and the profiling evidence now it's interesting to see the how the claim that evidence is modus operandi testimony comes together with whether or not it may see things like for example counter surveillance where somebody is driving in a particular way and they understand that that's actually a criminal method and it's something that could be helpful to a jury and in those instances it's permissible  but then there are other things where essentially it's things that may be a a reason to investigate and that's something that often times it will come in a description of we have these things that are red flags and and then you have the experts say look these are the red flags a b and c and then you  and inappropriate one was where the agent coons testified that it's very rare for durable medical equipment every two months and and that's and so he's basically saying look this is the profile of a legitimate company and this does not fit the profile of a legitimate company therefore it's fraudulent and and the reason that that is so important and why it's improper is that mr garbuz company  sold many more than one a month and it was somewhere around five a month and this is something where the jury could have said well look  somebody who specializes in fraud in fraud investigation he should know and he's said that these are all or this is a red flag and that a legitimate company would not be selling that many but you have to ask yourself what what's his basis for that the whole reason for allowing modus operandi testimony is because that agent knows about how the particular crimes are committed is where he's talking about in terms of the numbers of of power wheelchair is sold by a legitimate durable commit company what is the basis for that information it's not his experience income of destination because e and so even though he talked about what the claims data would look like for legitimate company he's never looked at the claims data for a legitimate company and he said that and that's that's what makes  this i think easier you know in terms of figuring out what's the distinction between modus operandi and profile it's much easier in this instance because he's talking about stuff that it's nonsense and not based upon any reliable type of method he's talking about look i've i've talked to some power durable medical equipment suppliers but when you actually drill down into what he actually knew it was he visited three different suppliers two of them were specialty shops that would have had power with sears and one and so basically he just looking at that one he's taking that profile of what it would just emit supplier looks like and what they would have and then saying well because mr garbuz company didn't have that that it's that it's that it's fraudulent and especially given the way that it was offered in this case if you look at the way that the government kind of tied this all together in their opening is the government said you're also going to hear from a federal agent who's going to explain how all these health hit health care fraud typically works then list  number of factors and then it says all are typical of health care fraud and the evidence will show all of these things the defense did so there's the saying look agents going to say you know what characteristics of fraud or a b c indeed and the evidence are going to prove a b c indeed and then in closing argument that the government says you heard from special agent coons about all this stuff that we've just been talking about everything you've heard over the past two weeks now all of those are red flags of medicare fraud schemes and and then further on in the closing argument they say the government argues now you heard during the trial from the emmy fraud schemes typically work the also told you about how legitimate d m v process is supposed to work let's talk about that and then they talk about the various things you know they're supposed to have their the way their claims data supposed to look they should have a wide variety but again he's never looked at this claims that in this you know he's talking about it's not within his expertise is not the type of thing that falls within modus operandi  that this very issue of the profiling evidence we also put the issue of the hearsay issue and in she sat through both trials and in particular this trial and her feeling  or her finding was that she believed that this evidence was so key to tying together the pieces of the government's case particularly in the absence you know many times in a case like this you'd actually have some proof of of fraud maybe somebody made some kind of statement to some somebody or you have some kind of insider who says something or you have the fact the evidence of payment for other prescription you don't have that here and what judge g said was that she believed that without that testimony that it was essential to the government's case and so i would say that that regularly so seldom remember you heard that from special agent koontz that's the key piece of evidence and they're saying you know that that number of wheelchairs sold and there's any saying we that because that's a separate execution they're complete in two thousand and eight and so therefore the letters in two thousand and nine were not admissible the way the government argued it was saying well the indictment talked about going into two thousand and nine is not admissible but even if it were just the fact that there's this letter would not be sufficient and so because there's a danger that it could be misused and it was in fact referenced in closing  that and it would be hard for the jurors to kavin that off and it's not their limiting instruction given that there was a limiting instruction but also argued that it's relevant to knowledge because after receiving the letters the scheme continued in the same manner well but no on the use of discretion i think you have a tough time and that argument well the the thing is it really is prejudicial is that testimony came out that ninety four percent or so into the year two thousand and thirteen it was some something in the ninety percent medicare it basically said that the power wheelchair it's fraudulent it's just a quick question so so the letters came in two thousand and nine right correct but the requests for payments were made before two thousand and nine well while the claim was submitted but they didn't receive it was turn to the issue of restitution and one of our arguments in that respect is that since there is no evidence that miss on the ozzie smith committed fraud in respect to any of these counts that's the judge's imposition of restitution without focusing he smith's specific conduct because the resolution statute requires the court to focus on a person directly harmed by the defendant's criminal conduct in the course of history this is a scheme right yes but nonetheless i'm sorry i didn't the ob the statute requires the judge to focus on the defendant's conduct so in this case we're arguing that the the court should have looked to what miss on the ozzie smith actually did what claims to that she submitted or fraudulent what  did she actually do that harmed one of the victims and we're arguing that the court was required to do that analysis as the statute requires in terms of imposing restitution rather than in closing imposing brank blanket restitution across the board and that judge called have  well that's right we attacked in the briefs we attacked the restitution on various grounds first that it certainly was beyond the counts of conviction it was also beyond the statute of limitations and we argued that restitution you don't should be precluded for executions which are beyond the statue limitations so there were a number of different challenges to restitution i also you aware of any case whether from our circuit or anywhere in the country that basically says imposing restitution for conduct cause beyond the statute of limitations is not permissible i couldn't find a case in this context your honor no i wanted to focus briefly and reserving some time for a battle on the fact that there was insufficient evidence to support smith's conviction the government was required to prove that she acted with knowledge that her conduct was unlawful beyond a reasonable doubt they were required to prove that she acted with the intent to cheat or deceive and that she knew in fact that the claims were fraudulent the evidence shows that on the c c auto she had her own accounting firm she had her family and the evidence to savage her up her act her involvement in the billing was very limited she only billed in two thousand and seven she only had eleven billings for p w c s she only conducted three deliveries and each one of those had a completed health assessment form the evidence of that i t c had prescriptions valid prescriptions for wheelchairs they purchased wheelchairs they delivered wheelchairs there were no complaints and therefore there was no basis for returned a medicare payment because of an overpayment letter she contacted medicare since a porting documentation to justify the claim and medicare then reversed the overpayment letter and returned the funds therefore there was no evidence that she was on notice let alone that she knew that the claims submitted by i t c were not medically necessary and that the the p w c's were not delivered and since i only have two minutes left i want to reserve time for rebuttal and was there any questions no thank you thank you and your honor i could not find a case in this context a case i think out of the eleventh circuit but goes the opposite way that says that imposing a loss outside the statute is permi sexpot nations for their conduct the jury heard this evidence and returned guilty verdicts the jury also heard evidence that for instance the defendants did billings for power wheelchairs to medicare before prescription dates billings to power wheelchairs billings for power wheelchairs before delivery deliveries of power wheelchairs before per script days this is the evidence that the jury heard as to defend jury also heard evidence that defendant i mean as the smith picked up or scription directly from one of the dirty medical clinics that was introduced into evidence the jury heard evidence that if an army as the smith picked up prescriptions from the advanced medical clinic on woodman avenue in van nuys this this particular medical clinic was the same medical clinic that wrote the prescriptions for all five count beneficiaries all five company fisheries who had prescriptions from dr matthew could here's who testified at trial and testified that his clinic was essentially a power wheelchair prescription no defendant i mean as the smith personally picked up prescriptions from that clinic the jury also heard evidence of the extraordinarily large cash withdrawals being made from the defendant's accounts the jury heard defendant's own forensic accountant unable to explain all of these monumentally large cast withdrawals the jury saw twenty four examples of identical word for word font typeset progress notes throughout the patient files eleven instances of couples built of for power wheelchairs couples married couples built for power wheelchair some of them the same time in the same day by the same doctor in fact two of the five company official is referred to in the briefing as c g n h g which are clementine and health to birth to again they both got power wheelchairs on the same day from the same doctor and both of them walked into court both of them testified that they never got a home assessment performed at their house never visited the defendant's company i t c and to the point raised by defense counsel just a moment ago that defendant on this is smith performed home assessments the jury heard from beneficiaries j g and j jose all and  founder she was the billing she did the billings she was herself a certified public accountant she was squarely in the middle of all of this as well as defendant barbara who did the billings and the deliveries for all five counts of fisheries and who would have seen just as the jury did the beneficiaries who testified walk into court the evidence in this case was more than sufficient for the jury to infer the defense knew exactly what they were doing this was a fraud it was a fraud plain and to trial after a significant amount of pretrial litigation supplemental notices and special agent kids testified to the permissible methods and techniques the business operation of a fraudulent a really sharp contrast to the modus operandi testimony in this case united states versus wells recent decision that dealt with a double homicide up at the coast guard station in kodiak alaska and in that case the government presented testimony of a forensic psychologist who talked about some of the classic profile testimony the particular type of person that commits a particular type of crime in that case of course the particular type of person that commits workplace violence or a homicide and then the government argued in that case that the defendant's characteristics of married up perfectly with that profile that case is totally distinct from what we have in this case special agent koontz didn't testify about the defendants didn't testify about the allegations in the indictment than testify about the investigation he was wholly separate from that case what he testified to was his long and varied experience i believe over two hundred health care fraud investigations durable medical equipment suppliers into health care fraud generally and testified to the methods and techniques the business operation of a fraudulent durable medical equipment supplier counsel raised during the opening argument the notion that fraudulent herbal medical equipment suppliers work she's legitimate durable medical equipment suppliers may only go for power wheelchairs every so often but fraudulent durable medical equipment suppliers those involved in durable medical commit fraud and very similar to the drug trafficking context the modus operandi testimony in this case talked about just those sort of but nine sort of seemingly innocuous observations that when sort of taken together can indicate the presence of criminal activity just like in the drug trafficking time text where you have for instance a drug trafficker or courier coming through an airport modus operandi testimony might talk about how that particular person or people who are engaged in those sorts of that sort of conduct might carry with them a large amount of cash might have plastic bags scales and i tuner area that has  traveling to various different locations and stay for only a short amount of time staying in their destination for only a short amount of time may have a suitcase with a false bottom and a false top those are the methods of operation the press the techniques used by a drug trafficker very different would be impermissible profile testimony where in that case some expert may talk about how particular person of a particular ethnicity from a particular origin regarding legitimate d m me businesses to say that well legitimate the me businesses wouldn't have these particular characteristics and so therefore what happened here is indicative of fraud and at the same time they're saying it's almost a foundational challenge that agent who's doesn't have the necessary expertise because his exposure to legitimate the m e s was very limited can you address that point  backdrop just as reference points and context for the jury in order to understand what is a a relatively foreign concept for i think most average jurors interactions of medicare interactions with durable medical equipment suppliers and the but more importantly special agent koonce had believe over two hundred investigations investigating health care fraud and durable not of coke whitman fraud and it's from that that he would generate the i think very fulsome experience with what a legitimate medical quitman provider does because investigating fraud and crime in that context over and over and over again you undated lee develop what i think is experience with what the proper functioning should be and  able to describe for the jury that typically speaking a durable medical equipment company would have normal store hours would have employees would have a variety of durable medical equipment and that is so they can service the patients has described how there is a need for medicare beneficiaries once they receive a prescription to go to the power wheelchair company or the durable medical clinic provider in order to be fit with a power i'll share that accommodates them that fits their particular ailments for example you wouldn't give an extra wide power wheelchair to a very slight person you wouldn't give a very narrow power wheelchair to a much larger person and to a person every beneficiary that testified testified that they never went to the defendant's company they never visited the defendant's company they just had a power wheelchair plopped down in front of the house what the beneficiaries in this case testified to was a process in which they were approached by someone who showed up out of the blue subjected them to some sort of high pressure tactic about how power wheelchairs were no longer can be offered they were then carted down to one of these dirty medical clinics where they were ostensibly given per script transfer power wheelchairs by someone who wasn't a primary care physician and to a person not any of them ever got a prescription from one of these doctors or physicians assistants but those prescriptions showed up in the patient files that the defendants used to build power wheelchairs to medicare well let me ask you a question about that though so there were five five specific  instances or occasions that were proven but there were five hundred claims rights over five hundred wheelchairs were provided right is it true that all five hundred of those folks who received these electric wheelchairs did not get what they should have had in the wheelchair that suited their particular disability four power wheelchairs that were purchased by the defendant so there was already a pretty significant discrepancy between the ones that they billed for and the ones that they actually purchased themselves in order to provide but what the government argued and what the evidence bore out at trial was that medicare beneficiaries were being provided to the extent that they ever got power wheelchairs with power wheelchairs that were medically unnecessary by medicare standards that there were power there were medicare beneficiaries in this case who had medical histories who had ailments but they did not necessarily qualify pursuant to medicare's rules of medical necessity for power wheelchairs and there was i wouldn't say that that is true as to all two hundred  forty the government's selected a wide variety of beneficiaries to put on a trial and then pointed out throughout the patient files the various different and consistencies omissions that existed so for instance in the two hundred twenty nine patient files that were billed to medicare one hundred twenty three i believe were missing the necessary home assessments the government i think put on a foursome case about the the fraud that existed throughout the patient files in the sense that i believe ninety nine percent of the patient files contained a limitation of liability form a form that suggested to them or citizen explicitly stated to the beneficiary that i believe that the power wheelchair was medically reasonable or necessary and that if medicare deny the claim they would be on the hook for four thousand dollars each so that was one hundred twenty days old you said that i think was that limitation liability forms i believe in ninety nine percent of the forms and ninety nine percent of the patients files of the two hundred forty two hundred twenty nine two hundred twenty nine and when they were asked on the stand these beneficiaries you know for one for one did anyone ever translate any of these documents for you from english into spanish and again all the beneficiaries that the jury heard from were spanish speaking they all said no and when they were all told that what these forms said that they would be on the hook for four thousand dollars if medicare restitution and pursuant to the m v ouray the defendants are on on the hook for not just what is reasonably foreseeable but the direct and proximate cause of their harm and to the extent that the defendants are now making this argument about statute of limitations or that they should only be held responsible for the executions of the fraud that's not supported by the case law it's not supported by this cluster is prudent and thompson in united states has its price th defendants are on the hook for the entire scheme and in this case after billing one point seven million dollars worth of power wheelchairs to medicare and receiving back eight hundred over eight hundred ninety seven thousand dollars worth of reimbursement that could if i could your honour's just turn in the last few minutes i have remaining to the overpayment letters the over the overpayment letters that were admitted into the into evidence as your honor judge when pointed out were the subject of a proper limiting instruction and the defendant's claim now of prejudice presumes that the jury didn't follow the court's proper limiting instruction that's an argument that is entirely unsupported by the record there is no indication of that in the record that the jury did not follow the court's limiting instructions the court instructed the jury that these particular letters this particular offense was only admitted for notice not for its truth and it was admitted for that limited non hearsay purpose the overpayment letters  not only evidence though of the defendant's knowledge and intent in engaging in the scheme but they were evidence of the overall scheme itself the defendants have again this novel argument about how the government's case should be kept into the five executions of the fraud but as the statute itself requires thirteen excuse me eight hundred states code section thirteen forty seven requires among its elements the proof of a scheme to defraud the government charges scheme that began in january two thousand and six and concluded in november of two thousand and nine and the government had to prove that scheme and the overpayment letters themselves did post date the executions but this court has routinely at its subsequent conduct evidence in united states versus benchwork in people rodriguez this court has were to leave minute that but this scheme continued even after the overpayment letters began to be received the first overpayment letter was received in may of two thousand and nine and in the government supplemental excerpt of record three patient files are included and those patients files postpaid the first overpayment letters i believe there's a patient file there from august of two thousand and nine well after the first overpayment letters received so the scheme continued despite the defendant's being on notice that medicare had real questions about their delivery and medical necessity and the  payment the patient files that post dated the the may overpayment letter had the same indicators of fraud that the government expert testified about you know i had to look back at them specifically but there again i think the all included the limitation of liability forms and it's the government's contention honor that the fraud pervaded the defendant's engagement with medicare not only because they all had these limitation of liability forms but because the defendants were involved in an overall scheme in which they were working with police during medical clinics these power wheelchair prescription mills to obtain power wheelchair prescriptions while bypassing the beneficiaries and billing these high value power wheelchairs to medicare every time with the fully loaded package of accessories without any sort of concern about the beneficiaries themselves and whether they needed this particular accessory or that particular accessory this was a scheme to defraud medicare that again was was quite successful for a good chunk of time them all right well let's pause make sure that he's still on the line and has an opportunity to hear both of your arguments wasn't offered just as backed up it was if you look to the actual closing argument after the listing of all the ways in which it doesn't fit the legitimate they were saying that this is essentially they're pointing to that as evidence of guilt and these are all the ways in which you heard from special agent keith cohen's about the red flags of health care fraud is is far is the missing home assessment if you look on your thirteen nineteen thank you your honor so i just want to focus briefly on things that the prosecutor said about mrs ms on the honest first of all you talked about billings that were before the prescription data before delivery in there was evidence that there were some will chairs that were build before the delivery date but in those cases it was there was evidence that the date that it was billed the wheelchair was sent out if the person wasn't there to receive the wheelchair or another delivery temples made and another delivery was temped it was made even though it was bil they still made numerous attempts and they succeeded in obtaining delivery in all of those cases every wheelchair that was billed was delivered so there's no evidence that that was fraud also the prosecutor said that ms ali has you smith picked up prescriptions from amc there was no evidence that she should have known that there was anything wrong with m c the government presented the testimony of dr gutierrez a yale trained physician who was head of the st johns pain management clinic he testified that he worked there for six months before he noticed that there was anything amiss there he said they were waiting rooms labs files examination rooms it looked legitimate there was no reason why she should have known that there was anything wrong there with respect to cash withdrawals there was evidence and our forensic accounts talked about this that i did see had an other business they needed cash because they had to have cashier's checks in order to bid on these are the others that other brokerages there was also you also talked about identical progress notes and couples