in a certain order in my free for no specific reason but as i think about it i think that the most important one perhaps was the changing of the jury instruction that's a jury was so would you would agree with you know in any event the record shows that you either expressly agreed to using the word commerce alone or by your actions you with you if i i don't think i can agree to it my conduct when i specifically object to do it during the discussion of the matter so are you telling us that what when we look at the record it's going to show d in the discussion you said it and i believe if you take that and strike the word interstate after it and leave it it affected commerce but i think that's about the most innocuous but we can tell the jury i mean that is you being fined taking the word interstate  well i'm sorry that you read it that way the problem is as i see it is i have checked to do it originally and he's telling me i've got one of two choices ok that's it the court the court and follows up on your statement by saying let me if you will for two and a half million dollars and you expect to get it and for some reason the government catches the problem before they pay you you can say oh well you know i bill for it but they didn't get for just what they're what they're that's on the schedule allowance as was then other companies could come in and say well if your billing never kalle for this number that's your usual and customary fee and when you bill last for more you're billing us for more and that's not your usual and customary council isn't your interpretation belied by the guidelines themselves i'm quoting now from it looks like guidelines section to be one point one a little i and this is intended last and it defines intended liason it's as intended last roman one means to area harm that was intended to result from the offense and roman to and this is the important part includes intended to kill any area of harm that would have been impossible or unlikely to occur such as as then a government sting operation or an insurance fraud in which the claim exceeded the insured value the latter exactly equivalent to this computer program you're talking about there would have been no possibility for her to get that but when she billed it just like if somebody tries to collect more than the face value of an insurance policy they're ever going to get it but that was the intent no i don't believe that was the intent your honor when when anybody bills a government agency where there's a schedule of maximum allowances the the government will offer if you understate the claim that if you if you offered some some other formulation you may get you may get some amount less than the maximum that's absolutely true there's a great deal of incentives here to be sure that you're always above the maximum that pay well that's true but of course the fact of the matter is it wouldn't have made any difference if she obviously if you built if you build less than what the maximum allowance was she wasn't going to be paid the maximum or else but the point is by billing for more she doesn't intend the government to pay her the difference between the maximum allowance and what her actual billing and oranges for if i could come up with the answer though before we talk about the oranges well if i can change your hypothetical slightly to indicate that if they said if you lose your garage you get x if you specific maximum allowances for a specific service in my space my specific maximum insurance is five hundred thousand dollars i'm going in hoping maybe they'll pay me a couple hundred thousand more maybe not maybe it's lawsuits the higher figure i don't think you can come to that conclusion i don't think anybody who has a five hundred thousand dollars maximum turns policy no matter how much they they send bills to the insurance company before he's ever going to get paid more than five hundred thousand dollars that's the limit of the policy but you're it you're ignoring are you not counsel the intended last definition i just mentioned i mean i don't i don't understand how you can construe that out of existence that regarding the construction of this portion of the guidelines to tell us why the guidelines either are unconstitutional or why we've misread it well i i think i think they're but i think they're they're being misread or misapplying here i think the reason for intended loss is to say if you build for something and you could reasonably expect to have been paid for it even though you never w claim against an insurance policy in excess of the face of the guidelines speak of something that could not have happened and that's the very thing you're pointing out i think is that there's no way that your client could ever have possibly been paid more than the medicare internal guidelines provide that exactly what this section of the of the guidelines provides is it not your honor i don't read it the same way you do and again i asked before do you have any authority for your position i i don't shape your area edition but i'd like some searches it may be no you're right i don't ok it just seems to me logically when you say intended lost there was some hope on  on the part of the perpetrator that they would get something to which they were not entitled ok where there is no possibility not because she got caught or because it was a sting operation or anything else like that that she didn't get the money but it's that she was never going to get the money no matter what happened and that's my my point on that i would like to go on with the other issues i think a large proportion of this claim has to do with hearing aids and the government did not break down the difference between her audiology license and the hearing aid and as i stated there is a code section  contrary but frankly the way i i read judge garcia's comment as i said in my brief if you don't need a driver's license if you are going to drive i will go on to comment on the things the judge garcia did during the trial which i think seriously interfered with the ability to cross examine and represent my client cutting me off on a number of occasions making comments in front of the jury as i have stated in my brief on a number of different issues you would agree would you not that we're talking about plain error here he didn't object to any of these points and trial when i when i think yes when i ask a question and i'm told you know you know better than that ok i understand your brief is is clear about these points i'm simply asking the standard of review from our perspective in this case is plain error right ok so under that circumstance then in order to demonstrate that the statements appearance of advocacy or partiality if you meet that standard i don't know how i can go into judge garcia's morning and but would be my number just the counsel i understand regardless of that do you don't you bear the burden in this instance to show that that standard has been met i think the standard was met and were in the record can we find anything to show actual bias or that it and judge garcia's tone in stopping me and supporting the government witness when there was a a statement made to i ask a question i ask a reasonable question i've been trying cases for thirty years i've never had a judge stop me and say you know better than to ask a question like that i know and you can argue which i say ok there's no way he's going to be the one who sentencing my client you know there's too much risk involved here just openly and blatantly in front of a jury start arguing with the man but i believe that the number of incidents bear out my position  finally with regard to some of the government exhibits that i've discussed i think there's no question about the fact that they were manipulated in spite of the fact that i objected to them judge garcia allowed them in the evidence and i think when you take that any of these she was doing that all required doctors referrals not one doctor's or for it was actually made all of the doctors were either dead had never met her or had stopped referring patients to were literally years before the charge period dead or she never met them this was never referred so that's the question i actually wanted to ask and understand because it's not one hundred percent clear to me the five positions that were listed those encompass the total of the two million five that put her over the threshold are but the full two point five million plus was based on prescription by five positions that were non existent in her life at that point on right with all those qualify in her life at that point in right and that's that's set forth clearly in the pre sentence report and thousand by that by the district court so forget about the dead patients or the patients from nursing homes who are not provided  services for which he builds but look just at the absence of referrals this is pure fraud now in that light i think that i'd like to spend most of my time with the court talking about the commerce instruction and  this case included was the very language of the statute exactly your honor and that's why i think and we did another review before i came here looked around the entire united states for any pattern jury instruction on eighteen u s c section thirteen forty seven there isn't one there's none and so it can't be plainer to charge in the language of the statute when there is no health care program under eighteen u s c section twenty four b is the third circuit in and that case involved a thirty four thousand dollar theft thirty four thousand dollars of relevant conduct but i think only five thousand dollars a charge conduct from a local chiropractor this chiropractor is being paid by check and it was the practice for patients to endorse the checks and i think their reception us was taking some of the checks and depositing them into our own bank account think that was an as applied challenge that congress had exceeded its power under the commerce clause and the third circuit and this is before rage the third circuit says no this is plainly a gigantic this was part of hipaa which was a gigantic statute that may not include congressional findings but includes some committee reports in a legislative history indicating that congress viewed a fraud and abuse in the health care system as a look at the transcript and decide whether in light of the night circuit strict criteria and perhaps whether it's invited but even under the most relaxed and the best for the defendant standard of review this isn't a mid one of the medical investigator witnesses and he said now medical is funded fifty percent by the federal government as a network or something to that effect there's no way under a neater analysis that the court can be reversed on the jury instruction in this case added to the two thousand and one book and it's been there since from then until zero five which is the book that was applied and in this case i think this is exactly the case of a an insurance fraud claim that exceeded the policy limit there's really to me no other way to look at it but even if it weren't that we were in a two thousand guideline book where we didn't have that guidance from the commission then think of this circus teaching in cooper and that's the case where where there was a contract to dispose of sewage sludge for the city of san diego and the sewage sludge wasn't disposed of in in a way that was specified they were supposed to have compost it but they didn't and there should be absolutely no offset and she really must in order to account for her full capability or full culpability except the the two point five million dollars what's the law you know weather mail prog wire fraud health care fraud offense straddles a change in the guidelines some conduct occurring before some after if the defendant had briefed that i would have as well your honor i believe that in a straddle case when the scheme live believe that it has to be re specifically and directly in the briefs that hasn't been but i do want the court and to understand that it's not working any sort of injustice by applying the guideline that was accepted in the district court  guideline and i think there's any way consistent with that with this court's teaching that from before that guideline  i don't think i have anything more on last unless the court has questions all right the next question is the issue of whether the obstruction announcement applies and this question of california law that counsel brings up that is the whether california business and professions code section thirty three fifty thirty three fifty one point three permit an audiologist without a hearing aid license to provide hearing age services only comes up at sentencing in the context of whether the district court is going to apply the obstruction announcement and so it's worth noting initially that there are three bases upon which the application of three c one point one rested the first is that the defendant testified that she didn't know that or hearing it had expired the second she said that somebody at the hearing at bureau said go ahead and practice because you have your audiology license and then the third and this was  really breathtaking and also material one she said that she had been going around with dr fordham to nursing homes and he was writing scripts and referrals for her so she could do all these things i mean start with dr fordham a doctor is required at every step of this process that is for an audiologist exam or to distribute a hearing aid and that's only in the supplemental excerpts of record at eleven and at sixty and it's in volume one of the annex started transcript it was not clear air for the district court to to make that factual determination the next lie by the defendant was that she said she that her she didn't know that or hearing a license expired in one thousand nine hundred seventy now we know that she knew it in two  two because she wrote a letter to the hearing aid bureau and she was sending letters she was retaking the test the district court also had the benefit of hearing testimony that the expiration date of her hearing aid license was on her card i don't look at my bar card a lot but you know i'm aware that they come out every year and that there's an expiration date i i couldn't tell you the expiration date on my driver's license but i know that it's on there and from time to time it might be prudent to look at it in the context of this defendant's incredible testimony another subject such as dr fordham that she said that the treatment authorization request these aren't the doctors are for us but the preauthorization requests that you need to fill out in order to get the hearing aid or to treat anybody in a nursing home she put sometimes sometimes and type and sometimes handwritten her her hearing aid license number  and she said that that was the software that created that and then said well no no it's the my staff that must have done that right so then you got to end the california application of california law is only relevant within that context and judge the district court judge says i don't believe that anybody from the hearing aid bureau could have told you that you can go ahead and practice because you have an audiology license because that's a total misinterpretation of california law and what california law says is thirty three fifty puts a broad prohibition on any of this is business and professions code thirty three fifty imposes a broad prohibition on the dispensing of hearing aids or performing here and services unless you have a license from the hearing aid bureau and then thirty three fifty one point three carbs out an exception for a licensed audiologist that is you can do some of the you can this is this provision doesn't apply to you if you're an audio but then there's an exception to the exception which is this exception does not apply to you if you are engaged in the business of selling or offering for sale hearing aids now that's exactly the business that that that is the nature of much of the defendants fraud i couldn't tell you for sure if she was actually engaged in the business of selling hearing aids because the only evidence that she ever gave anything to anybody is from the defendant naive on crawford from the from the hearing aid bureau testified in to address the questions of the admitted documents in the comments of the court i'll briefly talk about the documents i think it's already set forth in my brief that whether a document is complete or not it this goes to the comments issues of counsel then wants to cross examine the witness who was talking about a document that was given an incomplete form as a as a government exhibit there's never any question that the defendant got the entire version of the document right so there's no there's no you know we've got to make our exhibits and you know and he gets to make this cross examination and that's exactly what happened that we thought of it that you know there are two that he claims i may take it mr siegel as is not correct about something that's very important here and that is that there were no valid a roof perl's in order to get prior authorization from matic mehta cal one of the documents that susan serrano would have to send to medicare now was this written a referral from the physicians there were written referrals in every one of the files mr renard tried his case and the investigators who were investigating this case and testified never showed one of these referrals to any of the doctors and said is this your overruled i mean for instance on the occasion when i objected to the way mr linhardt was literally screaming at the defendant when she was on the witness stand and i asked the court to stop it and you wouldn't he and that they did not in fact sign these referrals there were signed referrals in every file and there was no proof that those signatures were forged there was no indication that any of the signatures were the anything other than from doctor that she knows of who died you heard and i have heard every all the time on television about somebody taking somebody else's identity all she got was a referral written referral from who said this is the patient and this is what the patient needs without that written referral i mean it doesn't strain credibility to say this doctor has been good for a number of years but we're going to accept a referral from him and that medical doesn't know guide six months ago or ten years ago it's like one of the patients i think it was mr meyers who had died some fifteen years before there was billing for him discuss for just my remaining minute mr siegel's comment that i got the entirety of the two documents that i claim are manipulated that is false that is completely untrue what mr linhardt brought to the court after i have jacked it to that exhibit was an updated version of it not the not the correct version not the one that the  pages had then call it whatever you want intentionally excluded i mean mr leonhardt himself says on some of the testimony that maybe we just thought those that part of it was irrelevant i never got the complete exhibit fifty seven i got an updated version which the judge chose to accept i don't know if the instructions were the same i don't know what was different about it and there's no way to tell and under the circumstances i don't think it should have been admitted with regard to that particular claim detail report were paid fourteen through eighteen were missing well yeah i did get paid fourteen through eighteen otherwise i wouldn't have known they existed but the very fact that they were missing and mr lynn hard so i don't know maybe we just thought they were relevant so we left it out somebody made a mistake in his office and sent me page fourteen through eighteen which he perhaps should not have  done under the circumstances but the fact is they did and then they intentionally omit them from the exhibit and they say oh we didn't do anything wrong i think they did of several things wrong and that was just