please the court my name is ken teller and court appointed counsel for mr sanders i'm sharing time today with the counsel for mrs rose this was a three week trial twenty three witnesses ten thousand documents but i want to talk today about one witness long governor is the reason i'd like to talk about walker ramirez because of how she came to testify before the jury it is mr sanders contention why does one witness data when we look at the government's theory of the case the government took those three weeks and what they did was they pointed out all of the bad conduct and bad behavior of mr sufficiency point because i do believe the sufficiency point is the weaker of our points but i do have to address the rest of the evidence because of the harm element of the ex parte communication issue and the reason i think the harm element is met in this case is because when you look at what the other witnesses testify about how they directly connected mr sanders whether you listen to the witnesses how much credibility you gave those witnesses it was mr ramirez that told a story about having an immigration issue she said she was not allowed to work in the united states legally but she was hired to do so anyway when she brought up issues to mr rose about the things that were wrong he rated her he made her cry and then when she continued to complain she was fired why did that matter well we have to understand what the government's theory of the case was and when you look at the guns you case and this is a case  cited in the sufficiency part of the argument the court has two different scenarios to look at in how these types of claims health care fraud and wire fraud claims are proven out by the government in the  type of evidence the evidence that was relied upon by the where it was the caregivers the boots on the ground employees that were actually marking down the records filling out the records  a violation let me st address why i think the ex parte communication was a violation if if the court and the government did a very lengthy brief and really gave a good summary of the record this is a thirty on a number how many pages of the know and what we don't know are the two reasons why i think there was a violation here's what we do know on day four of the trial the government figured out was told was informed that there was a witness that was supposed to testify the next day that didn't want to testify and the government did not the government then contacted the coordinator didn't notify mr sanders counsel what ended up happening that we're piecing together from the gaps in the record is that the trial court was put in to a very unusual position and the trial judge i think did the best he could with the position he was put into by the prosecution but what happened was there around the rest of the next day no notice was given to mr sanders counsel or any defense counsel that there was an ex parte communication that had taken place with the court the night before that the witness that didn't want to testify before hand had been called into question to the trial chamber's that the trial judge had conversation with this witness and that the trial judge had decided to say some things to the witness that could be construed as possibly persuading the witness to testify when she didn't want to some of the language that the trial judge used or that he tried are and the only reason i brought up guns in your manner is to show the two different types of ways that the prosecution tries to prove these kinds of cases and when the government has tried to prove their case in this manner that took place in this case there are times where the court decides that's insufficient evidence and so blanca ramirez's testimony was crucial to the government and it knew that if the government had twenty three other witnesses i did it only mr sanders writes to make sure walker mira's showed up the next day and why did i hold and hide the information about the ex parte communication the night before the next morning nothing was said at the lunch break nothing trampling of the rights of mr sanders to make sure she testified i think i'm only an appellate lawyer i wasn't present during the trial but when i read the black and white papers the story she told was very powerful and i think that made a difference to the jury and i think that's why the government wanted hers and when those actions were imputed on the mr sanders i think it made the difference just because remember in this case there were four defendants one defendant was acquitted of all charges he was someone that was typical health care fraud case mrs rosen's position is unique the record evidence bears out that ms rowe is suffering and was at the time trial and at the time of the allen allegations alleged here in this case suffering from a debilitating excruciating disease she's suffering from spinal cancer the record evidence and testimony shows that miss rose could barely work two or three hours a day and when she did work most of the time she did the work in constant pain from her bed at home m and the mr cruise testimony are on their point it says that she transferred the money but she transferred the money not knowing that the any monies transferred were going to be the product of illegal proceeds and that's one of the elements that has to be made here to sustain the conviction we sir no sir there is a line in there she transferred the money so that the government could not see the money immediately not because they did know everything that was done in terms of financial transactions as a relates to the business and this was not something that could be here it was done at the bank transfers through checks and through transactions that could be tracked through the bank so the evidence does not show that it was her tension her intention to hide the money from the government because it was a proud of the legal proceedings but it was her intention to take the money because the money was leaving that turn because at the time because she had been noticed there perhaps some of the finances available to them would not be available so she was going to take some money for living expenses but in criminal jurisprudence we know that forfeiture proceeding but that does bring me to my next point your honor as co counsel say that with twenty four witnesses and ten thousand documents in this in this case there is not one single witness we are  there when the government prosecutes a case of this man to which twenty four dollars witnesses ten thousand dollars documents and this many days a trial nearly a month that they are putting forth their best evidence and if the record we do not help what i'm witness that can attribute any criminal intent to risk rose as a matter of fact even the special agents in this case that worst time to do the witness at trial because the one piece of evidence that the government makes a big to do about is an executive meeting a conversation here and mr cruz was a part of that meeting the  that miss rose had no input whatsoever into the into the day to day bill in activities or treatment activities of the business the doctors testified that they took their orders their direction and any instructions regarding notes or billing from dr hammy as a matter of fact dr stover testified that she noticed and discussed the inadequate of building codes with dr time and with respect to the billing on the chiropractic treatment the failure to have one on one treatment three witnesses implicate that the timing that's an interesting fact i'm sorry my time has excuse your best an interesting said that she was not going to obey the subpoena that they have her presence and she was not going to show up to testify tomorrow as scheduled and so the prosecutors began the process of  so he chose to talk to mr mears in his chambers the prosecutors were not present and he disclosed the content of that discussion the next day in a week or two every and basically he said he told voluntarily comply with the subpoena that she was already under as far as the defendant's arguments there was really no showing by them that this  they can't show any harm here now they have both talked about her marriage she testified about the shenanigans that were going on in these clinics about how the patients just showed up and worked on a treadmill used gym equipment by themselves and she also testified about how she told one patient that well ma'am i can't i can't write down that you don't want this stuff because you did it and the patient got very angry went to mr rose and he he yelled at m and upset her and she ended up quitting the job because she felt she had done anything wrong the problem with that argument for the defendants is we had a bunch of other of those technicians that testified essentially to the same thing that there was all this that no one no one physical therapy was being done the amounts of their appeal was being falsified on the claims and some of them also testified about well i spoke up and i said wait a minute these people aren't doing what they're supposed to do and they were told either by mr rose or dr jaime you know just leave him alone you know do what they just let him do what they want they're paying clients you know we don't care just feel things out according move on to  didn't put on any witnesses that stood up there and said yes you know ms road has criminal intent and this is this is why i think that as we know criminal minds heard the main argument  the part of she did apparently suffer from some kind of cancer and had some problems with mobility she may have worked at home but she was empty at the office plenty if you laid out in library all the duties that she had one of her duties your example was making sure everybody was properly licensed and qualified you know she certainly knew that there were no licensed physical theory as they as  real physical therapy if you've ever had that you know you work intensely with one therapist and they monitor everything you do and make sure you do it correctly none of that happened they basically were hiring these people off the streets some of them had worked at the gap some of them were security guards one of the worked at a funeral home they had no training whatsoever and their job was basically to do things like east jam on the know that she apparently was in on the interview of dr heim when he was hart and we know that she and mr rose met with john cruz and i think that occurred at a restaurant outside the office but she was certainly transfer when the search warrant came down this is rose called him and said get over there and then after he returned and went to meet i recalled i guess he called her after he got out of the office and told her what was going on and you know mrs rose immediately said meet us over at chase bank course and they all arrived mr and mrs rose and another employee named amanda taylor went in the back and there were actually twelve different transfers out of twelve different federal work ready business accounts amounting to almost seven hundred thousand dollars and then of course the next day d they were transferred to the pure vanity account which had been conveniently incorporated by mrs rowe it was just a few weeks earlier and of course that's the account from which the real property was that was a subject so yes judge there they did not have two doctors that i recall being involved in this you know during the conspiracy one was dr key he was an older retired military surgeon and  tremors you know several witnesses commented on that in fact one of the patients sad that you know she had it been recommended that doctor keep performing surgery on her carpal tunnel and she refused because she thought you know other some other sources she claimed had nothing to do with any of these clinics our agent meticulously through all the records and she used that recognized accounting method call as an inch she testified that there were approximately forty eight thousand dollars of the proceeds from the transfer of monies right after the search warrant was served and that under the st in st out principle the twenty seven when when the business enterprise is basically primarily really even completely a vehicle for fraud then anything that may have been pulled legitimate is considered indirect proceeds circuit and they talked about that was a case where this provider had some funds also from private insurance companies and they said that's still gross proceeds because but for the medicare fraud she would not have procedure or posture because what was that issue there was a pretrial restraint of assets and in that that's a totally different standard that that requires showing a probable cause and in a forfeit matter the standard is the preponderance basically in the case they were there were restraining some real estate that had been purchased had to just looked at all the evidence and they noted that before that before the purchase of those lots this company had experienced a huge spike in these you know government insurance they said it was ok for the district court to they are pleased to quickly just to clarify mr sanders is not conceding the sufficiency point there is thirty pages of briefing on why the evidence is insufficient in the short amount of time we have with the court i decided to focus on an issue that i thought was important and that wasn't reflected in the briefing and the reason i decided to focus on that point is because you haven't weighed in thank you your honor the only other thing i'd like to point out is m ramirez's testimony was the only testimony that gave a powerful emotional story about how the employees were treated and when the court looks at the ganja case which is a sufficiency case but shows how the government typically prue's of these cases it will see the difference of how  this position and her role in the company with respect to the policies and procedures that she was to ever hear to she did nothing wrong every witness testified that mr rose was at the top of the corporation mr sanders did the bill in and that the heinie directed the doctors there is evidence that mrs rowles conducted employee evaluations but again that's not a crime and she was concerned about profits and spending she was conservative ins in spending every business on is concerned about profits at the end of the day on some of the sufficiency questions the government answered i guess i believe i guess and i the way i address that your honor is that for the transfers to be illegal mr rose would have had to have been participating in those transfers to have money that she knew that wasn't a question