in this case involving the anti kickback statute where we have questions about the propriety of a jury instruction and if that instruction was erroneous whether or not the error harmed the defendant the appellant in the case  this was my very st and a kickback case although this is all i do are federal criminal cases i've never read the statute before i knew that there was this issue i read the statute and i literally had to walk around the office and read it again because i don't see the words about one purpose any purpose purpose at all written in the statute looking more closely at the structure of the statute we've got in b one the subsection that's the payee part b two is the pay or b three is the safe harbor but for all of these it's the general structure that we find in any federal fraud kickback you know bribe statute you've got a somebody who's with money somebody who does something and then the thing between them is the money the thing that's different here is in the pay portion which is what we're under the words connecting the recipient and the giver are the words in return for while in the pay your section which is beat to the connection between the recipient and the pay or is to induce so i started thinking what is the difference between that language well induce there's been some cases kind of means persuade that makes some sense in return for though to me seems like a quid pro quo because you know in other words not not a reason the reason d in other words the  idea that you can take one reason out of a one hundred and convicted defendant under be one to me is the antithesis of congress to make it seems to me the problem you have is that the government's assumption that's reflected in the jury instruction you know and your alternate idea how the instruction should have been given are both premised on an assumption that is not based on the  and that is that there has to be some purpose and mind on the part of the payee when and when in return for is only speaking about the nature of the says anything about the defendant's mental carpets agree with you one hundred percent and i started thinking then it seems to me that even loose i disagree because the question i believe that we have today in this case is whether or not the jury was improperly instructed yet but the problem is this that the way the jury was instructed required the government to prove more than the act and the set you know truly required i don't only purpose would you agree with me the instruction that you won it would have been wrong to the primary yeah i think in three thinking that i think that's right i thought about it more i thought i have to admit it's an all or nothing i don't think the purpose should anywhere be told to the jury and you know what we never do this in any other federal criminal case do we for example in the i want to possession the guy always wants to say the reason i had the gun was we don't allow that the lady who's carrying the cocaine in from colombia i only got it because i'm poor and i want to we don't let her say that we don't go to purpose except for this one case and i don't like except being a bra public official rihanna and but but here is why i added on and again we can talk about the evidence and the evidence you know doctor shah was crucified on cross examination he never backed down he said i didn't think i was committing a crime also the guys who said he was committing a crime he had reasons to watch but here's the real reason why i think there look at what the lawyers did with the information the government's opening statement you know we're always taught give an opening part of an opening tell me you're going tell him tell him what you told him here's the st part of the government's opening statement the real issue you're going to have to decide the true issue this is page one  three the most important issue is this was one purpose let me say it again was one purpose of the reason the pharmacy paid this defendant to get him to write prescriptions and the opening statement the judge will instruct you at the law is the end of this case at a bare minimum you will know that at least one purpose at least one purpose of the fifty five thousand dollars in payment was to get him to write prescriptions mister ted i'm going to have you know of that nor to your benefit rather than you yes i guess what i'm really i'm raising the same question that judge crier asked you i think you're dead right that the instruction was wrong purpose isn't mentioned in the statute it ought not to have been in the instructor but having put it in the b instructor i come away with the sense that so what how did it hurt you if the government was required to prove more than the statute required because it's sort of like wilful in this light you know what it doesn't matter because dr shah made it clear remember the jury found him not guilty on account so they had some questions here too but doctor shostak i didn't think i was breaking the law the government the way they argued the case in opening and closing was well it almost doesn't matter if any one reason why he did what he did was to get the money then he's guilty and it sort of reduces the government's burden and here's the other thing to remember about who is harmed who is asking for this instruction it's not the defendant and this is definitely not something that narrowed the government's obligation i would suggest instead this expanded the waterfront that's a convenient way of looking to things mister because at trial eat you took exactly the opposite position he thought that it was in fact broadening the government's ability to consent because you won it and even narrower instruct and then it had to be the entire are you know complete that's right actually that's not quite accurate judge as to what happened at trial i was not a trial counsel but trial counsel simply objected to the government's instruction trial counsel did not propose an alternative purpose driven instruction and that did it and in making the argument about why the government's instruction was wrong wasn't the argument no the argument was simply that it wasn't supported by the case law in the th circuit at the time so i guess i think it's telling that the government wants this instruction you know it's also telling in our case that the the end of his briefs i think are worthy of consideration because this is not something that the defense bar is asking for and certainly not the health care industry they are highly concerned about this you know a way to think about this is you know as i said the structure of the statute is pay or payee and safe harbor if you accept the government's idea the safe harbor has become irrelevant if anyone purpose for an actor in the health care industry is to somehow receive or pay or induce the payment of remunerations or money and i don't see how the briefs are particularly helpful to us at all because again everybody's making the assumption that the instructor got the correct instruction would be one that we now do you now agree would be an erroneous instruction to right but the point that we have in our case today is that we have the jury is told something that has no impact on their decision and the government exploits that by making it their theory of prosecution no it doesn't have any it is not going it has no impact on their decision it requires the government to prove more than the statute requires and we if we assume that juries follow instructions then they actually require the government to do more but didn't drink was nevertheless instructed that there had to be a kickback and then it had to be knowingly accepted isn't that right and they had in and what the statute requires but everything that the statute requires was part of the instruction plus there was this an additional element that the statute doesn't require so that if the jury took that seriously which we assume it did it actually required the government to prove more and the statute required with all due respect i disagree with you judge i believe that the entire premise of focusing on one purpose out of many was to reduce the jury's need to find willfulness i simply have to disagree with that characterization your honor i'm coming back to whether or not there was harm though again as i said the defendant clearly testified he didn't believe he had done anything wrong despite the messages he explained all of them the main witnesses against him had every reason to lie and the hand case we cite mentions that even if there is sufficient evidence to convict that's a different analysis then when we're looking at error we have to look at the record as a whole whether people have a reason to lie whether the evidence is an actual points whether the jury reached a compromise or in a two sided verdict i see my time is almost up and i prefer reserve a few minutes f the government's burden was raised as a result of this erroneous instruction but the thing the point that i'd like to clarify is in the pay or case the defendant's motive and  is exactly right that the defendants motivation does not matter in that determination it's the government has to put forth proof of the pay or the motivation in either case they must prove d that the  willfully d forsee the remuneration in return for writing prescriptions and that specifically at least one purpose of the remuneration and at least one purpose of the payment was for writing prescriptions and that putting it in the pas and actually requires the government to prove that the pay or was motivated to induce the pay so that's that's really just the distinction here and i think was the key here and defense in fact their entire closing argument was a good fit so to the extent that the jury was instructed on one purpose i don't think there was any confusion about thank you jack as i understand the government's position they asked for an instruction that they now concede was error but they say that it was our harmless error in support of that position the united states says and points to defense counsel's closing argument focusing on whether or not there was adequate proof of willfulness and whether the defendant acted in good faith and the government says therefore that somehow shows us that the error was harmless again i think it's worth looking at how the government argued the case they always pointed to and i there are seven places in the record that are cited in our brief in our reply brief seven times the prosecutor representing the united states pointed out how you can find the defendant guilty if you find one purpose so if the defense argument focuses on where is not a problem like this argument a strict wasn't the government's theory that the reason your client was writing these scripts was to to get kate yes and that that's what the purpose was right that was their  what the focus should be in so far as the defendant knowingly and willingly accept a case in return for writing prescriptions all of which the jury has instructed the government has to prove and the government adds to that and the district court instructs the jury in addition to that that's what the defendant's purpose was was to write those prescriptions so reasons st remember this is a case where the united states conceded that all of the prescriptions were medically necessary so we've got that purpose out of the way it's not that he's trying to jack up income because these are all absolutely necessary prescriptions nd when the defense is arguing focusing solely and completely on the state of mind and the government's come back to that argument is one purpose that that doesn't increase the government's burden it reduces it otherwise why would they be arguing that in response to the deference to get the defense claim of no intent to break the law i understand we probably just look at it differently but i think that's the only logical way to look at it look who benefits who benefits from the instruction certainly not the defense why is the government asking for it and then backing off and saying oh it's no longer the law no harm no foul they only a disregard the law how does the addition of this paragraph somehow amount to subtraction from what he had said about the state of mind and the willful requirement the answer is a pages one hundred and thirty three and one hundred and forty four when the government when arguing its case to the jury said let me say it again the most important issue was one purpose of the reason there were focusing on the one purpose language because it reduces their guilt their obligation in my opinion i wasn't the instruction it was the argument of out so that the nd i would have misled the jury it's the exploitation of the one purpose instruction by the government during