documents was the sole basis for the aggravated identity theft count and the only evidence a trial that connected leds and shadow as to billing of purported medical services to united health care so i'd like to focus on the three arguments we've made related to the lead therapy documents those are number one the court erred by admitting the documents number two the evidence was insufficient to support the aggravated identity theft count and number three the aiding and abetting aggravated identity theft instruction was plainly in around the us the let it therapy documents were part of a series of credential documents that were introduced at trial through a witness named hinz lee and unlike many cases where a business records certification is used to int records and attempt was made through an investigator for an affiliate of united health care to introduce these documents and i'd just like to briefly read the question and the answer that lee's understanding of these current credentialing documents the question was can you tell the jury what credentialing means answer that's a little bit outside of my scope as an investigator but to my understanding providers can submit documentation some providers i guess would submit documentation i objected because he was guessing and then he testified providers to be a nonparticipating provider submit claims and then some submit documentation via fax and that is important d because it is not true and there is no evidence in the record to support that i prerequisite to be able to bill this in these credential documents are you i'm sorry so your st argument is an emission argument but you're not arguing any type of authenticity ri chain or anything you're just saying they shouldn't have been admitted because they're hearsay i am arguing that both so the what the court did was the core error not be before you say both yes i'm sorry did you object on authenticity grounds below because yes so so and and i'm sorry i have just a follow up and then i see promise and did you in your brief and i'm sorry if i missed it did you raise that the authenticity is one of the grounds on which you're appealing and if i missed it i apologize i'm not sure if i were to cumulated that way but but if i could describe the manner this comes in so obviously a lot of therapy document was a significant document it was the basis for the aggravated motions pretrial during trial after trial the so there is a big fight over whether the certification was sufficient to the court ultimately ruled they had to get in through the witness was there or nine o two hundred and eleven dollars certification there was but it was it was an attempt there was an attempt and one that was insufficient because it basically said we certify everything we've given you and there was some question as to whether that it therapy d document unlike every other document in the case did not have a fax byline from miami which is where the billing company was so and i'm with the long winded answer your question or to help the big fight document ultimately comes in during trial and i think the court ruled as a business record by limiting her but you agree that's a hearsay when you use business record you're talking about eight thousand and thirty six and around not an authentic business record certification by stating under oath the same issues so that i don't know but something can be authentic and still be hearsay and something can be non hearsay and no hurdles the government has to accomplish so the my and i may have an imprecise understanding of of authenticity but that it's but the witness said i don't know all i know about this document is that when i asked somebody at united healthcare they gave it to me i don't know who senate how it got here don't know if it got here don't know  to the elements related to the hearsay exception it some point i argued that even though court you admitted it under the business record exception in my view improperly either a statement of the party upon or a coconspirator did it and they made that finding by a preponderance why isn't that sufficient because in order to in this is my long winded way of getting to the authenticity problem because if you are going to admit co conspirator hearsay there is a requirement that you demonstrate authenticity and there was no and in order to do that you have to elements one of those elements is that the speaker at the time the the statement is made is is a coconspirator which requires that that speaker knew that what they were doing was in furtherance of a conspiracy so and that's why the government never attempted to get in through that exception if the government never argued that it was coconspirator hearsay the problem was that but the court made a finding right the court said either it's in miscible either it's a statement of a party opponent which is an exclusion or a coconspirator statement also an exclusion either hearsay the court made that was the court's ruling with respect to after the document was in with respect to the hearsay with the hearsay and that business record and then i also believe that the finding that the statement was made by a coconspirator potentially  clearly erroneous because a lack there was there was no evidentiary basis support the element that requires a finding with respect to the speaker and the coconspirator hearsay rule also requires evidence beyond the document itself with respect to the the elements but just for the respect of whether conspiracy yes i think it's broader than that it  statement must be considered but does not by itself this stablish either of those two things so i think that but the statement we can be statement doesn't establish the conspirators and we know that i'm not arguing that there was not evidence of a conspiracy so what i'm arguing is that the document it's nothing hard in the document and frankly the documents supports d the fact that the speaker participated in the in the conspiracy a in my mind as a trial lawyer these when it comes to business records these are always very close issues and overlapping issues and they don't because the same elements are being utilized but  whatever we want to call it the guy they got in three knew nothing about it and did not the court never ruled on the element which is  easy and that exception which is whether i as the objector can establish that the source of that document was unreliable in these documents all of these  documents throughout trial the the mastermind of the scheme was a guy named still a scotto frequently used other people's identities and information with respect to bank accounts of secretary of state records without their knowledge and the source of this document was i don't think anybody would dispute unreliable with respect to the  other two issues the evidence the adequacy of the evidence i think it's important to point out that there had to be proof beyond a reasonable doubt that linson chavez knew that the document was sent and there was no evidence that the document was even sent regardless of whether or not he knew it but they it but there had to be evidence that he knew the document was sent in there had to be evidence that  the chiropractor tog block had not authorized the the his idea to be used and the factually todd black testified he had authorized it to be used but he said not this correct but he but what he said when remember he was still work when when this document was created in august todd black still working for the jury could accept but what but all t black said was question did you authorize the use of this doc this this your id or not for that but what the proof was as he gives his idea to get him sergio says i never thought twice about it sergio it's used he had no problem with that he knew i was giving it to him he didn't have any it wasn't particular to any you know any clinic any and chavez knowing about this id and aside from law that even if you know the person even if there was proof that someone knew that an id was used the doctor still there it's some sort how how do you argue that they were being used to prove the truth of what this or that the notebook was created by allegedly by yuri at a time when the undisputed proof was the your e d s did not know about the false billing the statements in there according to the witnesses that the government put on  stated that money was being paid to patients for to come to the climax and read those statements as just because they were said to say that which is is what the what the government is trying to establish correct and what they did was they it was introduced and then they would have witnesses orlando rodriguez confidential informant they'd show the document to what does this mean what do you understand that to mean what do you understand that to mean and then closing the government says an relies on the notebook which it claims corroborates the testimony from orlando robbery guess that patien were paid and so it was admitted by the district court on the grounds that they weren't statements is that right so any issue really that the government attempt to get into coconspirator hearsay i thought it i thought it  was in it but but the but the the damage and so the we felt that and advocated that orlando rodriguez was a very unreliable witness he was really the one witness who had any suggestion that lensing knew that there was there were injections being given and he is claiming he testifies that lead ins and participated with him in paying witnesses and so then that's about the that's the only evidence they came in his word so what they use the notebook for was look the guy that was in here for the st week of the trial the disappeared he wrote a note book and he is orlando rodriguez told you look all of these notes in this notebook are corroborating that pain patients were being paid and it was  damaging and we couldn't cross examine on it and frankly we thought it was wrong it's just not true that's not what the what the language in the in the in the good morning may please the court d i'm jay gilbert representing the united states at the outset i think it's necessary to make a point of clarification in the united states brief it mentioned that nowhere does charges seem to challenge the convictions for health care fraud and conspiracy to commit health care fraud those are counts one dollar and two dollars of the nd superseding indictment  in the reply brief mr chavis said in the st paragraph of his argument section that he seeking reversal of the convictions on all counts including health care fraud he has not developed that argument and so it's the opinion of the united states that that has been waived has not been developed and if one takes a look back at the post trial motions mr chavez filed to rule twenty nine motions for acquittal those being on count thirteen the aggravated id theft count and count sixteen the conspiracy to commit money laundering but nowhere in the post trauma motions was there rule twenty nine  motion regarding the health care fraud counts and so to the extent that he's arguing insufficient evidence for the health care fraud counts that's been waived since he didn't make a rule twenty nine motions that affect  the rule twenty nine motions regarding the health care fraud counts also in those rule twenty nine motions in the memorandum supporting them he concedes on several occasions that charge as did commit health care arguing that i wanted to at least clarify for the court that is the united states position that the health care fraud counts one and two are not at issue in this appeal and before you get to the let it  at trial during the testimony of mr rodriguez who mr maher just referred to mr rodriguez was employee of jeff boat and came in and met with chavez initially and talked about united health care and sure ability and then charges referred rodriguez to was cano chavez was actually present the record shows during the discussions that was cano had with orlando talking about having recruiting patients to come in from jeffcoat who were insured by the united health care to come in and then was names it made no it was not admitted as if it goes could be sixteen out of twenty was one of the numbers that could be hearsay it could be to prove that a patient showed up sixteen out of twenty times right so it could be it can't be just that numbers on a page are never statements or that that's true you're out of it has to be taken in context mr course and so that's what judge tranch is asking explain the context that makes it not hearsay yes you're on during trial mr orlando said that he was present when he saw yuri diaz writing in this notebook orlando identified up maybe up i'm wrong i tried a lot of cases end up in to city and hearsay are two different things right it's your are so it's authentic and so why isn't sixteen out of twenty hearsay i don't think that it's in itself hearsay your honor is that the notebook was admissible in the jury was able to draw a reasonable inferences from it and i think taken in context of the evidence in the entirety the jury could take a look at the at the understanding your response to this question correctly i mean sure you can say this helps prove that the person was guilty of the crime but question is was inadmissible a different question whether it and thirty seven is just five numbers but if you then put a witness on the stand and he says well the way we talk to that means i got a new customer for our fraud scheme all right with that then and if you're admitting it for the purpose of showing that he did admit a new customer for the in my hypothetical then it's then i guess it's hearsay is not because it's it's it's evidence that a witness is saying says something that you're trying to demonstrate now if it says something that you're not trying to demonstrate it says you know this is this is how many times this is what i bet on the races this morning or something the jury finding of guilt that's a different issue i just want to whether it's admissible yes your honor well the court found that it was it was akin to a drug ledger and it was not hearsay i understand but his answer is it was interpreted to say these things that were in the interest of the government to prove that there's some hearsay law that says that testimony regarding the meaning of codes isn't i the well the evidence was that diaz did write in this notebook mr orlando talked about the no book and not not only that but the conspiracy overall and so the jury did take it as evidence of the underlying of the underlying fraud yes i think an argument com evidence of fraud and not be hearsay if it's you know if it's for instance the actual item that was stolen or something like that is a statement that you have a witness saying this says then it becomes a statement yes you understand the do you care whether a patient showed up sixteen out of twenty times versus fifteen out of twenty times or just that they were recruiting patients and they were coming and did you care to that as to the truth or just that this occurred just that it occurred your honor didn't really matter the number of times that one cared is to the truth that paphos nine was on it because that was part of the proof of the conspiracy my part of it yes your honor can i ask or we don't this can i ask a different question you in your brief page twenty five quote wade be timmerman cooper in a style this is the jury instruction thing and you say the only question is whether the absence of the limiting instruction so infected the entire trial that the resulting conviction violates due process and i may be wrong but this is a direct appeal not a hey b s case right correct your honor so why don't we always ask whether it was a harmful trolly or regardless of whether or not it violates a constitutional right in other words if the instructions erroneous and then we ask is it harmless we don't ask does it violate a constitutional right that only occurs on s your honor i understand your question i believe the jury instructions have to be taken as a whole and you can't give you any particular instruction in isolation i totally agree with that but we don't need to ask whether it violates due process correct your honor yes i do think that is a question whether the jury instructions taken as a whole adequately set forth the defense's theory and otherwise provided a fair trial assume they didn't set forth the defense theory is that a due process violation or is that just a trial error and if it's a trial are you saying we can't reverse if it's harmful to the defendant honor if it's harmful to the to the defendant if i understand the court's question correctly then it would have to be harmful to the extent that it violated is due process rights and created an unfair trial in the united states position is that these jury instructions some of which by the way follow this accepted pattern instructions were correct and did provide a fair trial when read in their entirety and in context doesn't  rise to the level of due process for us to reverse we do you have any case where we've ever held that in a non hey b s context not to my knowledge you're ok that that answers thank you but regarding the letter credential g documents kind of goes toward well and in fact it does go toward the aggravated id theft allegation which was count thirteen of the nd superseding indictment and mr meyer indicates that that mr that dr black had given his credentials to support credential packets for other clinics in fact the evidence at trial was that dr black had given his i d to betancourt to credential one particular clinic that being med center kyra practic now at trial when dr black saw this let credentialing packet he said i've never seen this before i didn't authorize my id idea to be using credentialing this particular clinic and it wasn't just dr black's id in a credentialing pack the united states never proved the source of the letter credentialing documents doesn't seem to hold water because the jury could have reasonably inferred given all the contents of that letter credentialing document that either chavez with these documents bearing his signature as well as dr blacks or one of the coconspirators submitted this to united health care so that clinics could get paid for the injections never given  course the argument is that liz cano did that without permission or knowledge of chavez right that's my understanding of what mr chavez in asserting he's asserting he never submitted directly but the united states didn't have to prove that he submitted it directly mr less condo was part of the conspiracy and so and the court the district court did not accept the argument that les connell was the mastermind  chavez was just a puppet in this entire thing well in summary your honor yes the evidence was admitted properly the evidence was to submit or to support the convictions here the fire the trial was fair the instructions adequately and correctly set forth the law in the theory of the case and the united states respectfully request that this court affirm the judgment thank you thank you rebut a few of the points that were made on an indicator for we did not move and are not asking this court to reverse for insufficiency of evidence on the health care fraud we are asking court to reverse for a new trial because of the introduction of the let it therapy document which was the only evidence that had any connected legs and chevez in any way with billing because of the as document which was introduced i would suggest for the only reason it was introduced was for the truth of the matter asserted and that was the only evidence they corroborated orlando rodriguez's  testimony just because it's corroborated doesn't mean it's hearsay correct but i was the reason the you my use of the word corroborated is to get to the argument that it's not harmless so it is here it was hearsay was only used for the truth of the matter asserted and it's not i agree with the court's analysis the issue is for instructions for adventure a rose is there an air and was that air harmless in the court mentioned that the the defense instruction and we raise this in the brief in the relationships are arguments about the instructor just said i'm sorry to interrupt you you're not raising a due process violation and last i checked if it was due process a reason that the recitation of the indictment and the government's theory of the case was it was harmful so and then finally on when were on the notion of instructions i do want to note that the instruction that omitted d the advance knowledge requirement from rosemont it's true that was a pattern instruction that was used by the court created in compound crimes that there be advance knowledge of the elements in the egg basket in the aggravated identity theft instruction though you agreed that the cross when it refers to the crime it's the crime of identity theft now but i think if you look at the language that the government relied on which is intend to commit the crime which was identical language in henry but in henry it was referring to the underlying intent that the crime be committed could include for example intending that health care fraud was committed it doesn't say in this it doesn't say intent that the entire crime be committed help with every aspect of the crime let's st look at the crime of aggravated identity theft was committed nd that the defendant helped to commit the crime or encourage someone else writes referring to the aggravated identity correct but that but that language was in rosemont right but in rosemont they were referring to the predicate crime i don't think so i think in rosemont this this language well and henry that i didn't that is the pattern struction language so presumably i don't have the rosemont instructions but presumably there was language similar to that and i don't think that the issue in rosemont was that it explicitly limited the crime that had to be assisted to only the underlying crime i think it was more it was unclear and as the six are going to sell it since the early seventies when you're talking about intent it needs to be specified with you know detail in the instructions thank you thank you both for your arguments that case will be taken under advisement and