doesn't matter we're still going to claim that it's a loss that's not supported by the guidelines at all but most importantly the even if the attorney had said i explained it to him even if this had been met sonata the court still should not let this happen this is never been done before if you do this then you're basically saying me that the defendant though is afforded more protection in th circumstance than when he confesses to an f b i agent and all we have is the testimony of the agent about that confession that happens all the time of at least there you have you know you have a miranda warnings usually for in custody confessions or you have a circumstance maybe not a lawyer but hear what you have is there you have a lawyer who signed the agreement with i've never again never explained it to him but what it when you have ultimately is in any event for due process purposes an unconscionable agreement the government saying in order to enter