we want to welcome you here this morning we have a very large docket today so we will appreciate it if you keep within our time limits and of course you probably know when the yellow like comes on you have two minutes left or possibly possibly less two minutes and then when the red light comes on you may conclude your remarks unless you're answering a question from the court we're familiar with your briefs we may not have gotten into the entire record at this point so we appreciate citations to the record where those are possible and with that we call case number fifteen two zero zero two five united states have adopted one another's briefs as to ms nine and i would like to begin with count six the conspiracy to play help us want to make an observation we don't need to get in particular if we work it out but you know it's one thing situation and that is why i argue in the facts that are unique to me is none under the sufficiency of evidence argument and in this case the government would have had to prove that ms non paid illegal kick backs to some of the patients at spectrum and here's where the district court made and with her all this evidence that she was giving out cash in on phillips i mean i think you can actually is one of the better sufficiency arguments on the health care fraud because there's nothing no direct evidence certainly that she knew about the false claims being made to medical care but it does seem like there's plenty of evidence the kickbacks for her i argue in my brief and miss nine maintains that the evidence that was brought against her on the kickback issue is unreliable the district courts say that she found the evidence reliable primarily because she believed the lawyer was ordering that the the witnesses were unreliable because of their mental conditions however the witnesses were not unreliable because of their mental conditions they were unreliable because they changed their statements based upon whether the government was asking the questions or the defense lawyers were asking th credibility if there were inconsistent statements it would be a credibility credibility issue but in this case it's more than a credibility issue because each witness about five of them brought against ms none actually change their testimony related to whether they received kickbacks from is known before they left the their testimony so it's more than just inconsistences in some cases for example no payments at all so when you look to the brief page seven to eleven we detail in the brief how those each witness actually changed their testimony not just inconsistent but actually admitted that they never received kickbacks when questioned by the defense lawyer said and you want to argue as to the overall conspiracy to cook to commit help from here the government would have had to prove that there was false claims and based upon the case law in this circuit in order for the government to prove that there were false claims that would have to be medical expert testimony here the government brought forth dr patrick triplett and yvonne lucky both of those witnesses testified that to the purpose and function of the ph safety and l c d's basically they talked about the function acute conditions that's the whole medical necessity issue which are saying that expert testimony for but putting that aside wasn't there an whole other theory supported by a lot of evidence that even if these people needed that treatment it wasn't provided i think was  mickey mouse facility basically just treating it like a day care so why wouldn't the evidence be sufficient on that regardless of whether these people actually had the medical conditions because in this case in the medical in the medical care case such as this one the statute says that it's up to the treating physician to determine which care is needed by the patient and there's no doubt wrecked all circumstantial evidence in this many ask a question another w if these people had the worst psychological conditions you can have will it still be fraud just as that charge medicare for these treatments will in fact you're sitting there watching t v all day there was only one witness in this case who said that maybe he was watching television over the weekend or so and then on cross examination he changed his testimony that he really couldn't remember as to whether that occurred or not but in terms of the dearth of the evidence in this case there was no that direct or circumstantial evidence that the treatments that were received were in a an appropriate or were not of medical necessity determined by patient and in this case the government offered evidence from the patient's them say of the testified directly that they whether they needed the treatment or didn't need the treatment or thought that their treatment was appropriate for the tend to talk to them to the court today about suppression and about the state and agent kirk of course the suppression hearing goes to the fourth amendment and what's so exciting or the reason that  c community mental health facility that was licensed by the state of texas that had over two hundred active participants patients at the time of the raid that had treated over eight hundred  participants at the time of the raid that even the judge stated that these people are mentally ill witnesses that were provided by the government in a minority community is egregious when it is done improperly state of texas has a method to terminate a c m h c the government federal government has a method i believe it founded for use see a four part four eight nine point two c to chapter four parts four hundred fourteen by this raid they shut down this hospital they did not allow the patients their files to take to another facility they did not come in and seek to clarify the matter and what did they do that on the affidavits of two disgruntled former employees one of whom at least one of whom was under dykeman working off a deal and two mentally ill patients  and it was based on and the particular zation this is based on first of all the period of time two thousand and six to the current that's all the records of  execution could be seized including documents relating to patient files bills invoices and claims for patient payment for services documents concerning the providing a peach piece services by spectrum for jodi and santorum and patient correspondence regarding they say they didn't take the drugs off but he the record is replete with the government cross examining spic particularly in regards to this defendant name from the drug dogs even if you're right that it wasn't particular enough how do you get around good faith which would say you don't apply the exclusionary rule of agents and good faith to believe a magistrate how can it be good faith to go in and take care of nearly every follow you know in a hospital proceeding how fall they presented as as what was presented the magistrate did not even include the attackers which was the reason i made a gross argument to begin with because that was the facts in that case as they didn't have the attachment but i don't patients all revolving that the patients were going to be able to get get those files back these people want one of which was in the indictment she been found mentally ill before coming to spectrum if you want you to peach piece after spect harmful error because they used this statement to create the bill liberty ignorance charge because they used it in closing arguments not once but twice yeah but i mean how could you how could your client have in ignorance i mean been convicted on that as opposed to the direct evidence as an example your he said zander or said i don't go into that i don't look for that what he did look for that is not his job he's a doctor he's got somebody else that's in charge of running the show it was his clinic was his hospital it was his cl for instance this is a group therapy he didn't do group therapy terry moore did group therapy he would give pretty good to the patients but the things they complained about the main but i am going to talk a little bit about some issues that affect more than just him pinkerton instruction that was given to the jury the problem in this case which is fairly unique is that the pinkerton instruction was given and also the aiding and abetting instruction were given and you have the issue then of whether the jury might have read the pinkerton instruction to lower the aiding and abetting intent element to foreseeable instead of something that was foreseen the story is sort of it is sort of all over the place and there's nothing really hard percent on point with this on there's a couple cases where the pink or john instruction was given but no aiding and abetting instruction was given and those were cited by the government one of them is the jimenez case which judge jones you're on that was ok neither one of those cars were hair healthcare fraud cases then you go to the inadequate aiding and abetting instruction and you have rosemont and that's the supreme court case that was decided while this case was in the trial court actually if you go look at the date the day before rosemont was issued the jury conference in this case took place two days after rosemont was issued that's when the aiding and abetting instruction was given in this case and it was inadequate it was inadequate because when they were talking about the element which require some association with the other parties talked about no knowledge not no prior knowledge and that was specifically the by also the government the problem with dishonest case for this court is it's not a published opinion so it's not presidential it also does not address the issue we're talking about here which is whether the pinkerton instruction expands the aiding and abetting liability or can't at least can be read to do so by the jury and so there really is nothing for this court to go on except for its own judgement about whether this is possible and i suggested it is because at the end of each of the conspiracy theory instructions count wanting count six the very last thing is the pinkerton instruction and then the judge is right in right into the substandard instructions for the  least one of the defendants might have been argues that the pinkerton instruction itself just viewed in isolation is iranian interest in it because it says the act needs to be committed in furtherance of the conspiracy or be for conspirator and it does seem to me that's problematic because for c abilities a linchpin of pinkerton and the defendant needs to have forseen the crime so i think part of the problem though is that was the prior pattern instructions did have that kind of language but the new ones don't so how do we deal with that that's correct well i mean there's obviously sort of president the law is now changed i will say that the president which allowed that the fifth circuit it was out they told the minority there was five other jurisdictions which said it had to be an conjunctive you had to prove both so you directly do have problems with both the ng about instruction and the pink of instruction and when you put those two in front of the judge the jury together it looks like the jury can say oh well you know if we're allowed to convict under paper ten with with if it's only forseeable and that picture joe starks or applies to counts for example to through far and then in these special instructions and two through five you have the aiding in bread and abetting instruction why would they not think that they could use that foreseeability to convict under the aiding and abetting it doesn't look like alternate  the conspiracy and then the other one was presented as a part of the main jury instructions for there was the objection phrase to that instruction i'm sorry i was the objections they did to that instruction issue of the and in the or wrist brought out so there there were several places in the record where it was discussed it was briefly discussed in the jury instruction conference although like i said before they took one day that took place one day a health care fraud case that i can find it said grant six eight three s third six thirty nine to two thousand and twelve but that case doesn't help us here because there was no challenge of anchored instruction at all was given but there was really no discussion of the propriety of it all so you have you have this possibility that the government that the jury combined the two i see my time's up i'll quit thank you ok thank you harbor defense they intended to argue this in closing the court however at the government's assistance insistence and over defendant's objections inclu paragraph at the end of the safe harbor instructions that was a mandatory conclusive presumption and that paragraph read if you find it any part of the payment to a defendant was to compensate past referrals or to induce future of perl's that portion of the payment violates the anti kickback statute and is not subject to the safe harbor defense this meets the classical definition of a mandatory conclusive presumption defined in francis versus franklin furthermore i'd like to go on and say i want to make two points one that it affected all counts against a team including the first count having to do with conspiracy to commit medicare fraud and that is for the following reasons first the primary means by which the government alleged that she committed medical conspiracy to commit medicare fraud was through th an anti kickback scheme second the government argued in closing argument that the defendants couldn't that their injury could infer from the fact that patients may have been paid that they didn't need treatment and third the us superseding indictment went back to the jury with this instruction in it i also want to argue that this is not with respect certainly to the anti kickback charges is not only reversible error it is structural or for the following reasons having to do with sullivan versus louisiana that is a case where the reasonable doubt instruction was misdescribed here at the end of safe harbor instruction we have a mandatory conclusive proof presumption that does not require the jury to find predicate facts beyond a reasonable doubt it alleviates the jury's responsible to find any element of the charge they do not have to find  do not have to find it the payment for referrals went to work for referrals for a for a government then government covered benefits none of the elements of a kickback violation were required part to be found by a reasonable doubt by this jury looking at the paragraph you're challenging is your problem that the language is that portion of the payment violates the entire kickbacks detriment of it you said if you find part of the payment to a defendant was made to compensate past reform was made to compensate past referrals then it's not subject to the safe harbor would you be ok if you just said the defense doesn't apply your honor would not be ok if that was the situation is not a correct statement that circuit law better in fact it's a matter of fact whether it was it was advertisement that was that is compensated all by medicare that induced the referrals so it's a matter of fact but the real problem i like to concentrate on is it says that portion of the payment violates the anti  differentiates a structural air they point out i'll just start with principles concurrent see part points out three things one an issue is whether the instruction resulted in or in the course of employment and it's covered by the safe harbor instruction you're guilty under this paragon our case law says we always evaluate the jury instructions as a whole and so assuming those i think it's nine words or so  problem the jury instructions clearly list each element of the entire kickback statute they say you have to have willful intent why why would we have to assume that this will override all those detailed instructions important and central element of the case the defendant scored threats and this is how it in that destroyed it completely destroyed so the real analysis is not whether the rest of the card the charge is correct it's whether there's any reasonable likelihood that the jury would have applied this statute this instruction whether the jury would have said this tells me what the law is this tells me there's been a violation of the entire kickback statute just by the fact that there is a instructed that this is a permissive inference and that they may conclude that this violates the anti car backstage there is no such instruction this is not a permissive inference this tells the jury no reasonable they don't have to find beyond a reasonable doubt they don't have to find the elements the other was  and the other element that is important to get him turning to sullivan is whether this this this charge obviated the need to find any of the elements or vitiate the jury's findings it surely did it gave them a way to make all the findings necessary to convict sentence without having to go through the elements and carefully considered that this did the job for them for the united states i'm happy to address any questions of the court has from my perspective that's why i'm here today to deal with any questions you might have one issue that came up in the one conviction that is did ms nunn know about the health care fraud and i think i would point to several features of the record that i think demonstrate she did have that knowledge one she graduated in her payments to patient so she distinguished between p h p and i o p i think that suggests a sophistication dead excuse me belies any suggestion that she was ignorant number two nine was constantly at the spectrum offices in this court has said on several occasions if you live in fraud essentially that is if you day to day exist in fraud then you you can you can you can be inferred you have knowledge of that fraud third was compatriots with mr robert who walked into court as a cooperating witness under a plea bargain of course but said but robert said everything that spectrum was doing was was false and fraudulent kickbacks falsities etc so the connection between none and roberts i would suggest is another element to the piece in terms of knowledge of the health care fraud the final piece of the puzzle to the knowledge for ms nine i would suggest is the precise matching up of the ten percent that she got in payments that matched up to the medicare billings received on the part of her patients that's a perfect symmetry i would suggest between medicare billings fraudulent medicare bill and on the one hand and on the other hand what we should and the jury can infer was her knowledge that falsities were relating to those claims but you can't have a kickback scheme which is illegal even with perfectly valid medicare claims absolutely to tie her to the falsely those claims is that right that you basically have in your view have you involved in the kickbacks her presence at the facility  i understand why the kickbacks can be evidence that you know where the fraud but it it seems your position is almost making it about anyone guilty of a kickback conspiracy is going to be guilty of a medicare fraud conspiracy and you know and i understand the distinction you're drawing i think we  hypothetical where kickbacks were paid but they had absolutely no idea there was health care fraud going on but again to me the one of the critical facts is that she's paying out different amounts to patients depending on whether or not they're in the p h p program or the i o p program to me suggests that she knew exactly what was going on p h p pays a very high rate compared to i o p and thus she graduated her kickback payments to the patients based on that distinction put that together with her constant presence at spectrum in particular there was a great deal of testimony talking about she was basically and defended he kenya's office almost twice a day checking on her patients that kind of of sort twenty four hours seven days a week present at the facility i'm i'm not sure i've seen that particular case and in fact i think i know in the eleventh circuit there's a case that goes the opposite way that suggests that what your honour's is is inferring or intimating is that no kickback alone will not get you here but again i think we had and the jury could in this highly deferential setting conclude we had the requisite knowledge on the part of none that that make any difference to the conviction of the sentence i mean i know it does to the conviction but what about to the sentence practical impact no none was convicted on both count one which was a health care fraud in count six to keep back conspiracy they were run concurrent as i recall the sentencing judgment very quickly with respect to the suggestion  that the government ran roughshod over this this community based health center in executing the warrant defense counsel made a couple references to what the government did not take actually the one a lot of talk here about pinkerton in the pinkerton instruction i may be wrong and i'd be happy to be corrected on the bottle but if you look at our way nine for seven to def seven three that was the only objection lodged with respect to the pinkerton instruction and that was an objection from defendant sam jar he said i've never seen a pinkerton instruction applied to health care fraud cases i would suggest such a long way from the discussion that we're now having about whether or not pinkerton somehow a subverts or undermines or diminishes the aiding and abetting and number one and number two whether there's use inconsistency or tension between the deliberate ignorance instruction on the one hand and the pinkerton instruction on the other so no matter what i think as as as this court looks at these questions is should be mindful of that plane air standard what about the language of the pinkerton charge which may be subject to play position i get that i'm just curious what the government thinks of as an initial matter if there was some question about the tension between deliberate ignorance and and a raise there that is that there was tension between the defendant could not be deliberate deliberately ignorant of the object of the conspiracy no also intended for the purpose and this court said no what would deliberate ignorance ask you to do is to use evidence to of conscious avoidance to include to infer knowledge i don't think that gets to the specific intent that would otherwise be required for a finding of conspiracy that is you have to willfully knowingly join the conspiracy with a specific intent to further its purpose so any way i think in particular pitch to sixty nine that decision that this court nicely addresses that perceived tension if i might law that is the referral payment does not have to be solely for the purposes of gleaning medicare patients it can it can even if it's also arguably for employment compensation you're still running a the anti kickback statute and that's davis one thirty two f thirty ten ninety four and what davis said very similar to what the defendants argued here was that it's in its quote and the rhony a statement of the law law defined the government's burden in establishing an element i would suggest it was element to the referral element number one and number two constrained as a matter of law the school of the safe harbor provision a defense those two things are what happened all the time in courtrooms in terms of matter of law instructions from the jury final point and then if there are any questions that i would suggest is a big difference from this court case on stated broadly mucking around in evidence based inferences that is factual decision making on the part of the of the jury that's not what this court did this court clarified the government's burden with respect to the element to and clarify the scope the lawful scope of that of the safe harbor and defense but reading it in isolation and i don't think it's a big problem for just that if you find that any part of the payment was a referral then it's not subject to the safe harbor but it says then the payment violates the anti kickback statue on others various elements including man's right to show isn't that violates the anti kickback statute language of problem no because of what preceded it and this court of course as earlier referenced looks at these in context you can't assume that the jury just two pages before had heard the four elements of the kickback violation including knowingly and willfully payment for medicare services and just threw that knowledge out the window when you to that final sentence of the instruction i would suggest that that was an appropriate place for that instruction because this instruction was doing double duty it was defining the scope of the government's burden with respect to element  two of the subs and a violation and additionally doing duty with respect to the scope of the defendant's lawful affirmative defense so in that respect it was i would suggest a perfect coda to the elements of the offense  sure and that's that was actually exact dialogue that went went on at the sentencing hearing the court said well look i only think there's one victim here the government written large and the court said as a result i'm going to order that any funds of team to forfeiture shall be applied to restitution sort of automatically invoking that that offset practically speaking i would say ninety nine point seven percent of cases are probably just doesn't become a problem as this court's decision and taylor talks about that is if rest if forfeiture from the a g is given to the ages given then ultimately the a g will ultimately take it over to restitution and that's that's statute twenty one u s c eight fifty three i but i also point to the eleventh circuit decision and josephs where the court was very clear that disagree or generally has no authority to offset its tenets restitution obligation by the value will forfeit property held by the it's for the igi to ultimately decide it'll probably happen i've gotten you know as as was articulated sentencing hearing a usa stood up and said this is what happens practically speaking the government's problem with this is that it's not the the district story it's that again it's a restitution to only one party which is the government well i think taylor speaks to that issue that the district court did did suggest there was only one victim but in  well fema is a distinct entity from the department of justice similarly i would suggest medicare and medicaid distinct entities from the department of justice so the sort of core premise i would suggest of the governor of the  non government become one that i don't believe doesn't talk about there but there was a individual i third party i think right private party right as i recall the facts yes i don't think that alters the analysis of whether or not when you order it it doesn't discuss that but that is a distinction it is it is but i think there's another there's another case in the seventh circuit same thing without that third party competition i think it's emerson actually  medicare fraud that we heard a month or two ago and in that case the government claimed that there were multiple victims which were the patients who were paid money to go to a clinic where nothing was done and then they were billing was submitted and these victims came under provision of the sentencing guidelines because their personal information their medicare numbers have been revealed during the course of the of the fraudulent conduct i take it the government didn't make that argument here no no sounds bizarre doesn't it just by the language of the end the  the proximate cause ation that's required in the scheme to defraud is to my mind medicare and medicaid fall sort of in that heartland i can't really speak to a factual pattern i'm not familiar with i wouldn't either if i were you program should be minister without showing that it was it in minister properly by an expert shows that the jury is listening to patients analysis of what their treatment was and watch part of a movie and then discuss it and that's proper treatment based on what was in the reports that we did meet with the patients right based on what's in the reports and and when you have a person who is mentally ill many times they say i am not mentally ill i don't have to i'm not depressed i also suffer from anxiety because they don't want to be ill they want to do themselves as being normal and so when they are explaining to a i'll have these symptoms but the medical records show these are the illnesses of this person this is how sick they are and so the difficult then he says these people are crazy ha without that expert to say the treatment that was given to this patient was wrong this treatment of watching a movie then discuss status and these patients are chronically mentally ill and they're receiving treatment for long periods of time as opposed to the you know the chris sort of the crisis mode care that i gather the p h p program e can't have a ruling on medical treatment with an expert in a civil case you can't do it and question is not precise treatment that would be like they were in when deliberate indifference and just negligence the question is were they proper participants in this water program and the the governments act were supposed to deal with you know the parameters of that you can be challenging you should have had two shots instead of one well he all he said this is how i've run my program at john hopkins this is what i do this is how are my interpretation of the rules he didn't say what was done here is improper what the government then said patience and say gone over and discussed every patient that had been treated during this multi year endeavor he could look at the patient files in the indictment he do about all the evidence that there was the patient files were fabricated they didn't actually meet with the doctors for forty five minutes there was just a change in the dates they were the same information from different patients with that testimony some there are there are corrections and fonts and that goes but that doesn't this and that does not do away with the problem of not explaining what the treatment was and that there was no medical necessity and there was fraud minutes you see him for thirty minutes receiver in our opinion was necessary to make the diagnosis some people doctors can see a patient for fifteen minutes to make an accurate diagnosis of what is the course of treatment or it may take two or three seconds before they can say what is the proper course of treatment so that raises the question how did you prove that in this type of case you need someone to hold an expert to look at some of the files look at some of the procedures and not just testimony the government suggests that what was omitted from kirk's testimony about sandy r s statements was expelled for tor evidence and serve tory explanations and denials of criminal responsibility you have to take that in the context of agent kirk used a documentary fresh memory  had no independent rubber memory of what took place like in garcia and then he then he used that document to refresh his memory but then there was no cross examination allowed to with that same document of what else was said and that's the purpose of one of sex is to say when you use one document to testify from us with a complete document to show what else is there to place the context of what was said what questions were being asked what was he answering how did they offer it together and as judge gilmore sad the portion of his testimony was the basis of the d challenge the accuracy of what was being said in the context of what is being said and what was what was happening and what the doctor sounds or was it say as he explained his program which goes to the medical assessment which goes t