and we'll move to our next heated this morning and that is the united states again criminal appeal from a jury verdict find her guilty of ten charges of medicare fraud and related offenses in our grief we focus in particular the the government's theory as to those payments which were concededly twice a month for three thousand six hundred dollars per payment for approximately sixteen months the government's theory was that a these payments constituted six hundred dollars per patient referral fees and be therefore they were  i'm sorry just one and again i did not have the full gallery view i'm sorry it and therefore because they were six hundred dollars per patient referral fees they constituted illegal kickbacks under the medicare statute i guess was their argument consistently throughout the trial at each stage and it was also the position taken by their witnesses their witnesses  counts three through nine and the charge is the chief paid it set or a remuneration to a person to induce the referral and it doesn't specify whether it's per patient or whether it's a lump sum per month it simply asserts payments for referral of patients the statute doesn't seem to care whether it's per patient or not and i think that the evidence is pretty clear that there was sort of an estimate and expectation even if it wasn't down to the dollar and that she was actually trying to conceal what she was up to by structuring it that way so why wasn't that plenty of evidence to support the jury's verdict as charged that's i think the problem here is that the government's theory throughout the case and the testimony of their witnesses was that it didn't make a difference whether it was a lump sum or per patient referral and it was the government's theory and their evidence to which we as the defense of course responding if the government had tried this case on the theory that it doesn't make any difference whether it's a lump sum or whether it's per patient it the only thing that makes a difference is whether the payments are made with the intention of yielding patient referrals the defense would have been different because the defense in that case would  payments contravening the requirements of the medicare statute and her testimony might well have been introduced then and we might also have relied on what sometimes referred to craps a bit misleading  as the advice of counsel defense which was a litigation ask i mean certainly this distinction between per patient and lump sum does not appear in the indictment maybe from the government's opening statement but are you saying that the trial so i just i'm having trouble accepting the idea of the government was really that narrow in its approach to this well your honor if you look at the  statements from the government throughout the trial proceedings from opening statement through responding to our rule twenty nine motion to closing argument to closed in  argument was consistently that it was a per patient mode of payment and i think that perhaps the reason why they chose that approach is because they realized that their witnesses who they would be calling to testify i took the position as detail in our brief that the law does draw a distinction between per patient referral fees and flat fees for which there is some sort of implicit or maybe explicit goal of a productivity goal and it's certainly the case in many fields that there are productivity goals whether you're sick else man whether you're a lawyer working for a big firm an expected to below a certain number of hours there are certainly many areas where there are productivity goals or aspirations months that's true but under the medicare statue pay to play is not something that's acceptable you're not supposed to pay directly or indirectly any remuneration to induce patient referrals so that's there's no prohibition like that that i know of that tells big firms they can say we expect you to build two thousand five hundred hours a year whatever they say i understand but again as the as the defense we are responding to the theory braced by the government and its witnesses throughout the trial and ahead and as the this court said in the case it doesn't make a difference for these purposes whether the government might have prevailed on some other theory the legal sufficiency of the evidence must be evaluated strictly in terms of the theory that they relied upon at trial because otherwise your honor what the court's duwayne would be to affirm the legal sufficiency of the evidence and the basis of a trial to mister wakim never happened she did not have a trial where the government steering was argued to the jury and where their test their witnesses testified that it made no difference throughout if they argue the other way that it did make a difference say individual are otherwise and the fact that you try the case based on individual people the gut that doesn't make any difference well your honor  it may not make a difference if the government had chosen they at theory but having chosen a particular theory and having the defense shape its defense and be in response to the theory articulate by the government and its witnesses it seems to me that there's an element of a bait and switch or a sort of a shell game if you are putting out a theory  not say that your honor but i i think it's fair to say that particularly where as here you have rather vague language that the instructions tend to be understood by the jurors in light of the lawyers ar strategy he was shaped by the intent to respond to the theory as presented by the government and again judge canid i would refer to the bar t case where the court said and they said this in overturning the defendant's conviction on the basis of legal insufficiency they said it doesn't make a difference or some other case the court sophia victory for the united states there was overwhelming evidence in this case that the defendant paid suzy aveeno sic a tax in exchange for patient referrals multiple witnesses described the arrangement between the defendant whose primary argument which is that they were somehow misled into thinking that you were really saying six hundred dollars per patient and that you didn't prove that that you proved only that there were lump sums going back and forth the government's theory on appeal is this is the same as it was a trial which is that the defendant paid this out you know so literally in exchange for patients not that's required to violate the and seventy five dollars it's a violation to induce the referral of an individual or individuals to another for the provision of services or for the arrangement of the provision of services if the court has no other questions the government would all right thank you very much mister nick least your time had expired but we kept you busy with that you can have an extra minute if you have some concluding  if you can get yourself on  dispute that there were that these payments were in exchange for reeve referrals in the sense that there's no dispute that the purpose of these payments was to generate referrals there was a dispute as to whether as the government contended these were per patient referrals if the government had  trial relied upon the theory that they're relying on in this appeal as i indicated the defense would likely have been different in so far as it would have been relevant to the decision your honor of course the defense is in the position of responding to the legal arguments and theories that the government propounds and that was what we did and are understood in the context of the parties arguments it's not uncommon for example for what might appear on its face to be a flawed instruction to be upheld because the jurors would understood that instruction within the context of the lawyers arguments and i submit that same principle holds here all right thank you very much i think we have your argument the case is taken under