you may proceed histories peel is based on five specific issues issue number one were comments made by the government on redirect of a witness as well as for comments during closing arguments the arguments and the commentary made by the government during the closing arguments and doing redirect shifted the burden to the fence in my brief i specifically cited the five comments i made references to the transcript the first coming which was during redirect and this record sustain the objection was did he ask you anything regarding any conversations that he asked anything meaning the defense attorney during cross that is the first instance where the government shifts the burden by implying that the fence has to do something and actually has to ask anything from any of the witnesses that the government posts there after for comments were made during closing arguments or not not all of  least from my perspective mr he said he not all of the comments potentially shifted the burden for example the one about you hear from the defense attorney that you shouldn't believe these witnesses because they're all friends and they all got together how does that shift the burden that would be the second comment i forget what number it is i think is the last one during closing argument but as to that one how does that shift the look you will not hear from the friend that regards to x y and z or at from the defense attorney saying we don't know but that's not the comment the comment is now you will hear from the defendant's attorney that you shouldn't believe those witnesses because they all friends and they got together on that comment i don't i don't see a shift of a burden it may be inappropriate in some other way maybe but i don't see of that shift the burden when it's talking about an argument that the defense has made throughout trial that the coconspirator shouldn't be believed that is i would concede that that is one of the lesser comments but when taking the law as a whole all five for being in a compressed closing argument it does shift the burden altogether and that when it says you will hear from the fed through x y and z you shouldn't believe them that's fine that's argumentative however when taken as a whole with the other three comments going back to the come in they said before of they can explain where the money came from or they can explain the defense can explain about the millions of dollars that he received from the fraud when taken that together with the last comment  and the previous i said it referred to it as come in number two when taken that all as a whole they do shift the burden and yes the government they did this intentionally throughout the entire closing argument four times the judge sustained the relief three of four and gave curative instructions and i thought he is sustained each of the ones you made  one the one with respect to what had been conceded as i read it the counsel just began half a sentence you objected the judge said no go ahead the counsel finished the sentence and then you didn't object any further my did i misread that that was what i count as the third wind with respect to whether they defense counsel conceded that the companies were fraudulent remark i thought that everyone that were that were an objection was completed it had been sustained there was i believe there was one which when i referred to has come a number three the objection was overweight may well but the what you call the objection was he'd only gotten about the counsel for the government only got about five words out of his mouth so that at that point there was nothing to object to and it wasn't renewed wasn't objected again when the sentence was finished am i right about that yes ok yes that's correct and then the fourth comment that was the comment about the million dollars and how the defense cannot explain how the quarter million dollars from the scheme was obtained  in regards to the if you're honest on the for the question and move on to my next issue in regards to my next issue was the interview of juror number four this was kind of a unique issue after the jury came back when the verdict came back a juror i was wearing a t shirt that said american greet on it for us in green t shirt with bold black letters this jury during the questionnaire filled out the questionnaire and he said he had it he could be fair and impartial he had absolutely no biases and he did honestly seem like the perfect juror however after seeing this t shirt i follow the motion with the court to interview the  juror but he was journal before i did know it did no one see the jury that morning i know they deliberated the night before and i don't know what the procedure is in terms of whether the jury is gathered before they go to deliberate again the jury had no questions i had no i don't believe i did not see the jury until although you're in your brief you make a point about it was green and large and fluorescent you also presumably saw it when the jury came in i did see it when the jury came in and you didn't you know didn't ask to approach the bench or raise anything at that point i didn't really think about it you thought they might when you thought you might  that i figured i was not going to win but i don't know if he was the foreperson or not but many of it i didn't really put two and two together until i got to my office and i frankly went on the internet and  then research to show and then the show selves shirts and the theme of buying this year is to show people that you're not a sucker and this show i think the government alleges that the t shirt whatever it was was not one that was sold by the by the television show is is that in the record either way what i did the research there were selling these shirts i did the research yesterday and then now there are a spinoffs saying the same thing by other by not but not exactly the same i don't want to mislead the court and you know i don't know what people are selling on amazon dot com but  that is the issue and i i wrote in my motion and eyes that had that in my brief that we should have ironed out that issue this juror clearly had that shirt he clearly was an avid viewer of this television show which the trial and he thought well this is a trial similar to what i watch and these are going to shows defend that i'm not a sucker and i wanted to explore that after the verdict specifically because he wore that shirt did when you file how much different that be i mean you frequently i didn't do a lot of trial work which you frequently see jurors come in and you read their attitude there either smiling at you or they're smiling at the other side they're giving thumbs up one thing or another and we don't we don't generally allow you to you know examine you know who they're waving to or who they're smiling to isn't this sort of the same kind of thing well this wasn't a subtle s that needed to be explored because this was a direct comment and it's not this sure to something that needs to be purchased before hand i support a football team you can buy a teacher outside of the stadium this is something that you need to buy before hand when you filed your motion mysteries did you specify to the district court what questions you wanted to ask i did not ok i did not more the jury came back after lunch i think i found my motion by four o'clock i left the courthouse and went straight to my office in the as much legal research as i could regarding this there is three issues in regards to four for b one they admitted evidence of other crimes from other home health agencies that mr gray was involved with they  said in regards to the second issue in regards to full forby that he knew that the claims were not medically necessary and third there was an issue with an informant but named mr swards there was commentary that the comments could be interpreted as a mindset to keep a witness quiet or at least get that witness to not cooperate and so it wouldn't be for propensity purposes but to show that there were attempts made to keep the conspiracy going and to keep it from detection up to be commentary was primarily made by  who was named as paris at that point he was in spain and he said he wanted to certain things to the informant and i believe the a plant mr a simply a firm yes however the conspiracy at that point was  over let's say the cat was already out of the bag the informant had been cooperating for a long time and i think there was already one indictment in regards to the case that the uniform had worked and where everybody was already arrested so i don't really my position is that that's the conspiracy was already over this was all after the fact there was no concrete evidence of that this happened being that they just gave there please the court and you are set on the half united states with me at counsel table as one of the trial attorneys in this case the o j trial attorney beth young after a five day jury trial in which overwhelming evidence of the fence involvement in this kickback conspiracy was presented the jury found him guilty none of the errors pointed to by the fence are in fact errors let alone prejudicial i'd like to turn to the juror t shirt issue again the standard there with the interview of the juror is abuse of discretion and the defense noted that based on the questions that were actually asked during voir dire he seemed like a perfect or an under eleven it's the attorneys obligation to ask questions not the jurors obligation to read the attorney's mind and responding to questions there was only asked whether he could be fairly impartially wasn't asked what t v shows he watches or anything that would have elicited  response relating to american greed and to judge boggs point you know if we were to allow that question is there any reason you can't be fair and impartial to allow post verdict interviews for basically anything a juror smiling coming in a on things they where every once in a while and if a juror had command with you know something that was more dramatic it might have provided a reason for interview so hang the bastards  on the day that you're issuing a verdict might give you a sort of different feel about where that juror was coming from it's not the same as you know one nod or a look away or a thumbs up or something like that sure there could be a situation where the apparel worn by a juror to announce a verdict would be so clear and unequivocal as the language the eleventh circuit is using cottle that it would justify a post verdict interview it would be good cause to interview that you're here we have a t shirt that the only evidence in the record is it had the same name as a t v show that's about white collar crime the only evidence on the record is that t v shows not actually are that t shirt the specific one he was wearing is not actually sold in connection with the show so the several there's evidence in the record about that or just argument of counsel about that well it was proffered to the court by way of the prosecutor's research research that i believe  and i conducted yesterday to confirm that there is no brightly green shirt with black lettering sold in connection with the show american agreed with the district court didn't have that information it did it was in the the united states response to the argument is that by then any conspiracy had ended and one of the members of that conversation who was in another country well as a factual matter the conspiracy in the charge conspiracy had ended charge conspiracy the indictment goes to september twenty fifteen i believe this happened in june or july of twenty fifteen well it's one thing to charge it is another thing to explain why it still went on but was still going on at manager of the first tell him health care mercy was destroying evidence he was burning the kickback logs from that home health care so it's the evidence is intrinsic in the sense that it's how this conspiracy learned that they were being uncovered and how they how they how they reacted to learning that there was an informant in their mitts so i don't think that it's technically extrinsic evidence at all even if it is it as your honor pointed out it's clearly relevant to show the defendant state of mind his reaction to learning there was an informa was not oh that's strange i wasn't doing anything illegal it was to disassemble all those phones it was to communicate that to a coconspirator and it was when that coconspirator said i want to break his head to agree so it shows his consciousness of guilt shows his awareness that what he was doing was wrong which is an issue that's still being litigated on appeal did he act willfully so as an issue that was in dispute at trial and this was highly probative evidence that he was in fact acting willfully in the payment of kickbacks let me shift on one of the other issues tell me about the one common a closing that mystery court unquote can't explain this he can't explain why he got a quarter of a million dollars off this scheme why do you think that was an appropriate comment your honor the defense took the position in the i believe the second line of their opening statement that there was fraud here and while the defendant did profit immensely off it that he was just a subcontractor that he had no idea what was going on this was entirely fair response to that comment if you're going to concede that there is fraud that everyone else was paying kickbacks and knew about it that this defendant was receiving kickbacks but wasn't in on the fraud there's no reasonable explanation for that and that's all the con that was said in his opening he admitted taking kickbacks and referring patients for the no sorry he admitted that there was fraud going on at mercy and that and that he wasn't alone money from mercy and that he was involved in the front i was the contention and the point being you're not going to get a quarter million dollars off of a fraud scheme of you're not involved and that's all that comment saying it's if he's going to concede a and b that there is fraud and that other people are in on it and see that the defend it was getting paid then the follows he can explain there is no reasonable explanation other than that he's involved this is a suggestion that if you use language you know i don't mean you personally but if a prosecutor uses that sort of language is going to raise a red flag all the time all the time about burden shifting even if in this case it was proper comment in response to a defense theory floated during opening statement understood it's only my it's only my view i don't speak for my colleagues under severe thank you i guess the only other issue that i want to make clear for the court because it may not have been clear from the briefing there's the issue of the little bit of testimony that may or may not be missing from mr prez's transcript this has to do with the claims of four four b evidence so if you look at the transcript docket entry three eighty six pages ninety six ninety seven the prosecutor ms young asked mr pres how do you know where the medicare money is supposed to go for your home health care company mr pres defendant's office he came to me you out i was working at mercy based on the review of this testimony in the summary witness at the end it seems likely that mr pres in this little interval there's one question missing how did you meet the this issue was one sentence as used for as is likewise expected to testify that the ray recruited patients for other home health agencies and had been a patient recruiter since in or around at least two thousand and twelve so i don't think there's any need to rema this to the district court to flesh out the tiny bit of testimony that's missing however that testimony came in it was plainly admissible both as inextricably intertwined and for for be there's no i'm confused where you getting recollection of what the testimony was if we don't have the transcript your honor if you look at the testimony of the last witness special agent for reno he testifies he was in the courtroom he was the case agent and he's asked something to the court because he was the case agent he was there  i'm still a little confused you called it anticipated testimony by mr morris is missing her residence testimony it's missing presence testimony is there it's a tiny snippet of mr president testimony that's missing and the question and answer portion of the record that the reason i just read that question and answer from mr presents testimony that is in the record is because that's where the testimony is missing that the question and does not the answer does not follow from the question and then if you the subsequent question is you just told the jury that you discussed the price of patients there's no test that that there's a little bit of testimony missing in this it's clear from the direct but it's not there's no need to remain to the district court to recreate that test that that issue because it's a tiny snippet of testimony that really regardless of how it came in was plainly admissible and even if there were issues with the admissibility of the overwhelming evidence is there's no chance of prejudice ok there's no further questions united states respectfully asked that the court affirm the defendant's conviction  being sold by american green the spin off with that slogan which i quoted in my motion i don't make that up that was quoted in my motion i received it from the internet in regards to the missing transcript the government says that a snippet is missing the witness has paris there was a witness who was going to discuss for for be evidence regarding home health named solutions which mr arabin received some checks from and he was going to discuss how it was they met that is not in the transcript of the defense did not wri that did not make that an issue in their brief and the government sites and says that the fence that insight to that specific issue in the briefing regards to a transcript the reason why the fence did not cite t part of the transcript because it wasn't there and the defense maybe it was the fences fault look through it in the transcript i never found it and frankly didn't imagine or believe that the transcript would not be complete it was not within my realm of things to think about the trash that was not complete the government says what the testimony was how much i missing we don't we don't know the government is saying what was what happened in the trial they're saying it based on the testimony of the case agent his recollection is as good as anybody else's i think we need to go back to district his parents and it makes no mention of the solutions home health or of any other home health agencies a mystery was working within the past that the potentially worked with and there's really no commentary as to how they met at to say the story of how they met but how they met is not in the transcript and any commentary regarding solutions home health is also not in the transcript i went to the transcript and i didn't see it in the transfer that who met pereira's and mr moore a met there isn't any evidence from any other witnesses and there were a lot of moving players in this alleged scheme yes nobody test of and a lot of them dealt with each other in different subgroups nobody testified about the relationship between president or a aside from pres in regards to their relationship i don't want to mislead the court i imagine so but how they met i think the only individual who would know that know how they met the other witnesses that testified became involved in the scheme later on that was joe oliver is and his wife as well as a receptionist who worked at larkin hospital whose son prescriptions but i thought other witnesses testified that ms mary had worked at these of the agencies i don't know right now i don't imagine based on the ones that testified that there is that kind of testimony i don't again i don't want to mislead the court into affirmatively saying that there is an i want to be disingenuous of the court but i don't know that there was any other witness who would talk about how mr paris and mr near a met mr paris started this conspiracy with another individual who did not testify in the trial he might be able to testify as to how  in the district court the parties would get together and tell us is it like a page it's missing a couple questions it's evidence of four four b of my client but i cannot agree that's the bill ation because i don't know that it's in fact accurate that it's missing more or less i think it needs to be a man to district court i mean is the point that in effect they are or offering what was said so that we could judge in the district court judge how bad it was let's say is that explicable if you're contending that it was much worse  can you rely on simply the fact that the reporter messed up and didn't transcribe some portion or would you have an obligation to give us some idea of why it's much worse than what is in the record and what the government is willing to concede or the government's willing to concede that it's this issue of this home health yeah this is crucial to the actual brief because that was an issue that i that was raised so this is not a missing transcript something that has nothing to do with this case or with this brief now but nevertheless the issue is clearly raised in the sense that we've been we've been talking about is this legitimate for zero four be evidence we seem to know something about it and i would think you would at least want to assert or speculate why the missing part is much worse than what we're talking about yes no and it is more than i imagine it is more than just solutions there's no evidence of how they met which again starts the whole concern about a dispute that they met no what does it matter how they met because they met at another home health right and i thought they were somebody else that talked about them working there