justice mystery taking i should be given a new trial based upon newly discovered evidence generated by the victim alleged victim agency in this case and in our opinion the government perpetrated a giant hoax on the jury to district court and this court in the prior opinion this court said fraud was epidemic because seventy nine percent of long  rare applicants were approved and only twenty one percent a mature northward that finding was based upon a false presentation by the government at the trial because the all rob the inspector general is telling us and telling congress that they are all be under this lenient standard grants ninety eight percent of the disability applications it doesn't matter whether it's long island railroad new jersey transit or south pacific and that's because the standard to determine whether you're eligible for a pension application and there was lots of evidence presented of falsities lots of evidence that the government relies on this case is in the non medical portion of the application where the applicant says it was difficult for me to do this it was hard to do that the non medical portion of the applications did not determine the pension grant with respect to all of the materials provided nasty is the medical assessment of the application correct and that's why they decided the pension on it was not fraudulent they didn't prove it was fraudulent if they didn't on reinstatement with other doctors assessments yes there was reinstatement but the evidence of fraud with respect to dr lee's usc it was that he basically was filling out fabricated paper trails to support his fluty applications he knew that people were working in could continue to work that was his knowledge whatever other doctors subsequently found he made an admission that he saturated at least twenty percent of the applications in other words looking at all of this evidence the medical as well as the non medical part of the application was falsified that's what the jury fam that is in correct assessment of this record gave an interpretation that said it was inconsistent with playing golf dr barron had no familiarity occupational disabilities stand and he never was asked to examine mr a take leanna and if the trolley was asked he would get over the weekend what help you says that would be a different story so you had a expert who didn't have in my opinion a sufficient knowledge to be able to make an opinion in fact in cross examination of trail for false disability claims they didn't say false this ability claims the problem with the four people who test for the creation of a paper trail there was no in the first of all backs in fact polenta he was sideswiped by a two thousand horse power locomotive honest last day of work and doctors along it is notes show how he treated it with steroids and things of that nature it is wrong to assume in this record that the that the government prove the doctor was fabricating misto particularly anos injuries because he did you introduce any evidence at trial or show that  other long island railroad employees who successfully applied for disability were in fact disabled the prevailing standards at the time mean part of what the argument is now is the yes it's a risk yes so yes yes on the cross examination disabled under the political standards at the time of the we relied on the government's evidence we rely on an exhibit one hundred a part of what's happening now is that you know ten years later determinations made well after the fact  you're looking to and pointing to those as establishing that at the time people were in fact disabled under the prevailing standard notwithstanding false statements and the evidence that judge chin has pointed to of mr parlato each got ya know super  amar and plenty that there were false statements made first of all the false statements made part of a subjective part of the application and a rare zero retirement board durkin and i'm from chicago and i've never been here before it's kind of a big thrill we are from the second city and we always think of ourselves as second rate i hate to admit well it's it's my favorite but we always look to do you guys for wisdom and we kind of think you're part of my argument and i'm going to go off of what i want to say the first thing i to say john klein who wrote our briefs couldn't be here today because he has a death penalty case in georgia i don't normally i'm a trial lawyer i'm not an appellate lawyer anymore but i would refer you both to our reply briefs more than anything else i think they're they're excellent and i think they address a lot of the questions you've asked the first thing i want to say based on what i've heard you ask mr ryan is that if you're going to rely on a jury finding in this case then you have to give us a new trial because the in this case was so affected by the statistical evidence you cannot ignore the impact the statistical evidence head from to two different railroads and there's a mountain of reasons why it was wrong to begin with but we were slapped by that throughout the whole trial you can't get around that there were no specific findings of false statements  and with respect to the four patients of dr liz new ski i did the government can come in and tell you exactly what was false they all one things government says in their brief which i take strong issue with is that  it was despite having offered little or no meaningful treatment to these patients that's just not correct and if you look at our reply brief from page five to eight the testimony of those four witnesses is laid out every one of them was prescribed medications every one of them one had a documented will torn rotator cuff and each one of them dr louis news the recommended surgery for all four of those patients s so to say that it was all false is just nonsensical to me and i don't know that again that's where we get whipsawed at the trial by the statistical ev conspiracy to defraud the long island railroad he spent said specifically he thought there would be more pushback he had no idea that he was exaggerating applications thinking the people would catch the exaggeration meaning on the on the conspiracy several of his patients testify that they express lee went to his office for that purpose that would be enough to in the order of a conspiracy conclusion be a tacit conspiracy with all due respect judge i don't think so because each one of them said that they got treated like they did by every other day i cross examine those people not one of them said that they  concluding that it had no real concern that innocent person might have been convicted or that a manifest injustice was done that's the standard for getting a new trial and to rule thirty three i don't see how the fact that you can now in light of the fact that they granted a lot of these people's disability benefits maybe have a better argument on the statistical evidence that's not the standard for getting a new trial how do you mean how do you satisfy the standard let alone show us that the district judge abused its discretion because i believe you can read this record with the amount of the reliance that the government took with the statistical evidence that this is a game changer and i think it is minute changes whether we think an innocent person was convicted and you know as i said if you find it meets that easy saturating records that's but judge with all due respect that is not a confession it is certainly not a confession to this conspiracy it was taken also out of context we weren't permitted to put the whole statement in there were two different statements that he made they were taken out of context he can he offered to continue to help them  are trying if the government to represent the government at trial in these proceedings before the district court and on appeal as it is a court found these post border approvals which occurred in some cases more than a decade after the fraudulent events at issue in this case provide no basis for new dros or in connection with the twenty's the five which will be discussed later recent things the border process by its terms had no bearing on the truthfulness of the documentation submitted by the defendants and their  coconspirators to the or be more the entitlement of any of the former long island road employees to disability at the time of their earlier fraudulent i'm not none none the less i mean to the standard even recognizing the standard on rule thirty three is difficult to abuse of discretion each show manifest injustice and so on i am still troubled by the fact that these were retroactive determinations back to the date of the first disability determination that it was that there it while they may not have reassessed the records submitted at the time that there was enough confidence to make those payments all over again and a very high rate in depending how we even acknowledging that some people didn't we apply it looked like from the numbers i could discern a fairly high percentage did reapply and that in your adversary's saying that this was a key element of the government's case to the jury i'm suggesting that this was an adequate basis for inferring the intent that was needed to convict under both conspiracy in the substantive charges so i am concerned that the trial did and i don't know the record in detail the whole trial but it that the government's case did turn heavily on this the statistics at the time and that some of the statements were by and the cooperating witnesses were at most equivocal how do you respond to that argument certainly no doubt a few responses the first is just the initial promise the rb did not determine retroactively that anyone was entitle to disability at the time of their initial applications where the process worked is that the rb may be made a determination that we are we are not going to consider that i did not make the payments retroactive they made them retroactive to the date of their terminations so they were terminated as of the date of the of the board orders which was after trying and they made their determinations retroactive to that date didn't go back further was it limited retroactivity it was correct it was may they terminated the the applicant's disabilit y and said you can reapply and as of and we will make a determination as of the date of the determination of the of the terminations but we are saying nothing about your entitle meant to do to a disability at any time prior to that  although they made it they didn't go back and seek to recover but they made no determination pursuant to the process about anything prior to the termination date so that's just as far as what their findings show which i think is also important in understanding the arguments with respect to the statistical evidence the entire argument about the statistical evidence depends upon an assumption that that that these post border approval say anything about entitle much disability of eighty percent of fifty year old long island railroad employees at the time of their initial fraud on disability which it says nothing about so even given the existence of the rbs findings ten years later the there's just no way to look at a at a realm that has eighty percent of his of its employees applying for an obtaining disability when a comparative railroad in the same geographic region with the same facilities in the same but but the but the point is there is no explanation for it other than fraud no one has put forward a reason for why it two to row roads be just  that we have been assuming that there is there is no fraud or there's no over this entire process is is entirely above board the so there's there's no there's no finding that i was correct there frost continuing your honour's a possibility but but but ultimately the standard is a standard and it is the same standard applies to long on road employees that applies to metro north  s and the fundamental standard is that you are unable to do your job you are physically unable to do your job edi percent of long island road employees at the age of fifty have claimed on are found to be unable to do their job that is not the case at metro north the only difference between metro north and long island railroad is that there is a financial incentive at long island railroad to retire early and apply for disability problem for you of argument is somewhat undercut by the fact that very large number of long island railroad employees have been found on untainted medical reports to satisfy the standard now i recognize that the inspector general's report has criticised what he called a ludicrous reinstatement rate but never the less that that is  no there is no relevance to the evidence and there's nothing that would undercut any of the evidence that the government offered a trial where the arguments the made that the government made from an evidence for trial but fundamentally the point isn't one that you raised earlier which is whether there is a a serious concern that an innocent person has been convicted judge morrow found fairly easily that that was not the case he was the trial judge who presided over the three week trial in this case who is  therefore entitled to broad discretion and certainly did not abuse that broad discretion in concluding that there was overwhelming evidence of the defendant's guilt and that there was nothing about the post border process or the recertification that would have any bearing on government says if you apply and you qualify for disability you get another twenty five thousand so that retirement made economic sense for the metro north workers they had to be sixty five years of age before they were entitled to their metro north pension so that in fact that coup was the attorney channeled that conduct in order to miss the murray testify we had to replenish the long island railroad pension fund by twenty million dollars because everybody was pulling out a loan or it was a sweet hunt contract that's why you're dressed the concern i with mr durkin which is not whether this might conceivably cause a jury to recalibrate certain evidence but whether or not this is evidence that suggests that an innocent the standard didn't rip prevent him from playing golf standard action that was given was that which comes from twenty c a far section true twenty point can the one you're referring to is in the  labor management governing principles i'm not sure that that's the controlling legal principle let me tell you then let me tell you how the regulation is the controlling principle let me tell you the process that produced that resolution and that stand that's not my question i'm not interested in the history of it you're suggesting that there was an erroneous charge given first of all that was rejected in the first appeal and i'm not sure how this change in evidence requires us to reconsider the in forty five to thirty one a congress the record the arabi to establish a standard and consulting with the employer and employee representatives as a result of that process you had the resolution and you were is whether or not you're unable to perform a single task you were able to put on whatever evidence whether from experts or to the court in arguing for the charge that's that has i argued right and was denied the charge i don't have to produce anything else so you know i was the night the charge wrongfully and all of the posts develop in evidence and judge connie government exhibit one hundred has all the medical that a doctor lewinsky a thirty seven months of treatment injections respectfully i think the reason a wrongful conviction took place here why an innocent man may have been convicted was implicit in the government's admission to you which was astounding to me that perhaps the fraud is continuing now and even even then which seems to me it would make any doctor who's now submitted claims under this revaluation to be fair game as well that's the problem with this case and that's the problem and that's why someone was wrongfully convicted he did not that there is not sufficient evidence in this case for that conspiracy based on this newly discovered evidence this evidence shows you what's wrong with the case they have to concede that yes maybe fraud still going on and they don't get around and i don't know how anybody gets i never understood the statistical evidence because the whole idea that the metro north can't report they can't retire at sixty five makes the statistic meaningless to begin with we tried to argue that before and i don't want to read argue that but for your concern about somebody being wrongfully convicted all you need to think about is what they just said a little certainly a doctor were your client if he had simply said i thought he couldn't perform a single task and that was the basis for my opinion could have argued that the jury even now the problem for you client was that he fabricated records i'm missing some i i'm not sure where th listed things that were wrong with these people all four of those witnesses said i had a shoulder problem i had a knee problem i told dr lo's new ski i had these problems pain is pretty subjective and they all came out  cross examination every every one of these nope not one of these people said that this was a wink and i had an eye in he knew what can one say to him i need something or wrong with me no i said i don't still don't feel good i need something he didn't say i don't think those are the words he has i think he said he needed some he would like to have some more documentation he asked for i think four or five different tests and i think only