friedman before i forget to do it at the end i know you are handling this case you in the firm on behalf of miss abreu pro bono and we really thank you for your service not only to her but to the court thank you whenever you're ready good morning may please the court i'm daniel friedman from the law firm of friedman fels and sodo pro bono counsel for dr vondra abreu dr abreu seated at the end of our counsel table there she's present along with her family also with me at counsel table are stephanie silk konya and dillon fe pro bono counsel from whiting case and sitting behind them are additional members of art white and case team that's been working on this case i that the district court issue it this case turns entirely on the wilner court's explicit finding that there was no evidence of dr bruce intent can i ask you a question just to kind of get us going wasn't the question presented in wilner and i think if i'm reading from the opinion itself you know we resolve all reasonable inferences and credibility of irish and favor of jury verdict and ask whether any reasonable juror could have found dr abreu guilty beyond a reasonable doubt how given the procedural posture of a direct appeal how could the th circuit have gotten as far as you needed to have gotten no matter what it said no matter what the opinion said if the opinion had said on balance we think she's innocent would that have even been proper given the procedural posture of a direct appeal from a criminal conviction you're correct that that's the legal standard it was a sufficiency of the evidence case and normally the court is deciding whether the evidence is sufficient this case went further it was a unique case it was an unusual case because the th circuit went through each piece of evidence that the government put forth and concluded that there was no evidence of her intent no evidence that she will fully joined in and participated and in any any conspiracy it was on that basis that we decided this is a unique situation this is a rare opinion and we believe that she qualifies because it but even philosophically i mean isn't that at the very most at the very outside the most the th circuit can say is the government presented no evidence that doesn't mean necessarily that the conviction was reversed or set aside on the ground that she's not guilty of the offense so that check that check no dispute nd that she did not commit any of the acts charged or her acts and deeds were not a crime  again that's the tougher one i have that's the one that's i think more and most in dispute out and rd that she did not buy misconduct or neglect cause or bring about her prosecution so which the government didn't raise below so the focusing in on the on the point the court the government's burden was to point to the evidence showing that it was sufficient and the th circuit scrutinize the evidence and said there was no evidence of her intent in in if there is no evidence of her intent there is no crime the i guess i think there's a difference between setting aside the procedural posture of a direct appeal where the only question presented is is there sufficient evidence to convict i think there is a difference between no evidence of intent and evidence of no intent sort of reminds me of what like my th grade biology teacher would say when you say i didn't mean to and he would say don't not mean to me not to and so there's a difference between no evidence of intent and evidence of no intent and what you eat what you need i think for a certificate of innocence is evidence of no intent and i'm not really sure how the th circuit on a direct appeal could even do that validly so two to two responses to that point st of all the statute requires its innocence is just a shorthand for satisfying the statutory requirements those three things that's what innocence means in this context so for point two our burden is to show based on a preponderance of the evidence that she did not commit the acts ch action was conspiracy right so you need evidence that she did not commit that act and i'm not sure what the th circuit to pinion can give you in the way of evidence that she didn't commit it they can only say that there is no evidence  so in dr bruce case you have a probable you have probable cause based on a grand jury indictment when you start out with a case right right then you go to trial and the government's burden is to prove every element of the offense beyond a reasonable doubt right the th circuit holds in willmar that to dr abreu the government did not meet its burden on the element of intent and so i want to approach judge nuisance questions from a slightly different perspective but i think it's the same question which is how do you bridge the gap between a grand jury probable cause determination which is not determinative right and the th circuit panel decision which said the government did not prove any intent on dr bruce part beyond a reasonable doubt well that the grand jury standard is is low it's probable cause this was a multi defendant case a lot of people were charged together i don't that the grand jury's determination initially is is what's at issue here it's what did the government actually show a trial and at trial the government produced not one document that dr bru falsified and did not produce any evidence director circumstantial that she joined in this conspiracy normally the th circuit in a reviewing court would say the evidence was insufficient but in this case the th circuit chose to go further and to say there was the evidence didn't exist at all there's precedent for for this look at the case in bet's this is a th circuit case the court said that given the context here a reasonable trier of fact could not have found that the evidence established beyond a reasonable doubt that that's was guilty of criminal contempt for failing to appear at the hearing i was betts one the court did not say he was innocent so betts applies for a certificate of innocence for the fifteen days he spent in prison and abets to the court said well our prior opinion makes it clear that that's did not commit a criminal offense so this language here reasonable trier of fact could not a found that the evidence establish beyond reasonable doubt that's our situation see i would have thought that the answer to judge jordan's question how do you bridge the gap from like you know sort of no evidence sufficient to convict to evidence that she didn't do it would have been that you see can have an entry hearing for the on the certificate of innocence and she might take the stand jeopardy has evaporated she might take the stand and explain like provide additional evidence to meet this preponderance standard why it is in fact that it's not only that there wasn't sufficient evidence that i did do it but let me explain to you why i didn't do it maybe you know maybe it's an affidavit maybe it's live testimony and so i would have thought really that you would have been screaming bloody murder in this appeal that the district court denied you an evidentiary hearing but so far as i can tell in the blue brief that's not an argument that you've made now they say in the read brief don't worry about the fact that there was no of it enter a hearing and then in the gray brief you said yeah yeah yeah abuse of discretion denying us an evidentiary hearing but i'm not really sure that you preserve the argument because you haven't made it in the blue brief well we raised it with the district court below we asked for a hearing we only asked for it after we saw the government's response because we thought this was a very clear cut case based on the th circuit decision and welner and the government misconstrued the law misconstrued the facts so we asked for the hearing and that the judge did not grant it and we did we did argue  this did you argue in your blue brief that the district court abused its discretion in effectively as i read the record ignoring your request for an interesting because if you did actually think that arguments got legs evidentiary the wrong legal standard to this case she applied this heightened possibility standard and she used the standard four times throughout her brief or her the order i see my time's up but i can go ahead and finish that thought short so this is this is in four spots in this decision she said if there is room for the possibility  evidence to support dr bruce condition there was still room for the possibility she committed the crime this was the court's holding this possibility standard is inconsistent with the statutory text the statutory tests requires proof based on a preponderance of the evidence that she did not commit the acts charged this possibility standard is impossible and it's actually it comes out of the bets case do you think she was just recognizing sort of the i guess the question that i was asking you that there is some philosophical space between insufficient evidence that she did it and is preponderance of the evidence that she didn't do it that or the gap that judge jordan was referring to the the question here is how do you prove a lack of evidence how do you prove a negative i would think the answer is you have an evidentiary hearing you put her on the stand she explains why it is that she didn't do it and there might be very good i mean she might have a really strong case and as a matter of preponderance you might be able to prove it in the district court should have given us the opportunity to replayed and revisit this that's the abu sure wish decision where the court applied the heightened pleading standard and did not give the petitioner the opportunity to to repl please the court jeremy sanders of the criminal division on behalf of the united states your honour's when this court vacated dr bruce conviction on direct appeal in two thousand and fifteen it concluded that no reasonable juror could find her guilty beyond a reasonable doubt contrary to dr bruce claims now this court did not reach out and decide an issue not before it namely that she was actually innocent of the crimes is it is it possible though that whether in this case or otherwise that the th circuit  appeals generally and on a direct appeal of criminal conviction could write an opinion so broad so sweeping that it would on its face give rise to a certificate of innocence i think the answer to that is no and i think that the th circuit decided that in the pool and again decision where they specifically indicated that the district court in that case had granted the certificate of innocence based on the seven circuits prior decision the th circuit on the appeal of the certificate of innocence on the government's appeal reversed and said no our decision does not automatically follow that there was actual innocence in fact it's a different inquiry and similarly in the th circuit in the racing services case made the distinction that it would in fact be dictum for them to have gone beyond that beyond that standard that is present on a direct appeal which was inquiring into whether the united states had proven beyond reasonable doubt  ok so these cases were prevalent here in the eighty's and ninety's these were the big drug freighter cases so a one hundred dollars foot boat comes into the united states into the port of miami  it's loaded with fifty kilograms or more of cocaine or whatever your drug of choice is it's in a secret compartment there are thirty crew members aboard and the government at that time says we indict them all so you indict thirty of them and given volume and given all sorts of things that are going on the poor a usas who try the case forget to put on evidence as to one of the crew members there's no evidence whatsoever about that crew member they just forget and the district court makes a mistake and doesn't grant a judgment of acquittal it goes up on appeal the th circuit says for whatever reason as to that defendant you introduced zero evidence of guilt zero evidence of guilt if that opinion if that sort of an opinion is before us by that defendant could that opinion give rise to the granting of certificate if there is no evidence whatsoever doesn't the government have isn't that enough on a preponderance level forcing the government to then come up and say listen we blew it but we really had this other evidence that we forgot to put in well no because you're talking about preponderance which is moving the needle or the football whatever thing you want to use a little bit beyond the fifty yard line that you don't think that could be enough but that's the burden of the applicant in this case dr abreu to prove that i'm moving away from dr bruce case is the hypothetical so we're going to stick on that hypothetical for a moment if that's sort of a case using a preponderance standard you don't think that opinion makes it more likely than not that defendant is innocent by virtue of the lack the complete lack of evidence whether it makes that defendant innocent is not the inquiry under certificate of innocence it is that hypothetical defendant's burden to come forward and show to the district court that he or she did not commit any of the acts charged there is no evidence the th circuit said there's no evidence the government presented no evidence what does he or she have to show beyond that well i think that exactly what judge newsome had alluded to earlier is that this this discrepancy this gulf between a failure to prove a case beyond a reasonable doubt on the jury and the benefits  burden on the applicant for the c o i is either a deck sworn declaration if read a defendant can take the stand and testify under penalty of perjury subject to the crucible of cross examination but again it's their burden simply coming forward and saying well here's the you know prior th circuit's decision said the government didn't introduce any evidence i mean as a prosecutor we all know sometimes the evidence doesn't come in as we intended maybe a witness didn't say what it said and proffer sessions that does not mean that there is no evidence or wrecked out there is zero your argument in dr a bruce case is that although the evidence all of the evidence you the government presented was insufficient to establish guilt beyond a reasonable doubt there was evidence putting a little bit more of a burden say on her to come forward with some affirmative evidence absolutely i'm not sure that the hypothetical case that i gave you is the same because that's not a court saying and the reason it matters at least to me and i think to judge newsome and maybe judge paul is that we're writing this for the st time and so we have to figure out what the statute means and provide some guidance going forward and i speak only for myself and not for my two colleagues i think that hypothetical there's a chance that that might be enough for that defend i think we'd have to remember what the posture would be on a certificate of innocence claim which perhaps that defendant comes forward and says maybe just rely solely on the th circuit decision but the government the could then come in and say in actuality no there was this evidence prior greenness didn't i agree but if nobody presents anything else at least my my own personal opinion is that in the hypothetical i gave you if both sides decide to rest on the appellate decision itself nobody wants to put on any other evidence i think maybe respectfully i would disagree i think it would be the burden for them to come forward with something and an absence of evidence is not the same thing as evidence demonstrating beyond by a preponderance that you are in fact actually innocent right so let me turn up the volume on judge jordan's hypothetical a little bit and say the th circuit in the one hundred foot boat thirty crewmember scenario doesn't just say that the cooks assistant the th guy john smith not not  just that the government missed it and presented no evidence but in fact the evidence revealed that john smith was in hyannis port when the you know the drug bust went down what then i would concede that that would be a different case where i think if there was a factual finding supported by evidence in the record and again the government came forward with no contrary evidence to you know somehow suggest that alibi was not accurate then you would have a situation where the findings of the th circuit in that prior decision would be determinative or at least would satisfy the initial threshold then putting the burden back on the government to dispute that what i do want to point out though is the th circuit's decision in this despite the number of instances that dr drew and my friend on the other side of indicated kept saying no evidence no evidence no evidence obviously there were several instances where the court indicated that the government had failed to put forward any direct evidence that she will flee or knowingly joined the conspiracy but what i want to point out is the statute focuses on we agree the st element satisfy the nd one he she in this case did not commit any of the acts charged and the acts charged we go back to the indictment in this case that's it documentary three paragraph ten was that dr breaux cause the alteration of patient files as well as therapists notes for the purpose of making it falsely appear that patients began being treated by american theater therapeutical qualified for the services element of the charge was charged with a conspiracy offense i agree with that or is the offense is only that you knew that there was agreement to commit health care fraud and that you knowing the unlawful purpose of the plan joy knowingly and willfully joined in that agreement there is no overt act requirement in this that you that is correct but the statute two thousand five hundred and thirteen dollars said did not commit any of the acts charged not the offense charge not the crime charged so i think it is relevant to go and look as other courts interpret a certificate in innocence of said look to see what the conduct was and whether there was you know any government miscues mean that petitioner had demonstrated that she by preponderance did not do those things i also think the government charges or list acts and indictment which are have no connection to the actual charged offense as a defendant in this sort of proceeding have to prove those as well well i think that might then fall into the nd of those which is that if there were things that were alleged in the indictment that don't amount to an offense against the united states then that perhaps we could be in a bet situation which i respectfully disagree does not control here there we were  the nd of the two alternatives in that case the throws in an allegation that says you know dr blank by the way has been involved in this sort of health care fraud in seven other clinics that he's worked at nothing else just that allegation your allegation government presents no evidence of that allegation a trial what happens well i think under the rd prong of the certificate of innocence statute you'd be ineligible in that instance because you has to disprove that i'm wondering what an act charge means in a conspiracy offense well i certainly don't disagree with you that with respect to the element of the conspiracy that you knowingly and willfully joined the th circuits decision said that we failed to prove that beyond a reasonable doubt however again back to the you know even taking your reading of the statute as as the offense as charged or in your i don't mean to disagree with your  so let's say that an individual dr bruce position same type of opinion government did not present enough evidence to show intent on a charge conspiracy individual presents a one line affidavit that says i never was involved in or agreed to commit any health care fraud offense against the united states and everything i did was lawful could in this instance if and i take under your hypothetical of the defendant did not testify at trial we're not seeing other cities not of innocence you get an affidavit that says i did not do these things no explanation just one line factual statement i did not do these things and everything i did was medically appropriate government doesn't seek an evidentiary hearing can i record doesn't grant one and everybody takes the record as it is all you have is the appellate opinion and the affidavit of the defender who didn't take the stand at trial and when you say affidavit is it sworn under penalty of perjury an affidavit necessarily is for you or i believe you said statement before so i just it can be a declaration whichever way but it's a sworn statement under penalty of perjury i think in the general instance the district court would have to make a credibility judgment there which would require a you don't ask for a hearing the government may not have asked for an evidentiary hearing but there may have been an obligation not for the district court to convene one because she must decide you know however i also assume that there was there an obligations to a spawn thing on the district court to grant one here then no why not he will and why in the us in the high because and i want to point out if you go to actually the reply for the certificate innocence which was the st time before the district court that they asked for it they didn't ask for an evidentiary hearing specifically what they asked for was a hearing so that they could  highlight the disagreement between the parties as to the a political standard and it would clarify the statue and its requirements to me that reads like an argument legal argument on the merits there was no indication she did not attach a sworn statement o any indication that she wished to take the stand under penalty of perjury and be subject to the crucible of cross examination they never asked for that in in fact even in their brief on appeal and here today they have said we don't need to do anything more than submit the eleven circuits decision and willner and respectfully for the reasons that we've discussed we don't think that's accurate there is a different standard between the two and this court's decision did actually elucidate the several pieces of evidence circumstantial i grant you that were  presented at trial that would lead as the th circuit had said that it's possible she should have known about the conspiracy that she made imprudent decisions in admitting patients that she  also was altered medicare files and patient history now i know the district court spent you know some time analyzing the difference between this court's description of that is altered and the government's assertion that it was falsified and said that was too razor thin margin for me to conclude that the government had you know the government's failure to prove beyond a reasonable doubt equated to her carrying her burden to buy  judge jordan gets an answer to his question because i'm now curious about it as well in the posture that he provides you've got this opinion and willner she then files an affidavit an affidavit a sworn affidavit that says i didn't do it everything i did was on the up and up government puts on nothing i guess and i got a time and so a one word answer the district court could grant the certificate of innocence the district court could conclude that this one affidavit outstrips whatever i'm going to try to tease out of the tea leaves of welner in this case no because the district court presided over a trial and heard the testimony of all the other people i took judge jordan's question to be whether a hypothetical defendant who had said you know put forth a one line that i didn't do it and i suppose if a district court could credit that in some fashion and there was no other evidence on the other side in in the hypothetical zero evidence presented at all about that particular defendant the cook on the ship then perhaps that could be the case respectfully that wasn't the case here and now one more question so if the affidavit is detailed in every way you could ask it to be the district court still has to hold an evidentiary hearing to test credibility of you decide you want to stand on that affidavit and you don't want to challenge and you don't want to cross examine and you don't want to ask for evidence you're hearing  respectfully i doubt the government would understand i know you're living and you're living in my hypothetical so and it doesn't always make sense but in that scenario right the district court has to test credibility sewa sponte by holding an evidentiary hearing that you do not ask for with a detailed affidavit now we're moving away from the one liner yes i understand now every bit of evidence that the th circuit opinion pointed to but said it was insufficient she explains and she explains in a way that is facially sufficient she gives a plausible credible innocent explanation for every single one of those x you decide for whatever reason that you do not want to ask for an i think it would come down to whether it was simply a decision made by the district judge based on a credibility determination i believe what this person said or whether their words detailed allegations that would allow the  district judge to conclude that that person could have committed the crime for instance you know i was in hyannisport hears you know my record of conviction where i was arrested for you know being you know a minor in possession without the hall you know something along those lines but if it's just a credibility determination i don't think it just records entitle to make that without an evidentiary hearing so for the defendant to win you always need an evidentiary hearing for you to when you don't need an evidence you know i don't believe so because a defendant could also introduce actual physical evidence i e as i alluded to some record that he wasn't in the ok so at the time what you were referring to as i understood it was say i didn't do this it wasn't in ok so i want to get back to judge knew some question about whether we included that argument in our st initial brief so that's on page thirty two and thirty three of our initial brief what's the docket entry for that open for the brief here in the initial yes here ok got it got it so we talk about the kinds of evidence that we could have brought in from the district court and we write if the district court would like to hear from dr brewer through testimony dr abreu would be willing to testify the district court did not grant dr bruce request for a hearing where these issues could have been discussed in more detail accordingly the court should find that the district court abused its discretion by applying a legal standard that improperly raised the burden of proof on dr brewer because yawned what is required by the statute but before the senate's before that you read it said it would be an act of futility for her to bring any additional evidence such as requesting him to be flown back to miami to testify again other than what was already presented at the trial and then you went into the senate if the district court would like to hear from dr bruce so i mean you did you not then indicate that your opinion was it she doesn't have to submit additional evidence in an affidavit but these are things that could have been fleshed out in front of the district court because these cases are rare they don't happen very often and we could have discussed a procedure whether the judge felt that  additional evidence would be necessary if this opinion on its own was not enough so we did ask for the hearing at the district court level and you keep in mind the way the way the wish decision some circuit looks at this is our initial petition is like an initial pleading you know governed by rule eight pleading standards so you know naturally you would expect especially given rare the rarity of this kind of process that the judge would have a hearing to to discuss what what what's needed to follow up on my colleagues questions  when you file the petition i mean this suggests that you were in your brief you're suggesting will we we could have off if you wanted to talk here from our client you could have you could have had a hearing but right but you didn't offer anything in your petition and now you talk about the pleading standards but the fact remains should you not have come forward immediately with an affidavit of some sort it allowed her to meet her burden of proof to say i didn't commit these acts right then at that point if that was the issue it should have been basically dismissed without prejudice to to allow us to present additional evidence that's how civil case works and that was the abuse of discretion found in a sure wish but our position is still that on its own the eleven circuits finding that there was no evidence of her intent means she did not commit the acts charged which is innocence that's how the statute defines  not commit the acts charged and other courts have included have concluded that x charge mean the crime the conspiracy and as as judge jordan pointed out in the wilner decision that simply performing the tasks on will it on willingly advance the purpose of a conspiracy does not make one a coconspirator and this is the this is basically the reasoning that the judge used to deny the petition using this possibility standard the possibility standard came from the bet's case and bet's was not trying to elucidate a standard of review bet's was merely saying that when a case is dismissed on a procedural grounds like lack of jurisdiction or like some marital privilege it inadmissible testimony when a case is dismissed for that reason then it's yeah it's still possible that there was an offense that there was a crime committed that possibility still open but that wasn't the standard bets wasn't elucidating a standard of review but that's what the district court did in this case it applied that language from bets as a standard which is an impossible standard to meet it's a higher standard than beyond a reasonable doubt because it leaves it requires dr brewer to prove a negative which is she did that have intent she did not join a conspiracy that she did not know existed how how how else are you going to prove that she was there she worked there she did her job that's what the th circuit found and just because she was there doesn't mean she committed any crime that's the jones case he was there in the apartment but when you strip away all the non credible evidence there was nothing left one last point as to intent where where there had been remains before in this type of situation specifically to has been to determine intent that's the police decision sure wish decision and in this case we believe intent has already been decided by the th circuit because there was no evidence so i'll conclude by saying once again we're asking the court to reverse the order denying the petition for certificate of innocence and remand with instructions of district court issue it i thank you both very much really appreciate it