my name is andy berle i represent the appellant president for food in this case this is a case that belongs in state court not federal court rather than alleging offense against the united states the indictment alleged  violation of a minnesota state law that is the minnesota state run or statute which says if a chiropractor uses a runner to get a patient he commits a felony and build submitted for treating the patient are quote and on and forcible as a matter of law and of course the indictment alleges three theories of fraud st that they committed fraud by violating the minnesota state runner statute nd they committed fraud concealing that they were using runners in violation of the minnesota state runners that you in other words because they used the runner and didn't disclose it it was a material fact rd it allege they committed fraud by using runners and therefore billing for treatment that was unnecessary and not done in other words we know it was not medically necessary because the patient obtained fire runner that's the his obvious argument the united states made in closing all three of these theories or runners but the st theory was exclusively predicated on the existence of this minnesota statute that is the prosecution could not have been brought if the statute did not exist and we know this is what the government was alleging because they admitted exactly this in the government's response to our motions to dismiss the indictment the government said and i'm quoting as alleged in the indictment the claims were fraudulent for multiple reasons at the most basic level they were fraudulent because they were the product of runner payments and were  therefore quote non compensable and unforeseeable as a matter of law continuing they said the claims were fraudulent because at the most basic level they were simply in the eligible for payment because they were the product of runner payments so the government is saying if you use runners it's fraud and indeed in his closing argument the government doubled down making clear they were saying using of runner was it are they are they saying it is a i mean maybe they're making arguments a categorical matter but weren't they ali are right they are also making a point that if if the insurance companies would known they would have done further investigation and uncovered perhaps some fraud if fraud existed and that's what made that's what made a difference here as well well they said that but they also told the jury on page one hundred one thousand seven hundred and fifty eight the scheme here it's a no fault insurance fraud scheme and there were many means of accomplishing this scheme paying the kickbacks to runners the patients concealing the payments failing to disclose the payments billing for unnecessary and unreasonable treatments so they're saying that simply using the runners sufficient they have but they're saying that the reason why is because i mean that that you know that it would have been material to their determination that they would have they would have i mean there are a lot of reasons why using a not just per se rule but there are a lot of reasons why using the runners would have led them to believe that fraud was taking place well date meant alleged was three different theories and one of the theories that is alleged in the indictment is this per se theory crack yes ok they also allege this materiality theory which is what i understand your question to caracas ok but this was a theory that was based entirely on state law and interestingly on that question yes was  discussed whether the government's theory that you're calling the pure if they did was down because of the to the later of the amendment to the statute that was in acted after the supreme court of minnesota interpreted as fraud related and each versus board of chiropractor examiners i don't remember that being discussed here now none none of none of them none of you cited that case and it had that course it was directly aimed at another statute but it had a footnote because the statute it just been enacted i don't remember that being discussed ok so we said we have i think that the peter case destroys any circuit and minnesota makes the use of runners in these circumstances of felony arkansas makes the use of runners a misdemeanor and all the other states have no such prohibition and mail fraud is not a scheme to defraud based on what it was they live in and this is an example of why it's improper to use a state law to create a federal mail for a prosecution and except in the the government's theory here would make substantive federal law different in each state law can certainly affect the materiality inquiry in that the well sure but what you have is a situation where there's seven statutes like federal my own wire fraud statutes must be strictly construed to avoid extending limits beyond the limits intended by congress when the government alleges a violation of the state criminal lawyers a basis for a federal mail fraud scheme to defraud it's not really a scheme to the fraud it's a conspiracy to violate a state law statute which is not an offense against the united states and it is think government the government says we don't preserve this argument the district court in the courts should review from plane air while this is playing or the government's wrong we repeatedly challenge this theory that we move to dismiss the original indictment on these grounds the st superseding indictment on these grounds the rd superseding indictment on these grounds is a specific docket minute entry for that doc a number three hundred and forty nine we move for a judgment of acquittal after the government's case we move or a judgment of acquittal after the defense rested we move for judgment of acquittal again after a verdict so meeting a twelve page memo to support that the government is just plain wrong to claim that we never appri d the lower court of this position and the court didn't have a chance to rule on the court had a chance many chances to rule on it and just disagree with us the the what happened in this case is that there were three theories of liability presented to the jury one of them is wrong it's not a proper basis responding to these challenges in a district court whenever we challenge the government's theory i would say on though we're really talking about material nondisclosure or medical in the necessity but the facts are the facts are the indictment the argument to th instruction number twelve the indictment in paragraph eight generally describes the minnesota no fault insurance act and explains the prohibition against using runners and explains quote any claims for services ren health care provider that resulted from the use of a runner are non compensable and unforeseeable as a matter of law end of quote paragraph eleven alleges that the friend in forth and quote illegal kickbacks to the runners end quote and that he did so quote in violation of minnesota's a law and quote the jury instructions instruction fifteen explained as the mail fraud charge that the charge had three elements th of which was that the defendant voluntarily and intentionally devised that participated in a scheme to defraud or pain money property or property roads by means of falls representation or promises which  described in the indictment as follows calling the no fault insurance fraud scheme and quote state law number sixteen defined wire fraud in exactly the same manner except for wire fraud the only question of substance as by the jury during its deliberations suggests that it was struggling to evaluate the legal theories articulated by the government here's the question do we need to consider the runners that you next part of the question do we need to consider of treatments were medically necessary or do we just need to decide of payments to runners or patients were hidden or lied about last part of the question is the existence of a runner material fact the district court responded quote you have the law before you you must follow the jury instructions provided and of quote this refer them right back to the jury instructions and right back to the flood  the district court also erin's law's calculation it aired because it did not attempt to credit against the laws the value of the services provided by the defendants that had value for the insurance company victims know to what extent did the defendants present evidence or argument regarding the object or argue that the government had to give you a had to allow you to or may ha the insurance companies had to value provide what value when there was no l you can let ny started if the if the claims would have been paid yes because services were provided yes or if only partially not paid because there might have been more than what was medically necessary then would that did you argue that would be a valid offset to either arrest to restitution and or forfeiture i know with last fraud loss we get into the intended loss problem but it seems to me that this this issue is clear with restitution but there may have been an omel burden on the defense i think that what happened was that the district court took the loss calculation and turned it into the forfeiture restitution so that wouldn't it but that could that couldn't abandon its intended loss finding actual loss for the actual last one that was the actual loss finding two dollars b n the actual loss was  means gross loss minus value received lower was the argument made on the law's calculation of course i don't remember that argument being made on restitution was violated you have to show that the person is not out but a material ality claim could be constructed otherwise well that's true but let's the materiality again was completely refute it because during cross examination between israel's him myself we cross examined all seven insurance representatives and we asked them if the injury was real which the government didn't present any evidence that the injury was unreal if the accident happened the government did not present hypothetical i mean if you go if you go to the direct examination each of the insurance representatives also said if you knew there were runners would you engage in investigation and perhaps not pay the claim if you aren't covered something would that be material to your decision to pay the claim to it to get to th hypothetical under government had to prove that the treatment was medically they have to prove that the accident was staged they had to prove that a runner was used they have to prove that the injuries are not real they have to true prove that the medical why i don't understand that i mean if it would have changed their decision that seems to me to be material or it would change the way they approach paying the claim that that's a material omission that made a difference to their paying of the claim the material admission again the government has to show that mr hussein was somehow involved in had a duty to make a statement to them about that it was a conspiracy a to vet conviction as to as to the runners but that's correct and but on to that the st thing with respect to that is mr sam was not a chiropractor the evidence was that he was not involved in any of the medical diagnosis he was not involved in setting the medical treatments evidence that the conspired if you will to conceal i'm going for patients not to disclose again there was no evidence on that there's not a with respect to mr hussein and i'm asking the court focus on mr say not a single witness testified that mr the same concealed anything to the contrary mr hussein came to united states in one thousand nine hundred and four from somalia he became a pillar of a community and a resource for all the other somalis who came to united states fleeing their countries with respect they would say obvious where to go for insurance up the where do we get our utilities where do we get our government assuming he got kickbacks to them the government still had to prove that the treatments were medical necessary the evidence from our perspective as he provided interpretive services that was brought out during the direct of the governor's main witness mr are and you don't think i'm just throwing this out you don't think that the testimony that there were runners that undisputed some kind of not really runners but there were people that went out and got you know got folks to go to the chiropractic clinic those folks were being paid and that the insurance companies weren't told about it you don't think that's material well st of all with respect to mr hussein you have to show that he knew about that he knew about those practices there was no evidence presented that he knew about  isha i'm not he's not a chiropractor he's not there he doesn't see their signs he doesn't know what they're doing and that's of fundamental proof when you have a conspiracy you have to show that you normally intentionally in purposefully  yourself of it as we saw it in the hanssen case the fact that you stumble into what turns out to be a fraudulent scheme doesn't make you a participant and so when you review the evidence that we are we asked at the convictions be reversed because the government failed in its burden all fronts every theory that they presented they presented no evidence with respect to mr say with respect to the run or medical necessity pattern of treatment concealment the payment patient refer insurance representatives and the intent to knowledge the fact that he was not in the clinic and not part of it that in that show that he participated then and lastly your honor raised the issue of restitution we did argue before the district court emphatically that the government had to prove that these people were in fact that there was no medical necessity or medical and reasonable treatment and we argued that the actual loss and the restitution should be c or thank you fraud all arising from an alleged scheme that you've heard about mr luna as doesn't fit the runner statute under either count under aoa say mr luna was a roommate of the minor child's mother they were involved in a telephone conversation he referred them to the clinic this child in been hit while riding a motor car strike there a bicycle taken to hospital by an ambulance suffered significant injuries and was treated at the head of and county medical center he had legitimate inet injuries it was a legitimate accident the medically necessary treatments were provided proper fifteen hundreds were submitted and clearly there's evidence the two hundred and fifty dollars was given to the juvenile's mother that two hundred and fifty dollars does not fit into the government's theory that they were paid after they attended six treatments and that they were receiving treatments in order to get the one thousand dollar payments or other payments this two hundred and fifty dollars was given to a former roommate as assistance to help her be able to get the treatments that the son required it doesn't fit the runner statute the two hundred and fifty dollars payment is not material and the claim had to be paid a o s was also treated by the cooperating chiropractor dr how many who testified that all the treatments were medically necessary he believed that they were appropriate and every treatment he provided to a o s were supposed to be provided and were form if this was really material information to the insurance companies they'd at least have a portion on the one thousand five hundred that might say do you think there's information we should know was a runner you state was the patient given any quid pro quo we'll provide you steaks if you come to see us we gave you two hundred and fifty dollars to come materiality if it's as important as the in surance company claims it is to them even though they admit that if there's a real accident to real treatments and they're medically necessary we have to pay well that's an argument you make a trial to the jury they say we presented evidence that it's really important you say well it's not on the form the jury makes a determination and then they came back and ask questions about materiality and otherwise and were given the direction to go back and read and which again is their theory of the case which we respectfully submit they failed to prove under all three theories in regard to e g the igi does not fit under the  either it was a compensatory claim legitimate injuries a legitimate act medically necessary treatment and this individual voluntarily testified i voluntarily chose to go to the clinic i made the arrangements to go to the clinic she gets told according to the evidence not to say anything to anybody but this goes to the fact that that is a statement that was made but there is no evidence to suggest that mr luna had any idea about the billing practices why there may be a statement made like this a o s his mother testified nobody told me not to talk to anybody bought this testified nobody ever talked to me about receiving money i went because i needed treatment as judge davis said in denying our judgment of acquittal motion this is a very close case but i'm going to let it go to the jury i respectfully submit to the court reasonable jurors could not have found mr luna guilty based upon the question that they were asked if they had been given instructions and appropriate law thank you i reserve all the other time for m please the court i might cheever i'm with the u s attorney's office here in minnesota at counsel table is john coke and one of the two he was a is the tried the case i'm not the other i also have a counsel table jay at meijer who's a nd year law student and his assisting with the argument i appreciate the court's indulgent letting him sit in this scheme from two thousand and ten to two thousand and fifteen was basically a fraud factory that was this was ninety percent of their business it was their largest non it was the largest expense they had they paid for through more it was run almost entirely through runners and they were instructed to require the patients to show up for a minimum number of treatments we charge the scheme by five different means that i laid out my brief page ninety one is that the  clinics billed for unnecessary medical care another that they billed for treatment that was not provided we allege the non compensable nature of runner runner violations of the runner statute ph actually in terms of intent to defraud is in our in our interest in the end it's moot your honor and we didn't prove it to the jury we the jury was instructed not to make a determination of whether or not the runner statute was violated we could we allege that i am ready to defend it but i'm frankly kind of bewildered that that's still an issue before the court really it was one that mr bloom to me that the doesn't take away the materiality of the runners to the insurers who we called to testify i understand it's it deals with as precipitate a chiropractor and licensing non disclosure less likely to be considered material by an insurance company yeah but we had the testimony from every insurer which is just common sense of course it west by the statute which is what the supreme court of minnesota said in footnote seven and peach which may or may not have been be affected by the subsequent amendment but taking that as as as the best indication in minnesota law what's what but why is that material it may be the best indication of minnesota law but it's not the best indication of what the insurance companies found material they testified that they deal in a number of states not all of which have something like the runner statute but in every state they care about that i mean the peach decision may be legally meaningful in some context but not to these insurers and every single one of them testified to that effect and it's common sense if you're pain or a patient to come get treatment and requiring them to attend a number of a certain number of treatments the insurance companies want to know that they want to know if you're ninety percent of your business is coming in that way i'm sorry for laughing but the level of fraud here it was absurd and dr hominy testified to that only to the extent you prove that  not medically necessary treatment when i was getting back to you or or a notary you injected that question as i was getting the last few means of proving the case which were the easiest which is to say the defendants concealed those run payments by affirmative acts from the insurers and they concealed the payments to patients mr berle mr zaid mister hawkins think they ignore that last one even though business but you know i'm base is complete this way all the time i'm basing and what the business people say is material to them and it's they would want to know this because they say in our experience it's indicative of fraud you don't find runner payments without finding fraud in the air and cop a so now we now you've proven that it's indicative of fraud but where's that where's the fraud that was proved well we had the doctor and i'll jump ahead to restitution where where's the proof that individual insurers the adding up to a eleven million five hundred thousand individual insurers would not have paid the claim the the testimony in those instances is they would have wanted to know dr hominy testified their actual loss yes is claims they shouldn't paid oh i'm sorry yes your honor where's the proof where's the proof that the claims that the claims paid the gross amount of which was their restitution award for for services not provided or not necessary dr home and testified i'm not grabbing the transcript page but doctor how many testified for example when these patients wouldn't show up for their six visits it was common to bill for services that were not rendered is running away from the question i'm sorry i would have expected every insurer who is going to be a recipient of this restitution award should have testified with respect to the claims that are being reimbursed the claim payments that are being reimbursed in this kind of situation where it i think it's obvious that covered for some other reason for the insured to be entitled to restitution for paying that claim on that fear no i don't pardon on that theory but i don't see any other bas forfeiture goes along with that i see absolutely no proof by the government i would actual loss of the victims i'm sorry i was confused i thought we were still talking sufficiency but in the context of loss you do get to talk about the runner statute among other things it's a felony in minnesota to help out how does a don't forget loss i know you i know the loss arguments and they're complicated here i'm looking at restitution so i've restitution to me is a slam dunk reversal clearly ninety percent of the business i mean he says otherwise that it's not that those are legitimate claims that can be built these were non compensable claims under that runner statute which may which means they wouldn't have paid and they should never been built but the jury verdict supports that but the runner statute doesn't become a relevant in the sentencing context it's already basis other than the runner statute for those losses and here's why i ask that because judge loken is making a good point which is let's say one point i don't know how many back but the actual one million five hundred thousand dollars will just rest on that round figure some of those may not have been paid because the runners the further investigation could have revealed fraud and those would eventually be noncombat and i don't know if you prove that or not but some of those would have been paid and there's no allegation that every single one of those was medically unnecessary and so then the bend the point comes to zap restitution claim that that was ordered rise and fall  solely on the run or statute or not i got this goes back to me missing the sentencing context sure the st response to that in the sentencing context is that is the guidelines the application note the actual loss the credit against that for some value received is received by the victim that's in black and white in the application notes the money returned in the fair us talk about that ok we are we are talking about the insurance companies getting reimbursed for insurer coverage claims paid to the that's that's what the rest to write as we're talking about the insurance company is paying the claims yes them is the restoration victims are the insured right yes the money they're out our coverage claims paid for injured or no fault claimants yes ok so if the claim was paid for a for a service or treatment that was properly provide that was actually provided i say that's an offset but the well the the the you know the service provided to a rd party that i was really that i was reimbursing what you good good public policy would be one answer we do not want insurers and they don't want insure rs being able to build this way this business was ninety percent these these these treatments were given in most cases lots of civil remedies for what your time and there's also criminal sanctions for it and the loss amount for sensing purposes the restitution amount they don't go hand in hand yeah i understand i understand i don't understand i can understand how you could you could say there was an act it was certainly intended laws but maybe an actual law somewhere but the insurance company is not a victim except to the extent it paid a claimant should have had to pay exactly and they shouldn't have had they were deprived that opportunity or legal theory that these are not compensable per se well that burden of showing that own once no i'm not i mr burrell was right and he raised exactly that offset issue in his sentencing materials but it's the it's flipped around from trial where the government needs to show medical necessity or lack thereof once you're at sentencing in the defendant is looking for an offset restitution purpose the burden is on them and they're not coming in to show that whey all the only way the only way to get at this would be to have a hearing at which the insurance companies would have to  forward and substantiate their actual losses by demonstrating or with the government's help demonstrated that they were that they paid claims they shouldn't have had to pay no mind no way to dispute it that they paid claims they didn't have to pay a question i was disputing it by peach your whole theory is that these were per se violations of a state statute that has not her and he does a really nice job there talking about the sentencing while the actual last intended last any and he finds that there was there there wasn't he doesn't make a finding that every single one was  unnecessary medical medical needs but he makes a finding that that was there was plenty of evidence showing it mr home he testified to it we had six counts but that just means there's a windfall going to some of these insured victims yeah you know you can you can look at it as a windfall but that in terms of the law allowing that to happen look at some of the bank fraud cases where there are multiple victims and every bank comes in with chapter and verse on what it lost and if they don't restitution is not a word and that wasn't done here i am familiar with the bank fraud in particular market marker you and i went back and forth on that and of course you get to decide that but those circumstances were very different from here where the victim doesn't have the money doesn't have any other they are out that money and if they were if the defendant wants us to the extent they paid money they should have paid they were not a victim they were a victim in terms of need to provide that information or they were deprived the opportunity to investigate fairly to you know i go back to my original question and that's all relies on the runner statute you know i mean at least in large part i mean i i don't see another theory where you can get around the fact that you know the actual last to me writes the easiest one and you get pretty much there on that it really you know it's a felony to do these things and that is a state which is the runner statute it is ok and it's it reflects the state interest in not allowing  other practitioners to do this in an area that is full of fraud and what i'm trying to get out if i'm just trying to figure out what the issues are so i think the sufficiency stage we have a different materiality argument as you talk about i mean yes the broader statute was somewhat relevant although it doesn't appear at the time of  final verdict to have been relevant but it restitution it seems to all fall and maybe for actual losses on the run or statute i think that evidence at trial regarding the purpose of this business dr how many's testimony the undercover tapes show that the doctors didn't care i'll give you an example and just make sure it seems like i've been up here long there's an example on tape with the undercover tape is the f b i agent is asking about bringing in another being a runner basically and they're talking about a potential claim with dennis black another f b i agent that he rejects and the and mister for food talker dr forth in talks about the difference with the with the settlement at the end he really he doesn't he's not interested in getting reimbursed per trip for treatment he's interested in the payout at the end which comes down to for example fault in the accident he doesn't want to treat someone for fault in the accident because there's this fraud under the table going on with the settlements he gets his big payout from the settlements through the insurer the attorneys that he's working with then even the record in so in terms of judge dave was giving us a reasonable estimate of what should be restitution but fraud was far beyond that in the let me ask you this though why not present evidence from that yet every insurance company executive i don't know if there are just adjusters or but there is somebody from like seven different insurance companies why not simply ask them the question so when you have a runner you know they they they certainly keep statistics on the stuff i would think when you have a runner fifty percent of them turn out to be fraudulent they should have been paid thirty yeah i recall that i do recall hearing cobbs testimony which was essentially you don't see runners without fraud everyone and you know if that's that that's that one insurance company but it's consistent with what i'm talking about the rest of the testimony the rest of the undercover tapes the trial lists the people were getting treatment but it doesn't mean there was injuries and i want to i guess highlight a point chiropractic treatment is particularly conducive to this fraud because there's value in the treatment to the patient you know a professional athletes chiropractic treatment and massages and electronic treatment to be better athletes but that doesn't that's not a physical injury so people are coming in they're getting real treatment but not treatment that the insurance companies should be covering not treatment that should be billed into my my own insurance rates that's good there was real treatment going on we don't dispute that it was valuable treatment but not for the insures that was fraudulent treatment sorry i'm getting out of breath trying to trying to answer your question ok thank you but you would you would point me to that particular the testimony that then even if even if even if they knew that being a runner was suspicious i suspect they did so therefore it was and was not to be over be disclosed what what what what ties them to an obligation to disclose to the insurers a fair question and we proved that a trial judge davis assessed that and gave some detail beyond the overarching scheme which was if you couldn't really work for this company without knowing that there's a scheme i'll cite a couple witnesses testimony for that point there was a runner the lima conner on who was also a patient and she with she was she worked got legitimate checks from the office but when she was a runner she got ash it was a common practice she worked around the same time as carlos luna and carlos luna did some legitimate driving for the for the clinics when he lost his driver's license she said she needed to drive him to pick up his clients and he needed to be there because he's the one prodding them to show up for the treatment the she talked about how that is i mean and she talked about in dr how many talked about that's what the runners do they all knew what they were doing was prodding these people to come in and getting paid for it for luna as well you see it most evidently in what mr hawkins talked about where mr luna is telling one of the patients don't tell don't tell him the one how you got referred to the clinic and she testifies that that bothered me that didn't seem right but that's really good evidence of knowing participation  defraud for mr well but a scheme that the fraud has been narrowed down to just material non disclosures to insurers i don't think you get to read that into the jury's verdict your honor and i don't think it's then we're back to  then we're back to whether that by violent threat or statute per se no i think i think we proved it's harder to say it on the individual counts but on the conspiracy count there's the testimony of khomeini that they're billing frequently or often for treatments that aren't provided and that they're treating kind of a regardless of he claims person by person that they for all he knew needed treatment but his outline on direct is we're maximizing payments were maximizing treatments to get get payments and that had nothing to do it was regardless of how much how many treatments did the patients need so you would say the minimum amount of treatment is enough to make an inference of knowing participation in the scheme for the jury absolutely yeah i mean it really is what i call it it's hard to get from from briefs it in this is a huge record but when it's hard to sit through that trial or read that transcript of his i've done twice it all ways into each other that this is the whole purpose was was fraud and the runners back each other up is there a difference between and i forget which one had the prior experience with another clinic i think it was hussein was that as about i get to that and  hussein and luna for those purposes in the sense that maybe there's a greater inference for hussein who had done this before than there is for a loon i guess not there absolutely is that was the meaning hussein is an easier case i started with luna because of that hussein  doctor how many testified that hussein was one of their main runners during the time at one point in time for about a year hussein also came to this clinic after being a that his clients are pieces of crap and because they're not showing up for their treatments and he's got to get out there in and get them and then the point is you've got to bring them in you're whether they need treatment or not and you're not going to get paid if you think for hussein as well he did pay cash to at least one of the witnesses but that was the whole practice everybody paid cash and it really it folds back into what i find just patent fraud is paying patients to come get treatment the runners were paying the patients they were getting paid to recruit them they were being paid to keep them quiet  tell them the lines and so as to hussein i mean i i can look in my notes and go further but i really think that the it's a good question your honor what how do these people are they different but they're part of this would it's corroborated by the text messages to and from them the limber phone calls going through them it they were part of this scheme and we proved it really through direct testimony of dr hominy and corroborate my interpretation of it is that it alleged a violation of the runners and there was a case the judge showed said written that cited in our brief the on those farmers case there was a kickback case there's a civil case and he said well even if there's a kickback if the insurance companies providing medically necessary treatment as they're required to do under the no fault of x sixty five b then there's no may or wire fr so i raised this issue and then the government alleged in the next indictment that the treatments were medically unnecessary and my my take on it was it was trying to do an end run around judge s opinion then later we pushed about a bill of particulars to understand which patients the government intended to prove with their expert  had received medically treated medically unnecessary treatment because it seemed to us that maybe at least that the way to do this would be to have an expert come in and say look at the files or she looked at the files and examine the patient perhaps in this treatment was not medically necessary so what happened at trial was their expert testified that he had reviewed any medical files any patient files and then went on to opine  as i understood it general information about chiropractic treatment so then there wasn't any medical testimony in front of the jury from which to conclude that the treatments were medically then hips of fact though the treatments were medically unnecessary which isn't isn't isn't correct and so the way that the case was tried in my view is that it was entirely based on this run or statute that's what the case was always about that was really what the government argued what about the fact that opposing counsel says that kind of fell out of the case at the end that yes it was it was part of the indictment but i really really didn't find the basis for the verdict well he said that but what i said i would return to what i said in my opening argument the the argument that the government made that i read  the allegations in the in the jury instructions as to fifteen and sixteen which is the mail fraud wire fraud instructions direct the jury to the no fault insurance scheme in the indictment the indictment says that they st talks about paragraph eight i think is sixty five dollars b generally no fault than talks about the runner statute and alleges that for them violated the runner statute that he made illegal kickback payments to these runners and that any payments made in these circumstances are on of not compensable on uncollectable whatever the words are that's the effect of it and then there's and then they say well and by the way don't pay any attention the runner statue which seems to me to be hard to do so i don't think it's correct that that the the government walked away from their runners that you know i think they embrace and that's that's what they encourage the jury to convict these people on it was in the materiality theory it was that the runners were paid you're not allowed to pay runners under minnesota state law it's a crime under