thank you i want to st start off by thanking the court for pointing me to represent adam burke yes the court appreciate your willingness to accept the point that i think in this case the district court erred from the beginning in a very major way and that was allowing the prosecution's theory to come forward with evidence about violation of minnesota from the conception of the indictment all the way through the presentation of evidence at the trial the government relied upon in essence proving mr burke violated a minnesota law they used that violation and that proof of violation to create materiality were materiality doesn't exist and shouldn't exist i know we've all the parties are brief the minnesota runner statute use of runners in getting patients in motor vehicle accidents and the government from the beginning from its indictment through the presentation of evidence at trial has its insisted that just the fact that you're distinction that makes a difference it's a huge distinction that makes a difference and it's a distinction that the district court glom down to during the crafting of an attempt at a curative instruction where they claim where the district court trended as a violation but that's not what sixty five dollars before or says it's not withstanding any other a law in minnesota law a insurer has a duty to pay for all reasonable medical what was our last section you're courting it's sixty five before for subdivision two a and the not withstanding language creating what i believe was the real materiality issue that should been the heart of the trial of whether or not the services mr burke provided to his patients were reasonable medical necessity that languages in sixty five b subdivision or course of division one friend b so i think this is where the court erred in one allowing evidence absent of convictions and it lets make it clear there's never been this river has never been convicted of six or nine and twelve utilizing runners and this is where the government pushed forward all of their evidence the bit bass majority of the case was solely about proving a violation of six or nine  so is it if i understand what you're saying it's that so long as the medical service is reasonable medically necessary it doesn't matter whether you use a runner it it can't i so so it can it can you put the materiality on that decision on when you say it can affect sort of the shifting materiality from the medically necessary to the medical necessity and materiality in relation to that and i don't think jane was making a hard and fast rule as much as i might wish it was that only materiality in relation to billing insurance companies relates to medical  and the reasonable of that care i don't think that's it and that doesn't make any sense there's a lot of things that can be material that jig talks about materiality and what is material to somebody but what the court did  mistake the court made in this case was by putting so much emphasis on a violation of the statute essentially told the jury and allowed the government to present evidence that a violation automatically per the it's the creation of the criminal liability but you can't enforce this subdivision nothing happens without a conviction and i limited time and i wanted to save a little bit for bottle if there's a question it's been answered otherwise i'd like to save a little time those my only question if that's your answer that's my answer very well i thank all three of you for accepting your appointments under the criminal justice act the court of prescience your willingness to serve you may proceed good morning ma'am please the court my name is kayla neck and i government failed to prove that he or the other defendants misled or sought to mislead rep west or geico about the fact that he was referring patients to bird chiropractic and moreover as mr marson mentioned the government failed to i not executed a search warrant it's likely that nobody would have ever known the documents so as a matter of as a matter of law those documents couldn't have concealed anything from the insurance companies or from anyone  exactly happens upon use of a runner but even though there are restrictions under the state law for you something certainly makes it a crime to employ a runner but the statute doesn't impose any kind of disclosure duty on someone who violates the statute to confess their own  say that claims relating to a patient who was referred by a runner in violation of the anti runner statute are not compensable they're not enforceable by the medical provider but it is my argument that that fault act is entitle to full medical expense benefits and that includes as mr marson noted all reasonable expenses for necessary medical care so to the extent the anti runner statute could be read to say that those payments are are medically necessary minnesota law requires that they be paid yes your honor and it's all depends on whether the state wants to our kid resources to prosecute the case if the state says we can't and one way is to say that it's ok if it's not material to the insurers decision whether to pay the claim because it's material to their decision whether to investigate the claim and the mail fraud statute just doesn't apply it about kind of fraud i mean that statute  suppose their position is we investigated in an effort to protect our property and if we investigate and find that something is amiss then we would have an opportunity to avoid being deprived of our natural tendency to influence the ultimate decision which is whether or not to pay the claim so you mean because one hundred percent of these people who were recruited by runners were legitimate chiropractic car well your honor i would say that it's become a man's burden to prove that had the government investigated or had the insurance companies investigated those claims that the insurance companies probably would have found some kind of fact that would prove that those cases are medically necessary and that it would predictably have led them to refuse to pay those claims well no that's under stand that's the theory and my question is why isn't that correct are you saying that one hundred percent of these people  legitimate patients or have they established that there were some percentage who were not legitimate which would support an inference that fully investigating all of them would have led to more rejections well your honor i think in this case you know it's not our burden to prove that one hundred percent of the patients who are cared for were receiving legitimate chiropractor care it's the government's burden to prove that they were not receiving chiropractic care and companies actually did investigate their claims for other reasons and in both cases they ultimately decided to pay those claims so at a minimum with respect to those two patients the insurance companies did make a determination that their care was medically n good morning may please the court my name is jennifer mccall and i represent the appellate dana kid jr i'd like to talk about the flawed jury instructions if that's ok with the court the jury instructions you know even if the court found even though the district court did find that against arguments as presented by my my co counsel here even if the court didn't abuse its discretion in failing standpoint tended to point to violation of the minnesota runner statute in one way or another and did not tend to establish that there was any chiropractic care that was given that was unnecessary medically that it became necessary and the defendant requested jury instructions that would mitigate the impact of this focus on the minnesota runner statute as the jury was deliberating and there were two areas that i focused on that my client focused on and one was a request for an instruction that clarified nondisclosure of referral fees paid  is not material if the chiropractor there provided was reasonably reasonable and necessary care for more of a motor vehicle accident and that request was denied and then the nd thing that we we objected to a jury instruction that didn't clarify that mail fraud based on an omission in the absence of an independent duty to disclose wasn't material so instructions are adequate if taken as a whole they adequately advised the jury of the essential elements of the offense as charged in the burden of the proof required by the government and it requires reversal if the failure to properly instruct was prejudicial so it's your position materiality simply goes to the medically necessary part so that that it can't be material just to the insurance companies decision whether or not to look into this figure it out wasn't there testimony that it was if if there was a runner you it was more likely that perhaps it wasn't medically necessary we wanted actually to clarify to the jury that a violation of the minnesota runner statute alone did not create a material did not create mirror material representation because it was not disclosed a violation alone w not enough so you're also making the distinction between investigation and actually the determination of it being not medically necessary  so these sort of these obviously rely on arguments that have already been presented to the court and that were briefed on these issues the big issue is that this came to the jury and there was a way to make it a way to mitigate the harm of our this focus on the minnesota runner statute so that it didn't become the jury determining if the if the defendants were guilty of violating are participating in a violation of the rather statute because that interpretation as we know from the district courts pretrial rulings would not be acceptable but the district court in those pretrial rulings seem to adopt this idea that that wouldn't happen but after our the evidence came in it came came pretty obvious that it would be very easy for a reasonable juror to misunderstand the impact of that law and so the jury instructions became incredibly important to to avoid prejudice to the defendant and i see them on a time if the court has any questions thinking we thank you for your argument this test here we'll hear from you from the government not rely on the minnesota runner statute alone in fact the jury was expressly instructed and this is that pages seven hundred and ninety nine one thousand eight hundred i have the trial transcript there expressly instructed not to decide whether or not the just worried about whether he would ultimately get paid but how much he would get paid and how quickly he would get paid and in particular i'd point the court to government exhibit fourteen which was one of the undercover videos with agent beard w black talked about how to get to ensure that he got paid more quickly and how it his patient that his payments would be more likely in the just the introductory paragraph of the nd superseding entirely improper services that's correct your honor and that was another theory at trial there are multiple theories on which the jury could have found the evidence sufficient one of course the fact that the run up payments were material which is also a payments but also from medically unnecessary services and the evidence at trial wasn't that they were all medically unnecessary wasn't the evidence were the government did not prove that every single one of the claims submitted by byock and i think there were three hundred and fifty four patients for whom he submitted claims where we had evidence of a run or payment we did not prove at trial but every single one of those claims was not medically necessary but we did prove that many of his claims beard in particular sat at his th appointment that he no longer felt any pain and he wrote that down on his form and yet he was instructed by dr burke to come in for another twelve appointments when he complained about having to come in for that number of appointments he was allowed to reduce them not because that was what was best for his treatment but rather because dr burke was crediting the fact that it impaired was going to bring in other patients for other patients testified that the services payment then they start to investigate and he said that there will be a patient depositions he said for example i don't want anything that smells like a stage accident because then you have patient depositions and it creates all kinds of problems so the doctor back in the videos is making clear that he wants to avoid investigations at a cost and the reason to avoid investigations is not just because it will delay payment but because often it would reveal that perhaps not all of the services were necessary and reduce the amount he would get  back in the end to medically necessary versus on yes you were making a broader argument which is even if everything was medically necessary just the fact of that they are not in compensable i understand that's true but i would also note that the materiality and this question is are about whether the runner payments were material and materiality does not require that the government prove that if the victim found out about this information they absolutely definitely would not have engaged in the transaction that's not the standard from an editor the standard is is this information that a reasonable person would want to know in deciding whether or not to engage in a transaction and every single and she testified that yes whether or not there was a run on payment is information that we would want to know in deciding whether or not to immediately pay out the claim or rather to investigate it and i think  entitle to for medical expense benefits that relates to the person making the the individual patients not the health care provider and that's what they are entitled to get the benefits and they could get the benefits from someone who was not paying runner runner reasonable to interpret the statute and to think that the minister or the legislature passed in the notwithstanding provision which the primary purpose of which was to ensure that insurers weren't placing preexisting that's on coverage but they of the fact that it's often easier to pay a claimant than it is to litigate whether or not the claim i have paid all of that litigation work if if in fact there is a difference between a conviction and a violation i mean conviction obviously we know how that would end up one way or the other but a violation gets to decide whether a violation occurred certainly and presumably this is unfortunately not laid out in the state case law and couldn't find very much explaining at but if you just read the language of the provision it says charges are rendered non compatible and unenforceable and i think the unenforceable is helpful there and presumably if dr buck for example had submitted a claim to one of the car insurance companies for services that he rendered and the insurance company refused to pay at the end dr burke might bring suit against the insurance company to try and obtain payment and the insurance company might material based upon the testimony of the insures that the runner payments were material though maybe the answer to this is obvious but did you did you need the runner statute to bring this case if you had the testimony that the insurance services that hour because as one insurer sad if you're injured you'll find a chiropractor you don't need around to bringing u n and it also made them concerned that perhaps the bills were inflated to cover the cost of the run up payments fifty because met then maybe they'll make forty on his mind of the cash paying patients were ordered to come in for forty visits and that's because as dr black explains on the undercover videos that's how he that's how he gets paid if they just i'm going to be here for this conversation and rocks out of the room and as omar testified at trial motion to keep your voice down he didn't want anyone to hear about the patient payments you told agent b or if anyone comes in here asking me about getting played as a patient that's it we're done and sad they're federally prosecuting people if if we find out about there were tests and he used the words federally prosecuting people that fact as wow well of course material to the insurer as one of the insur testified if they found out about payments to patients it might cause them to disclaim the entire claim which is presumably not just the request for the chiropractic services but any other claim that the a car whether or not their instructions are perfect but whether they constitute an abuse of discretion for preserved arguments are rather plainly erroneous for i'm preserved arguments and certainly the instructions here do not constitute an abuse from you in rebuttal i want to address the issue you raise judge about whether or not the insurers could rely on the fact that runners re and whether or not just they idea being older investigate runners creates materiality i think the insurance companies have misapplied it misinterpreted miss minnesota law regarding runners to create in their own mind because a runner doesn't really need services well we advertise for every service in this country all medical care is advertised you can't drive down a freeway without seeing a hospital saying we're the best trauma center in the region that doesn't mean the hospitals overcharging patients to recoup that advertising capital and that's the same thing that happens here that's not a material issue and then and then i want to take issue with whether or not there were patients who the government percent patients who didn't receive necessary medical treatment yes we heard from patients who said the treatment hurts that's not uncommon people go into the doctor and don't like to see their doctor we go to the dentist and have teeth pulled it hurts that's part of medical practice the government also pointed to that there one witness a zero who testified she didn't receive certain manipulations there was testimony from dr phil troy and from dr burke and which was documented in the soap notes providing that patient with the medical treatment that the patient said i didn't receive it was done in a different matter because she hurt because they couldn't do the the physical manipulations that she was perhaps expecting they used a device that was all allowable to be built that the point here is here is that there was actually very little evidence in the overall scope of of this record talking about whether or not dr burke in his clinic provided adequate care instead the little bits and pieces of a lot of that don't have a fair reading in front of this jury because this jury was overwhelmed with the use of runner and the violation of  ok very well