my name is samantha kiran and i represent can read card now this appeal raises a number of different issues obviously and so with the court's permission i'd like to start by talking about the sufficiency issues that were raised in the briefs and then move on to the restitution and sentencing errors this case is unique for a couple of very important reasons first of all it's just a kickback case there's no medicare fraud involved in this case which is a common thread among a lot of the cases that were cited in the briefing these two things often go hand in hand this case was just about financial incentives and kickbacks it's also unique because it involved not only a lack of evidence showing that miss rijkaard knew and intended to be doing something unlawful when she was receiving commissions but there is affirmative evidence in the record showing that she believed that her conduct was completely lost all and not improper and actually the norm for the industry three things are clear from the record in this case first throughout the time that she was working for progressive this record never hid the nature of her compensation and she freely spoke about how she was being paid by progressive second the people she actually worked with also seem to think that day that this was a completely normal payment structure  instructed that it had to find willfulness the obstruction is a clean one and good then then cross examination is you're just saying of canal and hopkins elicited that they didn't think it was unlawful right then in closing argument trial counsel was able to say there's no rule here remember there's and emphatically saying to the jury the government didn't look into her computers didn't show the cheat every looked at the right so the whole issue of see enter state of mind was squarely presented to believe that it was preserved by the defense counsel when they raised their objection and i believe that you know the inference is that had to be found specifically by the court in order to get that through in the jury charge i may be wrong the record believe it's necessarily an aggregate i think that the sufficiency argument stands alone that there was a lack of evidence of knowledge and wilfulness but i think in considering ok well how did all of these jurors then come to this conclusion you know how are we supposed to find that no rational juror could found this beyond reasonable doubt i think those evidentiary errors in the jury instruction error is what allowed that to happen i think that kind of explains why that result came the way it does to the fore for be a limiting instruction was given as to proper use of force for b or do you it wasn't there was a limiting instruction provided right and but i think that nevertheless the information that came through there and you know this is some of the information i highlighted in the brief about joe haines and about other players and just generally about  cards you know professionalism and that kind of testimony it was all extremely prejudicial and made it seem you know it basically painted her in a very poor light which was not related to actually any knowledge or willfulness as far as receiving commissions for patient referrals or any knowledge that was something unlawful remember your so i guess regarding that evidence that miss rijkaard was just completely open during the time she was at progressive about her payment structure and we obviously have the fact that she that every single witness that worked with her testified that she brought di dio per patient referrals to them or she just openly told them i miss hopkins who she worked with since two thousand and six said she openly talked about getting pay per patient m way and she was being paid in check form not cash form she even declared progressive as for employer on a loan application so all of this evidence actually shows that she was not trying to hide anything and she was not trying to be covertly did also hear that then she denied it to the agent now you may say well there wasn't crabber a she didn't take notes she didn't record it but that only goes to the weight of and their verdict as to her later denying when federal judge when federal officers inquire right i think with regard to the false statement allegations i mean obviously for the reasons that were talked about in the police you know our position is that the evidence that there was even a false statement made was very tenuous and that conviction should stand but even setting out aside even if we assume that she intentionally lied at this interview it was over two years later after the fact it was after numerous people had been indicted on kickback charges and it was in this context where it can't possibly show evidence of w time it would be different and you know some of the cases that were cited to show ok will you know testimony about our evidence of lying to agents can be evidence of a guilty conscience do you make any argument that the statement should have been corroborated in some our making that whole i think that the ruling that we would be looking for it wouldn't be as broad as you know without evidence of crime racialist can't be sufficient on its own i think the problem here is that the testimony itself and the evidence itself there was a there was a problem about his actual recollection and there was you know a lack of recollection as to when the report was even written so this is just uncertainty is built upon each other and asking  circumstance which i think that would be appropriate in order to meet the mens rea requirement and the elements of that false statement and so yeah so taking it back a little bit to the sufficiency for the knowledge of the kickbacks i mean that's where the false statements come tied in but if this had been a false statement where she had sad oh yes i was receiving pension commissions at progressive and i knew it was unlawful which is actually the case in a lot of these other cases that were cited in the briefing that would be one thing but here she didn't speak about her knowledge at the time of her work at progressive should say anything to suggest what her mental state was at that time and so to say that two years later when she makes a general denial o something that happened two years prior and when she even makes a critical statement saying she doesn't quite remember what her payment structure was at that can't possibly be sufficient on its own especially in light of all the affirmative evidence that she never had or structure while she was at progressive these convictions generally apply to professionals in management structure and therefore they have more knowledge than a joke to case was the codefendant terry order in a similar situation to your corner so the interesting thing about that case is that the court and i believe judge dennis was on this opinion the court actually hinged its determination in its holding on the fact that quarter had received advanced training on confidentiality while working at the hospital horder was responsible for the billings and for the university and so that included medicare buildings for the associated hospital and so as part of that responsibility and as part of the fact that there was not the position because she was that's the distinguishing feature there is that there is evidence both at access to data and to the the training and so i guess shifting over to restitution and sentencing i think that here it is a clear case that the district court didn't apply the correct calculations to either the restitution calculation or the sentencing guidelines with respect to sentencing guidelines we're looking at are this improper benefit conferred enhancement and the case law is clear that proving enhanced means as the burden of the government there that responsible ones for brain for the evidence to show what that an enhancement justified and it's the court's responsibility to ensure that the guidelines are calculated properly and the government again has to provide them up into do that here the court was required to apply this net value calculation and the government had to give them evidence to do so and they didn't they only provided evidence of a portion of the analysis this estimate of money that medicare pa progressive and so for that for that reason there was not a prominence of the evidence to show that the sentencing enhanced was justified and the court should have held the government to its burden and denied the enhancement because they failed to prove it  up the government does talk about burden shifting and just briefly i'll say that the his side doesn't support your position on it proper benefit is there should have been an offset deduction vacate remained for that but your position on restitution is there is no loss at all right and the best case for that is the best case for the restitution being no lawyer is probably mahmood i would say my mind is the best case because in that case they actually looked at the services or pride that was actually a fraud case where there was evidence of a coding and up billing and that medicare was paying out more than they were supposed to pay and even in that case the court looked at it and said just because some of these charges were fraudulent and you know were not losses to medicare doesn't mean all of them were and the courtly man didn't require a recalculation of that restitution and that's a case involving actual fraud where there's evidence that there's illegitimacy and services are being provided or medicare is being overcharged here there was no evidence and there was no factual findings that there was any kind of illegitimate service that progressive was you know up coding bells or billing for services that weren't provided or doing anything to defraud medicare and so that's why the position is that there really was no evidence in the record that any restitution should have been ordered the government contends we only review for plain error here i guess when you look at the sentencing you didn't improper benefits ok for improper benefit again you know the problem here is that and counsel objected and said look there's no evidence that this was the amount of money that went to progressive and so there was an objection to this calculation generally and it's a calculation that wasn't brought up until after all the trial of events have been produced and the p s r was submitted but counsel brought that up at the sentencing hearing and the court basically just accepted this as somewhat of medicare now the government has said well you know than it was your burden to come back with us with their costs but in those cases that are cited that talk about ok will you know the defense has it come up and tell us why something else has to be deducted those are always start from a baseline where there is a net value calculation the government has already said here's what we believe the benefit was that went to this company and then it's the defense that says well what about the bonuses that were paid out those should be direct costs this is a different scenario because there was no analysis and in fact the government has the financial records and have them to be able to do that analysis they were working with making diaz they had the financial records of progresses it was within their power to make that calculation provide that evidence and the government or the district court didn't hold them to that burden remind p s r say to be four point one commentary requires a net and we say net equals one point nine i don't recall i can check that during the government are you jack to the p s or an objection was filed to the calculation  restated one point nine right and it basically just said at one point said the government well and the p s r the final one said medicare hasn't provided us and provided us an affidavit of losses and just said the government has instead formed us that this is the last government had done but it didn't provide an independent calculation verifying that that was the proper calculation of that benefit and i believe that my time is up so if you have any more questions i'm happy to answer them thank you please the court jeremy sanders on behalf of the united states your honors the defendant kimmer card was convicted by a jury of eight separate kilts for her role in a scheme whereby she referred medicare beneficiaries to a home health agency in exchange for kick backs and then when her demands to increase her per patient referral fee were not met the defendant arranged to have the patients discharged and moved to another home health care agency without regard for their medical he that the defendant doesn't actually have to know of the existence of the anti kickback statute or know that that was the statute that she was violating rather just consistent with the general willfulness instruction that was given in this case just that her conduct was in some way it is unlawful there is a safe harbor provision under the anti kickback statute which allows for certain lawful arrangements to be made they require the sort of very specific you know requirements and it is affirmative defense which the defendant did not raise here at traffic she were soliciting business for the home care agents it was the testimony from mr diaz who owned the home health care agency was that she approached was there is no requirement to violate it but i will agree with my opponent that this was not charged as a fraud case right this was charged as a violation of the intake kickback statute what happened here was far card you know solicited or marketed the whole health care agency services to doctors or people who could prescribe she simply obtained the medicare beneficiary information from it and the administrator of seaside behavioral center who in fact what the evidence at trial showed she had a romantic relationship with and simply moved that paperwork back and forth she never did in the testimony of mr diaz as well as testimony of ms for nell where she would have to understand what sort of rubric that complaint about a kickback statute versus a traditional lawful marketing would be and i think that would go down into what is being litigated here by  colleagues on the other side which is whether there was evidence that the government introduced prove that she acted knowingly and willfully and we think there was more than sufficient evidence for the jury to infer that from the circumstances of this case namely the inherently suspicious nature of the scheme dovetail with deliberate indifference they had this record had no defense witnesses right that's correct but it's clear in opening statement from defense counsel that lack of knowledge was going to be forcefully presented so the question then for you to support the instruction is what's the best record cite to evidence where she contrived to avoid learning and it'll help me if you point to something that isn't for a for b evidence ok so first if i could just correct a statement that was made earlier i would disagree that the deliberate ignorance instruction is preserved for appeal i think it is reviewable for plain error i believe in the reply brief the appellant's all but concede that fact when the challenge was the other surroundings if there was no discussion about the fact that the defense may not have put the issue at trial which they certainly did there was no discussion about that there wasn't enough evidence at trial to sustain a two to warrant didn't do with regard to her participation in abide health care which was attend any of the marketing services or anything like that aside from that however the this court has held that the second prong of the test which is any purposeful contrivance to avoid learning of it can be established when the quote circumstances were so overwhelmingly suspicious that a defendant's failure to conduct further inquiry suggests a conscious effort to avoid incriminating knowledge and similarly suspicious behavior is sufficient to end first subjective awareness of the conduct and we've outlined the inherently suspicious nature of this the demands for higher payment or the patients would be polled the fact that they shop stem from multiple home doctors have subsequently been charged i believe that they were part of the trial they were not partly heard nothing about they there was they did not hear from them but they certainly heard about them in the fact that nikki diaz paid both of them and that was at the request of kimmer card and joe haines and then states and finally the nature of the discharge in this case to have all these patients just charged at the same time inherently suspicious because the testimony at trial would be people normally recover at different w wouldn't normally see something like that so on the deliberate ignorance i would also want to no doubt but which we talked about earlier that there was a lie to the investigator in this case and that can also show guilty knowledge so i think were  preserved for appeal which i don't think it is this was an adequate case in which the government thought it was appropriate given that it was her central defense at trial highlighted through her opening into all her cross examination questions and as well as her closing so i think it was the o pro create case to give it here and absolutely even if it were improper or we believe that it was harmless because of the evidence of actual knowledge as well i'll move on to  some of the questions that came up with regard to the sentencing before you do that you cited so as a strong case to support willfulness in that case did the defendant did miss that the defendant knew the payments re legal i think i'm trying to remember there is where the eleventh circuit that simply said that it's one of those instances that no one normally thinks there would be  believe your honor is correct on that i actually read that they could show if that's if that's correct that is completely distinguishable here she's never been certainly distinguishable what's your best case where we do have a really thin debatable if the jury was promptly you know instructed and it's a state of mind issue usually that stays with them they forcefully argue did they cross examine nodded i see all those points but i'm wondering what your closest case is for i would refer your honor to the sanzar case that's eight seventy six f third seven twenty five that was another case in which there was in that case as my opponent pointed out it was also a health care fraud case but kickbacks were also charged two important things the court there noted that wilfulness can be inferred from intent excuse me intent willfulness can be inferred from the profits that one makes out of the scheme and it also had an observation that there was the thrust of the defendant's defense in that case was that he did not know about the criminal activity but that defense was rebutted with evidence showing including that he knew patients were being cycled between inpatient and outpatient services  regular intervals which would not correspond to medical needs and we think that supports our argument here on appeal of the inherently suspicious nature of this case ports that i would also note that the turner case unpublished out of the circuit specifically refers to an instance where in an anti kickback case a defendant lies to a federal investigator about how she was paid and that that was used as evidence to support the sufficien unclear it was dated i believe in june it was dated july and whether it happened in january the previous excuse me it was either a year off because he simply got two thousand and fifteen instead of sixteen wrong or that it could have been written in july of that year so it's sort of unclear but we can see the date was not correct of course around but another words it was either six months or a year is that what you're saying i believe that's probably i mean if if i had an interview with someone and try to make notes on would run contrary to the general rule that credibility determinations in sufficiency of the evidence cases have to be resolved in favor of the jury and here they had the testimony of a special agent real as well as the you know argument for the defense that she might not have known that and the jury credited his testimony i would also point the court its case cited on our brief it's from the seventh circuit where the seventh circuit addressed very similar arguments that were being made by the defendant here untrustworthy given his reliance on his notes rather than a recording of the transcript of the interview so i think in that case the case law supports that as the district judge held the testimony of this one agent could have been  but the notes also confirmed the statements that were said whether the date of the notes you know was six months one line and in this case  determinations even of one witness are sufficient to convict and this is the test well if you're saying it is not consistent with the law you are telling us we don't have the authority to do it i think that is correct i probably should've said i would never be so brazen as to  tell the three of you in front of me oh my god you can sensing issues are very consequential from this record yes if her objection at sentencing to the one point nine amount is sufficient to preserve the benefit in the restitution issue others since your time's running out on tell you hill which was the twenty a j letter they filed plus our mahmoud make me think that it is an error to not net out so two things on that one your honor i would disagree that the challenge was preserved the defendant says in her reply brief that they that calculation failed to consider value and costs associated i would urge the court to reread the tran sensing transcript i know i had those words value impost do not appear her argument was only the unfairness in having her a tag for more lost than her codefendant was and i would and the district court specifically engaged in that discussion and said what i'm hearing is that's only going to have the transcript of the objection is this is not a case that they were saying the people of progressive that were seeking treatment didn't receive any treatment so if they did get treatment then mahmoud and hill say you've got an edit out so respectfully your honor the fact that we didn't charge a scheme of health care fraud in this case doesn't mean that there wasn't evidence in the record to show court there said by contrast if as in a case in jones which is one we cited in a brief medicare would not have paid for the services that move hospital rendered than a mood is entitled to no such credit and in fact it says the which was by kickbacks well i mean again i would ask because your time's up but but it is that would be very hard for me to accept if his plea left him with a net out of around three hundred thousand this is the man who owns the company the government continues to pay him for treatment and now the government saying well you don't need to make sure sentences cost compare but the law is crystal clear in the commentary that we have to net so to be told generally well trust us we really didn't mean to pay anything even though we're letting the guy who runs the company we paid get a non improper benefit of million nine that's just really hard for me to reconcile understandably  issue or the district court we could have come forward with such evidence but we weren't permitted to and secondly the case law may is not necessarily crystal clear in a case like this where the fraud and the it was all a little illegal argument to be reasonable for the court to draw a line saying that collaboration is necessary in order to meet that sufficiency bar i understood your previous question to be asking about admissibility which is what got me a little bit confused so i just want to clarify my position on  but also i'm addressing a couple of the cases that the government brought up in their argue i just won't draw a couple distinctions i know judge higginson you recognize that in so so that actually involved in the mission that that the defendant knew the conduct was unlawful and that they were receiving illegal kickbacks or they're paying legal kickbacks and sanjay are the cycling of patients which was uses when the elements of evidence that that would be something improper that was a case where the defendant was a doctor and the owner of a medical facility and so i think in these kinds of contacts we have to focus on who the person is and what their background is and that's what we get back to you know the distinctions about confidentiality training and why we require doctors and medical facilities to sign these enrollment applications and to acknowledge medicare's rules and to agree to comply with them the whole idea is that you know we do not want to situation where a doctor is taking money and then manipulating a patient's care in order to get some kind of financial benefit and we don't want to situation where hospitals are getting patients by paying out kickbacks to doctors to get their referrals in and in this situation we have somebody who was neither of those parties she was the person connecting them and acting as a marketer and while there are connections between her and you know supposedly she had this connection with joe haines at seaside it doesn't change the fact that she was not the responsible party who had the authority and the ability under minute medicare's rules to send patients to a facility to send a referral to send discharge patients and move them to another facility and so i just kind of want to put point that out and make that very clear i have the government's argument for sufficiency here really boils down  to you know the fact that this is quote so overwhelmingly suspicious and if that's the bar that we're going to create not basically just eviscerates the knowledge and intent requirement tiredly if we're going to say that any time there is payments involved in some kind of marketing effort when it relates to medicare patients or health care patients generally that completely lowers the bar from work congress intended congress added this requirement in two thousand and ten and they specifically did so because they wanted to make sure they were not punishing people who while they really tight arguments about did she know or didn't she right and i think again you know back to was i right when i asked did the jury send out a question about well from this are you not sure i believe i recall seeing a jury question the record i just i don't recall the specifics of what it was so i'm on the sentencing points do you want to speak to those yes with regard to the sentencing issues and you know i would just reiterate the points i raised before you know as judge hogan said you recognized you know media as you have to sign a plea agreement and he is subject to two hundred forty nine thousand dollars of restitution and that's how his guidelines were calculated and now we have the person who has no financial interest in progressive has no ownership interest who gets slammed with two million dollars after the fact after she decides to fight her charges or trial and i think that's you know aside from the legal arguments which i thought i feel like i've argued at length that just you know there's something that's patently unfair about that and i believe that when it comes restitution obviously that is only intended to provide compensation and make the victim whole when they have somehow been hurt by the conduct of the defendant and here there is no evidence of that and in fact medicare's conduct in refusing to stop paying progressive money even at the government's request which was an age of real testimony i mean that shows clearly that they don't believe to be themselves to be lost are victims that suffered any kind of loss and then when it comes to the guidelines again it's like you said you know the fact that her guidelines get knowledge that she was engaged is no objection to that is for or for b b or is that part of the for for peter i don't believe that there was any actual objection to the introduction of the tax returns but you know i mean basically that the evidence boils down to that and the false statement which you know as we've explained that was two years after the fact there was no corroboration as judge jolly noted there was also this you know to give you time to address the restitution issue thank you but during that restitution i mean i feel like the whole point is that it has to be actual losses and the courts have said this court has said that when you impose a restitution order that is above the amount it's the actual loss to the victim that is a violation the statute and not exceeds the statutory maximum and so i think this is a clear case where that occurred and so  who was there beyond the bribe some benefit yes i would i know is that apply to restitution as well i believe that the restitution the court can make the determination that there's no evidence of the actual loss in the record and vacate entirely on with respect improper benefit i think there is a basis to say that that enhancement should be removed entirely and that it should be vacated and remanded with instructions to remove the enhanced not because i think it was a good as i said as the government's burned to provide evidence god i think as a second alternative it would be a rematch to the district court to do the proper calculation and hold the government to its burden of presenting evidence to do that net value calculation and if there are any more questions