court knows there are two main issues which predominate this appeal either one requires a reversal of the judgment and i'd like to start with the issue of the failure to prove that blue cross as the indictment name victim is a health care benefit program as defined by statute two things are undisputed the st is that with regard to every single claim in this case a blue cross served in the role of a rd party administrator of the american airlines arisa plan and the nd thing that's undisputed is that the word administrator is not found in congress's definition of health care benefit program at eighteen u s c twenty four and that's a noteworthy omission because congress knows what it administrator is congress to find ministre toure's in the year with statute congress has passed other statutes with in title eighteen that name administrators by name and so the short answer is if congress intended for rd party administrators of a risk of plans to be included in the definition of health one of the it's what's the difference i mean many many americans blue cross doesn't underwrite the benefits blue cross doesn't draft the benefits of blue cross doesn't pay for the benefits what blue cross does is it processes paperwork as frontline administrator as a service to american airlines because it's american airlines that fund the claims underwrite the claims drafts the claims and a good description of what blue cross does when a disturbing in the role of administrator is found in this court decision nitpicking difference between serving in the minutes writer and serving as i'm sure or so let me let me use an analogy in many cases a client was hire an attorney and pay the attorney's fees directly in other cases an insurance company will step in and pay for the attorney but the client will never less obviously have the benefit of the attorney's services are you saying that the client is getting legal services in the st case but not in the nd just because of the difference or no i don't think that applies necessarily to suggest that the client is not getting legal services but this is a this is a very distinct situation in the congress define what is and what is not i leaving administrators out of the definition of health care benefit program you're saying the key difference is in a traditional blue cross setting blue cross is essentially haying for the health care services excepting the risk if you will that health care will be more expensive than they and their actuaries expect whereas in a case like this it's really american airlines that is paying for any  unexpected health care costs but otherwise seems to me that in either situation blue cross provided health care just like in my law for example in either case a lawyer in the law firm are provided legal services the only difference is who's paying for it blue cross is not in a contractual relationship in any way with the plan participants where in it tells these participants this is what you're entitled to and this is what you're not entitle to and at the end of the day if a participant decides that his or her benefits were wrongly denied and seeks to sue in federal court under a recess it's not lacrosse that the participants it's american airlines so america can wait let me ask you this you you have a nother issue i think the evidence as to rocky is important to consider and we do have a brief on this but let me talk you just in terms on this st point of the statute itself is that blue cross or an agent  to the individuals who are involved in this case why doesn't that we're just in a different role then as judge shows all calls that traditional blue cross coverage but is there still a service being provided by blue cross  me remind the court of a few salient points that are in our briefs about rocky rocky was an employee of the andersen optical and hearing aid company rocky is a high school educated hearing aid fitter and dispenser rocky had no management role in the company rocky had no authority in the company rocky had no check writing ability with regard to the company and rocky was acquitted of a conspiracy and these are all important and salient facts when  assessing rocky's specific intent to defraud or lack there of a for the conduct that he was accused of as the court knows the issue of fraud the theory of fraud in this case is triggered on th submission of hearing aid claims for the american airlines plan participant and the court's decision on rule twenty nine dollars was that the mere submission of a claim constitutes an implicit representation that hearing aid are medically necessary the problem with that particularly for a fellow in rocky's position is the problem of intense because at no point anywhere in this record is there any in disha any evidence a threshold and objective criteria a number of baseline anything that would have told rocky anderson this is when a hearing aid is medically necessary this is when a hearing aid is not so without a measure of objective criteria by which rocky could say you get a hearing aid you don't this claim gets to be submitted this one doesn't it is not reasonable it's not rational to find that rocky knowingly made a fraudulent representation or that rocky acted with a specific intent to defraud and judge southwick i on this point i would point out to you you wrote an opinion for the court in two thousand and twelve in a case called united states versus patel it's already five a federal appendix seven o two in which the court made some credence to this idea of the vagueness of medical necessity at the end of the day that case is quite different than this one but in this case we do not have this we have claims being submitted by the office personnel in the same manner they've always been submitted you know is clearly different for the various grades there are three fundamental problems with finding it implied misrepresentation of mis represent of medical necessity in this case the st problem is that the term medical necessity is uncertain no one seen the understeer medical descents be met in the term context of a hearing aids the only written document in this key because it had to make it implied representation you have to have knowledge of what you're represented services that eight position exercise we could prudent clinical judgment would provide for purposes of treating it injury illness or disease that's the only doctor document we solve it term  however is not a physician he's not a medical provider he has a hearing aid fitter with a high school level education yet despite that he was approved by blue cross as a provider now when i cross examined the government's expert on that he agreed that the hearing aid figures were not medical providers and he said that the term medical necessity is used differently depending on the context rule so long as the jury was not forced to rely on just connected generalizations to a few clue tests were not medically necessary instead had some evidence to support impropriety of each claim there would be sufficient evidence for conviction compare that language to what we have here which is their own expert said it depends on the context of addition we sell it we  dish it to written document definition it doesn't apply to their expert who says it's the context blue cross eternally wasn't even sure if medical necessity was required for hearing aids while both representatives pro said oh yes claims must be better clean necessary we saw it email government exhibit sixty one in which they were confused about whether or not it apply so in a nutshell what standards he's supposed to go about who has whom who needs a hearing aid there is there are no standards for sale such as that for example they've got various tests there's nothing that says if expert testified as to you know standards if there's not a ferb standard at all there's what they want the testimony by the government's expert was as to what a certain test it should be conducted in fact the try to do the following in a list of member of test so is a hearing aid fitter with a high school education supposed to believe in from this day shall try language that industry standards required to determine medical necessity based on each and every test so your honor there is not a standards such as that there's even the statute itself says shall try and we mentioned in the brief that the there was a complaint that was the evidence said not all of the tests were conducted the state licensure board sol some of those tests were conducted some work and they dismissed the complaint and found that there was not sufficient evidence to  a violation of the hearing gates faction rules so we take a high school educated fitter who had it was governed by a board with labor which it says shall try in this particular case did even find a violation how is he supposed to know that i have to take all these tests to define medical the ceci term that its meaning depends on the context and as i mentioned in the brief to be an implied misrepresentation there has to be knowledge under said you have to submit hearing aids for purposes of medical dissent the and not quality of life for example i want to hear my granddaughter's piano concert no one ever the court bryan portugal for the united states i'd like to do three things with my argument to smart and st i would like to go through the evidence of the fraud nd i'd like to address the blue cross blue shield issue and rd i'd like to go through a tenor of the appellant's arguments and their briefs is to want to rehash the evidence and show why is that why the jury should have accepted their theories of the case of course under this court's case law that is not the standard all the  inferences and view of the evidence cuts in favor of the jury's verdict the defendants appear to want to pile their inferences in their favor and of course that is not the standard either as to medical necessity and the evidence that it was lacking one of the most important pieces of evidence at the trial was the fact that the beneficiaries the submission of their their claim forms one thousand five hundred dollars all showed or almost all showed that they had been diagnosed with since your normal hearing loss contrary to what appellant would have you believe that itself is evidence that the appellant's were aware of the medical necessity requirement why would they have included that diagnosis on the claim form but for their awareness of medical have i don't recall if the charge specifically it had a definition of medical necessity if memory serves i believe that chief judge len left that to the jury based on the expert accept the government's theory of fraud which was medical necessity and they heard extensive testimony on medical necessity they heard from the expert witness ross rose or they heard from expert witness katie price they heard from on necessity is me because we misleading could your well i think what the district court judge your honor was to leave it to the jury to accept or reject what was industry standard and what was required under the blue cross blue shield plan and the jury had ample evidence to determine that in order for a hearing aid to be medically necessary a fitter and dispenser of hearing aides had to go through a a prescribed battery of tests in order to make a determination and certainly in addition to hearing evidence of the standard of care in the industry they also excuse me your honor they heard evidence from blue cross blue shield medical director that was leslie weisberg she's one thousand four hundred and fifty five of the record and she specifically testified about government's exhibit ninety one and that was blue cross blue shield explanation of how to determine whether a hearing aid would be medically necessary and there was there's a prescribed battery of tests and the evidence was undisputed at trial that the appellant's did not use this battery of tests they used a single component of the battery of tests a single component that was described by x by the expert as a screening test for hearing it's a binary test you either pass or you don't and almost all of the the employees of american airlines who testified explained they went through that same test annually the screening exam not to check for hearing aids but a pure tone audiogram hearing check employments were made every thirty minutes there was testimony that the full battery of tests took up to forty five minutes and possibly an hour to complete if you included the patient history of the counseling the terry anderson  on cross examination went through an exercise with the prosecutor about one hundred and two dollars testings that were done at american airlines on a single day and assuming that only sixty percent of those qualified for hearing aids worked out to about ten minutes a test there's also a crucial component of the inducements that anderson optical offered to american airlines employees and their families to get them to agree to testing beneficiaries told the jury that they just one of the glasses they weren't really interested in hearing aids and indeed some of these simply never picked up their hearing  that that's what they were complimentary that was an inducement to get them to come in and get screening integrated hearing aids and in fact one of the beneficiaries testified that they were told that the hearing aids came with the glasses and they couldn't if i could turn now to the issue of the blue cross blue shield benefit plan the plain language of the statute does not require what the appellant's would  been a problem doing that judge southwick i think this was a simplicity for the indictment if american airlines had been named as the health care benefit program provider then i think the  an american airlines that last statement leaves a fair point judge southwick i'm certainly not going to dispute how you think that the case would have best been charged but i would say that the way it was charged is is supported in the plain language of the statute the statute simply requires that there be a contract and under that contract health care beneficiaries receive care there is no requirement in the plain language of the statute that the that the persons who receive caribbean privity so we have a contract the contract is between american airlines and blue cross blue shield and under their contract for blue cross blue shield to administer the plan the american airlines employees receive health care items and services when american airlines employee asks for a particular health care service who makes the is an entirely separate statutory scheme and here we're dealing with a criminal statute that takes it as a given definition of a health care benefit program and i don't there's blue cross blue shield has a network of service providers and they are making those providers available to the american airlines employees and they are fronting the costs for those services to the american airlines employees and there's no reason that the just impacted their reimbursed that doesn't take away from there being no your honor and  if you think about it even if if blue cross blue shield was not just a rd party administrator let's say they were an ordinary insurance provider the insurance provider is not literally giving services to the  the beneficiaries they're not diagnosing illnesses and handing out prescription drugs so i don't think that that makes i don't think that that makes the difference in this case st there in her brief and in his brief rocky says that the district court rejected aiding and abetting liability and i just want to clarify the district court rejected aiding and abetting liability as to terry and rocky being liable for health care fraud committed by andersen optical employees in other words the district court said there was no evidence that andersen optical employees were committing health care fraud on their own and therefore terry and rocky couldn't be liable for that healthcare fraud it's it's not my understanding reading the district court's opinion that the district court in any way indicated that terri and rocky could not be liable for aiding and abetting each other building codes and that goes back to what i was mentioning a moment before the since the nouriel hearing loss and that doesn't create a material variance would what it does is the indication of those billing codes that is the representation one part of the the misrepresentation of medical necessity as i mentioned before what is the import of including that diagnosis unless you're aware that medical necessity is a requirement and you want to deceive and certainly the expert ross rozier and i particularly want to point the court to his testimony on  testimony of katie price and she's at nine hundred and eighty seven dollars of the record she works for the licensing authority for fitters and dispensers and she testified about what tests were required in order to make g very quickly and i'm almost out of time but i don't want to let this go unanswered the email exchange between leslie weisberg and someone within blue cross blue shield there was it's been characterized as though blue cross blue shield wasn't sure that here and it's had to be medically necessary that's not correct and miss weisberg's testimony she goes through the provider agreement and the contractual requirement of medical necessity quibble with language but  if you read in her testimony at one of the government's exhibits it's clear that medical necessity is a clause applies to both hearing tests and hearing aids and specifically the e mail that they reference where it's said that medical necessity might not be required what they were talking about there your honor was the billing process when they're a bill comes in for hearing aids if they were talking about these things that are called edits which are checks of the claim before it's paid and what the internal person was telling dr weissberg was we don't have an edit to check these for medical necessity before they're paid so what she was saying was in theory we could be paying for medically unnecessary here in hades my time is almost over so i would conclude unless there are any questions i think the court for your time this is a strange time and i hope to see funded welfare benefit plan does not draft the benefits does not pay for the benefits does not bear the risk of medical call and in that case blue cross in that world was deemed not law why would those same facts why would those same circumstances why would that same relationship entitle blue cross to all of the benefits and rights of victimhood under a statute to which it is not defined in which it is not defined the nd point is this issue of medical necessity and judge southwick you were exactly right there are you know there were no standards rush holds criteria that the jury ever heard about or was instructed with regard to on the issue of medical necessity and the best that the government can do open its briefing and hearing or large human is to elevate the standard of care and bootstrap that into a fraud claims that just simply is not a specific intent to just brought there is no record evidence that rocky few would have ever know what constitutes a medically necessary hearing weren't then absorb the training that still is or obligation that they had before filling out this forms and submitting them and who fill them out whatever else but being a party to the submission of these where you say that here's what i would say your honor if there is then a distinct and operative defines between training learning how to do something and even demonstrating proficiencies in order to receive your license and being required to do it at the of being accused of intentional fraud because nearly demonstrating that you know how to do something is quite different than knowing that you have an obligation to do it or you're going to be charged with crime and what's the line over the about that is that the state look the records in which the state saw that these has worked all done and the state absolved rocky dismissed its investigation and address judge southwards question to counsel for the government the question was what evidence did the defendants have that they knew of the requirement of medical necessity and that is critical because without that knowledge you cannot have it applied misrepresentation and that's what counsel for the government gave us i think is their best case it is not much he bitching katie price she was a work for the department voices in regulation  and she basically testified in general things are required but she did what she did not do because she was not a fitter dispenser she did not was not able to testify as an expert like that what