case number seventeen dash twenty two zero nine usa versus elaine lovett and case number seventeen dash twenty four one usa vs johnny trotter argument not to exceed twenty minutes per side mr paulson you may as a matter of law we are each taking half of the time yes as a matter of law the pain injections of light a cane index a medicine that were testified to by dr hawkins that she gave to patients constitute nerve blocks under the medicare regulations but dr trotter was sentenced to fifteen years in jail for fraudulent nerve blocks because the government convinced the district court and the jury otherwise the government also in this appeal  to defend the sentence confuses the idea of a conviction with fraud with the calculation of loss in fact they make the same argument if it is in the mood case which a panel of this court that they argued in the mood testimony at trial established that medicare would not have paid any of moods claims including legitimate ones if a move to disclose is fraudulent scheme that's their argument here and a panel of this core in the mood adopted the  concern i don't dispute that statement of law but i'm struggling with how the proof would have gone ian and who bore the responsibility for putting that proof in i'm thinking of our washington case from two thousand and thirteen that talked about if the government's evidence is sufficient to show an impropriety then the burden shifts and the burden goes to those defendants to come forward with evidence at least by a preponderance of the evidence that the services were actually rendered and medically necessary i'm struggling to find that in the record your honor this is that's a great question and i think the government itself provides the government's witnesses rather provides the answer to that here they brought on one doctor from dr trotters clinics which was dr hawkins and she testified that she gave eight to ten nerve blocks per patient but she didn't call nerve blocks right she called them pain shots but she testified that she gave these nerve blocks because they were in pain and she gave them they were legitimate and and the government used that they said well look she said she didn't give any nerve blocks and then they brought in thousands of pages of medical records and they said and therefore because these nerve blocks never happened none of the other thousands was not really the practice of medicine his business was the frog he was going about and your honor in a keast like this so most a lot of the cases are like that right where they have they have empty rooms and things didn't happen you know they're billing for for patients that didn't weren't there or the patients were there because they were getting money to be there this isn't that case in those cases they always put on an expert and the expert always says you know what i reviewed these they were medically necessary they were in oh they have experts to testify about this the government didn't put on any expert they put our they put on dr not a single one they put on dr hawkins she testified what she did about the nerve blocks and then they put on summary agents who said you know i listened to their testimony i was into this has money for patients they also they didn't give nerve blocks as defined by dr hawkins but didn't they also didn't they also put on evidence about  were a very few patients not in the indictment and expressed some concern about that but look at kuzma and there that patient said the claim was that she had received seven nerve  where are you in the shifting burden of proof because credibility honesty capability of testify all of those are credibility and jury questions weighing the evidence that we've talked in the trial but the government prosecuted dr trotter for if you look at it if you look at the jury if you look at the jury verdict for not giving nerve blocks that was the health care fraud was nerve blocks they prosecuted him and if they're going to prosecute somebody for not giving nerve blocks and then they argue it's their burden to to argue the law correctly and we stood up when they put on dr hawkins we stood up and said she's wrong she has no idea what she's talking about and then we put on dr trotter who testified  who testified you know quoting from the manual we didn't put in the manual and the government says well look you you know you could have put on better proof but we're talking this isn't it's an issue of law of whether the regulation  ten minutes whether you've been arguing this is this is the sentencing claim it's a sentencing point is b because so the standard under sentencing is is different from the standard claim you've got to assume that they're properly convicted for purposes of the sun's claim and then there was a conspiracy there was an effort to hide and the question is how much should it should how much loss should be attributed to them that's the sure that's the sentencing issue which is the bulk of your brief that's right you've said as the bulk of your arguments on the sentencing issue focusing on that for the moment as it seemed part of the time like you are giving them the merits of whether the jury should have convicted it it had that tone to about let's think of it in terms of a sentencing claim which means they're guilty for purposes which is that which which means just to interrupt for one second which means they're guilty of what they were of the three thousand dollars a fraud here there's a conspiracy claim you have a conspiracy that's elaborate and set up and convicted that they're hiding what's going on then when you're estimating the amount of loss it would seem to me logical for a court under clearly or erroneous deference to say this much as the amount and not just the amounts of the three people that were used as exemplars what's wrong with that i mean i don't doubt as a matter of figuring out how much we're going to punish you within the statutory range we're going say well we'll take it that there was fraud occurred but then they said but look you have to look at it a coup for medina medina said they looked at they reviewed the record they said there's not sufficient evidence to any of the prescriptions were not medically necessary in here in this case we didn't have that testimony they didn't put on the expert dr hawkins didn't say what she did was not going to and we did and they didn't find issues that were not deliver the patients the policy problem here is the government can't come in and say look you put the wrong doctors on here you put it because that's what the conspiracy is this is wrong doctors on you know on the things and the wrong addresses you can't do that and say and that makes every claim in the fraud that's what those claims represent the it was fixed by the court speculative lee and from our perspective as each defendant and that speculation the court just landed on a number without analyzing anything in regard to the amount of claims that were legitimate or that could have been legitimate because the prosecution it had put forth no the government put forth no expert testimony as as mr paulson just said to make a determination as to all of these thousands and thousands and thousands of pages of claims of over one thousand patients for a number of years and to say that they were all not provided there were services that were not provided and services that were are not medically necessary the two foundations for any fraudulent claim the government never did that and it's their burden to establish that  the fraud as defined by the there's a a note in regard to the comment is i believe it was mahmoud that had said amount of the fraudulent claims the court in sentencing never made it just adopted what was provided by the government which is the total amount of claims that went for not only claims that were encompassed in the dates of the indictment but the claims were also part as i pointed out in my reply brief claims that were prior to claims that were submitted to medicare that were prior to the dates of the indictment in took every last one of them all of the claims data is in large excel spreadsheets and you can hit the sum button in this total mall up at the end and that's exactly what the government did and said there's twenty six million dollars in claims that were submitted without a were all were under the pre review that where everything was denied the government is is saying corral all of them were all of them because of the fact that at the time the doctor tried it was placed on prepayment review prepayment thank you yes it's the prepayment review status and then so all of the claims that were submitted through companies that were  the first one to to do this improper action and then you have the second one for once you're on prepayment review to create all these other entities right yes but i would like to say that  prepayment review is not an exclusion it doesn't say that you're not entitled to be paid for the services that are rendered pre payment review is in when it picked them up every one of them that it looked at it denied it denied everything they denied everything but without any any understanding as to whether or not the services were actually now but then the question becomes what happened whose bar is it once the government has said you are on prepayment review we want your documentation and that's what they did and your two clients gave them documentation which the government looked at in said this is not good enough we are not paying this kline so where i'm struggling is i understand that there is a pretty significant issue with how clear the coverage was to exit how clear the proof was to expand it out but i'm struggling with washington's requirement that once the government has gotten over the initial proof burden then it becomes the burden of the defendants to come forward only by a preponderance of the evidence and show that they rendered services and then i'm looking at the prepayment review claims that were submitted that following the release of metal with more information the government and the evidence before us shows that all of those were denied they were the if you listen if you were to see the testimony of the patients who all testified they were actual patients yes they saw doctor drug or they were treated by doctor drug or they they were treated it they were there because you know you've got you've got claims submitted by that or in the record that show for example submission for psychotherapy under the name of a doctor duca who was a thoracic surgeon not a psychotherapist you've got bills for dr hawkins for chiropractors care when she didn't do that and she wouldn't even have privileges at the hospital so it's not a day and record i mean there is information in there about bills that were submitted i just want you to help me understand what became your job the job of dr and dr and mrs lovett wants all of that information was a and a and you had of record that the prepayment review when additional documents were submitted that you were in adequate so then what your role as far as showing the propriety of the services rendered i believe in this the argument that i made a trial is that from the very beginning when the government sought to admit these records is that they weren't relevant in the government's dismissing my my relevance argument say how could it not be relevant all of those claims were were talking bout the evidence that the court is addressing and i appreciate it is such a small percentage of the entirety there was a bit and that was my objection to trial is the fact that all of these claims that were admitted were not proven to be fraudulent and if they're not fraudulent they can't be relevant to the jury  feel you can see that all of the records showing a creep review on which your client submitted subsequent documentation and were still denied would you not concede that that's evidence of improper billing it maybe it doesn't mean it's fraudulent that's that's the point you're on all of them but the government has the burden of establishing that they are fraudulent not that not the defen shows to do at the sentencing hearing was basically prison an argument that's very much along the lines of the one you made today well i am the attorney that was there and i  have to accept the record that's been presented and i can say that i still get here to the the premise that the prosecution the government has the burden of of its least some larger percentage of the entirety of the claim to get this twenty six million dollars good morning may please the court my name is tom tynan and i represent the united states the primary argument raised by the defendants in their appeal which is that a single line testimony from one of the government's seventeen witnesses at trial was both so vital and so flawed is plagued by a fundamental mischaracterization of the government's prosecution theory at trial at trial the evidence showed the dr trotters first three original practices could trace southfield and try to medical services had all been placed on that prepayment reviewed by medicare as just ranch pointed out one hundred percent of those claims every single one had been denied during prepayment review by medicare which means that the documentation that dr trotter and his bill are submitted to support those claims was insufficient to justify the the bills that they had submitted to medicare  understand that but i am also struggling with the fact that this is a case in which you have four patients testifying as a representative sample of over a thousand patients four patients from one doctor as a representative sample of over a thousand patients from twenty different doctors you did not have an expert that testified as to the relationship as to how that was a representative sample and would enable you to show for all throughout the whole thousand patients did you so know your honor is correct that we did not do not have an expert but i think though most of those cases for medicare have that very expert testimony that enables you to say we've given you a representative sample and this expert tells us that that is representative  end for mation from these people are sufficient to provide proof of the entire conspiracy i mean isn't that the normal methodology so i can't say whether or not most cases involve that expert testimony but what i can say is that that is certainly something that would be except expected when the only allegation in the case is that the services that were billed were medically unnecessary were not been provided now that was not the only allegation this case that was not the only allegation in the indictment indeed a great amount of the the government's case in chief dealt with what the defendants did after all of those claims have been denied the second the second the second or smart of the of the fraud let me ask you how you think you fit under our jones case from two thousand and eleven where the government offered two hundred ten patient files  but the expert didn't testify specifically that all of those files accurately represented all the other files in the case and if that's the standard would your case be reversible under that standard d the district court's finding that because the provider had was in eligible to receive medicare payments to begin with the disc was under no obligation to subtract the value of any isn't that a little bit different there's already been a determination that that person has engaged in fraud and he or she is on the list you just you can't apply you can't ask the government for money anymore you are off the list but here we have people who were on the list to be paid and submitted and so what is your proof burden in that circumstance so  i would agree with your honor in the sense that in triano the provider was excluded which is in this case the provider was on prepayment of you and i would agree that those two circumstances are different but what will here is that the practical effect of what dr tried early in love it did in this case also made dr trotter in eligible to receive payments from medicare because rather than that subsequent conspiracy is sufficient to intel you all for sentencing purposes everything before the date of the first conspiracy in the indictment to the end of the practice so i'm not sure i'm tracking your hours question but i think triano would support the government's theory of loss in this instance where the court found that you did not need to subtract the value of any purported legitimate services so  in but that's because he had already been decided to be on he did not have the opportunity to submit bills here we've got people who have the opportunity but the help me understand what is it about the second conspiracy either in the law or in your argument that would say it would work sufficiently that you can be punished for everything you submitted to medicare well  there are are two things really in the first is that it's a conspiracy to defraud medicare in the sense that it's a conspiracy to avoid medicare's efforts to prevent fraud and the evidence that was put on as part of as part of this in this part of the case was very powerful when it spoke to both defendants intent we had adam barnett as a witness at  trial and he testified at record one fifty six page twenty two through to twenty eight and there he talked about five companies that were created called the ministry of management solutions companies four of them only had boxes no physical location and they had cell phones as a registered number not landlines they none of the owners on paper were physicians or providers instead you had an owner of one of the companies was twenty one years old you had another owner who's convicted for welfare fraud to declare bankruptcy and who identified in the end dr trotters a cosigner on the lease which led medicare to sort of unraveling this conspiracy you had people like the need to mention mitchum who was in a ministry of employee of one of the companies who was sick and never perform any business functions for one of these companies you had one of the defendant's own son his wife agreed to become an owner on paper and then her own son was a massage therapist led to believe that they could use the company to to see physical therapy to put it in sort of like herbs and in the burden shifts for the defendants to show if they choose to do that all of the loss was indeed not attributable to the fraud and in this case the decision was not to shoulder that burden but rather to argue about this fish and see of the government's proof in the first place that's exactly evidence of intended loss in health care fraud cases and so the defendants obviously have and it says if not rebut it which means and can be interpreted to mean that defendants can come forward and  say no no that's not right look here is for example i'm throwing out examples of what could have been done it since you hear a specific testimony where you know certain services repeated that specific amount and then he brought case from the circuit talks about this should be deducted from the total loss of that rule though is not unique to health care fraud cases i think the specific guidelines section that i am talking i'm sorry with that but the the point is that that rule about loss appears in many contexts in which record is trying to apply this in its in guidelines that's correct typically frog context but you know help you know whatever it is that's correct or does it matter they were to conspiracies here and i remember right they think that there was ten million dollars in the first one in fourteen or fifteen in the second so i wouldn't phrase it as two conspiracies it was a sort of two different parts of one overarching conspiracy and it's really important to keep in mind that well that's a that's a different concept and it's really important to keep that in mind because what could have been done here in which the defenders didn't do was say ok i've been put on pre payment review my documentation has been found to be insufficient so i'm going to work to improve my documentation to prove my record keeping but i'm going to continue just met claims to medicare through my own practices and what they instead chose to do was to circumvent that process completely and that suggestion i would submit the jury found that questions t claims are being submitted by all of these other entities to begin with because they would have had the opportunity to submit those claims through trotters original three practices but they chose not to and they chose not to because they weren't actually providing the services if they had been actually providing the services there would have been documentation to submit to medicare during the we do know that dr hawkins was providing some of it she testified i did this but i didn't do that i mean so she testified i was going in i was seeing patients i was doing and now there's this issue with nerve blocks but she was saying i was doing these shots for patients so you're correct in that dr options did say that she did meet with patients  she she did and there are some services include but all of her services that were billed were treated as part of the conspiracy and for the purposes of senate saying credit that's correct your honor and there's a couple reasons for that which is because they didn't actually build the services which she said that she had been providing at trial to build for nerve block injections they build for well when we have that problem with the c p t manual that shows that the numbers that you build for were nerve block nerve blocks that did not require a floor skop and so it is a different category so but tell me why that doesn't matter so it doesn't matter for a couple of reasons the first of all first of all is this c p t manual is a snapshot of one year during a six year conspiracy second of all the deferred it does you would have to concede that it does show that there are nerve blocks a whole category of nerve blocks that do not require the description of force copy and a long time provision and during that timeframe they were nerve blocks subject to payment from medicare so i would agree with your honor that the description of what that one page the defendants have submitted on appeal does say what you're on just suggested but there are there are a lot of problems with interpret ing that to me blocks were actually provided in that case which is because and this is an issue with submitting this one page on appeal where there hasn't been the opportunity to explore this at trial and the reason for that is again it's a one year snapshot  position the amounts could be calculated for the purposes of senate saying before the indictment all the way back as far as you have a record so the claims in this was one point of the did want to respond to the defense think the other one was the for trotter medical services and i think where maybe there's confusion is that the dates that the claims were actually submitted were all during the conspiracy period but where there might be confusing is that they were submitted for dates of service that pretty much every day exactly so they were all bill submitted during the time for the conspiracy you're representing that everything that is calculated in the twenty five million figure for the purposes of senate saying or for bills submitted during the time frame charged in the indict rush your honor and that's my that's my understanding of the record that's my understanding of the evidence that we put on a trial and when mr savage did raise that issue in his brief i went back and looked at the exact exhibits for grace which is government is it one hundred as in for john try to medical services it kind of persuasive what cost me then they're after and reading more to be not as persuaded as i couldn't figure out whether it was an argument that was going to conviction or whether it was going to sentencing was a little unclear to me when you were answering it there were you answering it on the theory that it was a sentencing issue or or guilt issue it in our briefs your honor when you got up and said i'm going to answer the main thing that they're arguing did you view the are you were answering it in the context of a sentencing issue or in the sentence context of a of a conviction issue or just sort of generally i do agree with your honor that the defendants have framed this argument as a sensitive issue and  the way i could see it possibly as a sentencing issue is that it's sort of colored i'm not sure it's it's it's it's a very precise legal argument that it's easy to put your hand on exactly where it fits and what you have to look at but just sort of generally speaking it supports the idea if you accept it that that more the defendants are being credit for they gave services that were properly compensable under the system and they say that the suggestion is that that the kind of services they gave were were kind of the less extensive nerve blocks rather than the more extensive nerve blocks and that what the government is doing is sort of equivocating over what another nerve block is in one part of their case they say a nerve block is this big huge thing in these big huge things never happened and then in another part of their case they are suggesting that nerve blocks could be very little things right and if that's so i'm not and i ask you whether it's so but if it's so then at least provide sort of a background suggestion that there was a lot of services being provided where another reading of the record is not much services were provided and this was all pretty much of a hoax  and it does seem they point out certain parts of the record it does seem like the government's theory is twofold nerve blocks are a big deal and nerve blocks are not a big deal and you started out saying well there's a theory of the government's case and the theory of the government's case is that nerve blocks are a big deal or they're not a big deal are you with me i am with you your honor and i think  i'm hesitant say that they weren't a big deal as we obviously focused on them and that's because we focused on them because medicare had put dr trotter on pre payment view because of his aberration billionaire black injections and so those nerve blocking injections that required all of those precautions and time and were dangerous or is a nerve when used in your previous sentence when you use the word nerve block correct and the government i can see your argument well it doesn't matter it's not a big deal but i want to know what the theory of the government is that the jury could have thought one of either thing and still come to its conclusion because we're talking about sentencing and the  government was at these injections were provided and the that theory there's at least some indication that there was provision of things that were not very elaborate as like her testimony was i did a lot of little stuff but i never twelve and there's a in there long of drugs that i can't pronounce it believe those were those on the government's theory of the case using the words as the government uses them with those nerve blocks or they were not and i believe what  honor is referring to is the topical pain the dr hawkins admitted on the stand and she in the government elicited from her during trial that she had provided it and those looked at the page no matter what the time period for the page applied if you look at that page with those have been nerve blocks on that page things it's hard it's hard for the government to say in sort of isolation from everything else that's been presented a trials to whether or not those were qualified for the press for the procedures that the defense is now saying we're actually given top nerve block then it list six four four zero zero all the way down to six four four seven nine all of those do not include that extensive treatment and  opposing counsel's position is we only build for the use that under this code do not require the extensive treatment so isn't the answer to your question that that that's what the billing was for what dr hawkins described she did so what dr hawkins described and it's important to look at the testimony of the defendants or point you to the exact line of testimony which is that a government was and aqua explained the jury what a nerve block is correct and then you explained the nerve block floor skop a that began on sixty four seventy nine and none of the ones above i just i'm sorry this is judge rogers question i don't want to interrupt but but i think it needs to be said that there klein is they didn't build for the others they built for the first ones so that theory is testimony that are extremely powerful and totally debunked the new theory that is now being proposed defense which is that dr hawkins gave all of these nerve blocks and she just didn't know that she was doing it that is the logical conclusion of what the suggesting to the court and they are suggesting that to the court even though they also suggest that dr trotter was a doctor who wanted to wean beneficiaries off of pain pills and he wanted to do that by making sure by administering these nerve block injections so they are suggesting to the court the doctor trotter hard these physicians to give nerve block injections but the physicians didn't even know they were doing it and in that was effective for his purposes that is wholly impossible in what happened when dr hawkins learned that services were being billed on her provider number she confronted both defendants elaine lovett said did you tell medicare on dr trotter not oh you don't really understand the services that you're giving what it dr trotter say just because you don't know doesn't mean you're not guilty not oh wait a second dr hawkins you don't understand that you're actually giving nerve block injections that was overall evidence of the case at this point will hear from the defendant's counsel and i think i have a number of points on through them quickly and some of these are the same issue we believe in that's right and part of the reason for that your honor is because the district court if you if you read the denial for the acquittal motion it says look they didn't give a single nerve block and they billed for fourteen plus million of them i can equate this because you never gave a single nerve block and that informed the district court sentence it made it so he couldn't get a fair trial so to go back though to stick to the senate saying issues and the senate saying issue is really much the they were they were denied because they didn't receive documents they said they didn't review a single document on the prepayment review and so they deny all of so they weren't high shelly did he not then turn around and actually submit and then they were denied but they weren't they were never reviewed and he hired an attorney to ask why any never found out why so on the policy their argument here if the hospital missed misrepresents its ownership which is which would be fraud but if the hospital misrepresents ownership under their theory every service provided by the hospital becomes a loss in fact they can get that on their theory without putting on one doctor they don't even need dr hudgins estimate they don't need four patients they can count twenty six million dollars loss without a single and that's kind of the introduce the evidence is that they are and why isn't the burden yours because because the sentencing issue is we're legitimate services rendered and those those  spreadsheets don't see a thing about whether they're all they are is claims they don't say anything about whether during his and they are your clients guilty the government has used some of the trial testimony to there was three thousand dollars with a loss for those three patients or one hundred thousand of winning are you i do and they say and and we're conceding that and for sentencing we can see that because that was the jury's verdict but that doesn't mean you know what one last piece if we can focus on sentencing then so i think that that's what we're trying to do but it unfortunately they are intertwined because if you used testimony from the trial obviously to whether intertwined because of the nature of your argument yes the but in sitting through actually say through this trial as i did in participating in the trial the thrust of the government's argument was the nerve blocks it wasn't anything else the government has now said in there in their response that well there is this argument that these sham companies were set up but the sham companies do not equate to loss for sentencing purposes there may have been that the argument irrespective of the nerve blocks but if you understand the way that the question went back track all the witnesses that were called by the government posed to these patients they all said that they were treated they all said that they were that they received pain shot except ms chrisman who said that she did not but the others did testify that they did receive pain shots which is consistent with what their own witness said and dr hawkins said the same thing now that then but what the government argued and used an argument then to promote their argument at sentencing is that the fact that no nerve blocks were performed by i know any of these patients and therefore no nerve blocks were ever performed on any of them but without any explanation to the court at the time this is what a nerve block is or what it may well end up from that just one question if the proof that five new into teams were created and build in four of them had no physical location at all isn't that did testify in her defense that there are methods that medicare instructs their billers to to do and that is when one doctor is you bill under a certain pin for a particular doctor at one location where that doctor may be but a doctor who is another doctor could be at another location and provide services and a different location and that is because the doctors are unavailable or that doctors are not doing under that company that the services were provided it doesn't well there's evidence in the record that those companies who are providing any services that i would say oh isn't there the or at least very strong that is telling medicare the doctor that the services are being billed under is not the doctor the provide the services and here's the address another box where the services were provided there was a significant part of  argument that would kill to side argument that these services are actually rendered ask a question that follows up on this one of a logical or is it or is it not a logical inference that if the nature of the fraud is to continue to create entities that are not subject to prepayment review a an inference permissible that they wouldn't be able to survive prepayment refuse because it would seem to me like if they were able to survive prepayment review they would submit it for that review rather than creating a new company that doesn't have to go through prepayment review prepayment review significantly delays payment for services are being rendered dr trotter had a number of doctors that work for him he had bills that he had to pay it doesn't mean that the services were rendered right but if you're creating companies