government agrees to recommend a sentence any attempt by the prosecutor to influence the court to give a higher standard is a breach the government may not abide by its promise to recommend a particular sentence while also making statements that sort of no practical purpose and to advocate for a harsher sentence in such situations the government has implicitly breaks the plea agreement when it offers to recommend a specific species of government induces the defendant to forfeit constitutional rights in exchange for either st of all are there any cases that involve that situation because what you're characterizing is the government arguing for a you know not holding up their end of the bargain that they would recommend a lighter sense which they certainly did that's li were allowed to do but you know there are two things there's two different things going on here i guess mike mike and i are there any cases that involve that sort of circumstance where you've got you've agreed to recommend a lower end of a sentence for the lower end of a sentence that would be based on a higher a higher amount of money at issue and when the person comes there tries to argue for the lower end of the money the government seems to me should be able to say no we think the higher it should be the higher amount you see the difficulty i'm having and i do see the difficulty and i think and that's the point at which the probation officer going to meant a high and sense based upon the government's range so we're at a point in the hearing where the court is is looked at as you know looking at the government's range and saying based on a probation was just at that point later on of caesar talking about is that at a point where the court could is it possible that the court could have said you know you're everything and still said ok i think that the dollar amount at this point i agree with m madison it's a dollar amounts two hundred thousand dollars or whatever that lower amount that you would argue for so therefore i'm going to rough it i'm going to give them a you know a much lower range than what the government agreed to with that was that had that ship  consider and therefore you know that it's a law shouldn't be what the government alleges the court goes on to say you know i'm having a hard time with that because of the like box and the life i just was used for copying all over and that was a hallmark of fraud and the argument that it doesn't it makes an inflammatory comment that there's a hallmark of fraud and it doesn't provide the district with any new information and it doesn't correct factual inaccuracies and i counsel because you know i'm not a former prosecutor or defense attorney so i don't you know it's a little of trying to think you know i went back and read the record i've put that right you're york twenty and i have stood in front of judges right and when a judge says so this is the same judge if i recall correctly that actually overseeing the glazer trial and you're saying all the government is but that is what this judge was actually overseeing the trial so it turned to me that the judge is actually it is really heard all this stuff right and obviously the judge did not agree with the government's position based on what the not going to disagree with you court as the court you've already said this right i mean that's what the but on staff i think they're linking it with a blank sign prescription pad and if you were to ask any of us and whether whether or not it you know if you if you're investigating a a a medicaid fraud scenario are a blank sign prescription and a lightbox quote hallmarks of fraud i mean i think it is hard to say that those aren't i mean the government's not saying a whole lot of them saying those two things were found there in their home market fraud so that's it's not just a light boxes and the government bought up by themselves it's all it's it's the government only repeating after the courts really pounded on it and linking it was court had remembered the trial and i think that it's there were occasions in the past where the court said i don't really remember what happened to trump i don't think the court remembered the agent's testimony because the court to the court it was one trial and many to the prosecutor it was the witness that had put on a triathlon so i'm not sure the accurately remembered what had transpired at trial who brought up the light let me maybe this will help me who brought up the life box st the cork or across the court read that st and then the defense counsel was arguing well there were legitimate claims here and they worked hard to make this a legitimate operation and the court said well i'm having a hard time with that because of the dogs down like fox and the court went on and on about the lightbox you know and so our point is at that point it's clear he's not getting a l that testimony because the court was saying at the sentencing well there was tracing all over the place that that meant there was no indication of any trace of definite so that was an error but our point is st that once the end of these cases that we've cited the government can't make inflammatory comments that don't provide new information or correct factual inaccuracies and clearly the court saying yes it's a home or fraud didn't give the court new information didn't correct the actual inaccuracies so even if it were true it would have been breach of the agreement under this court's precedents but we're arguing it clearly wasn't because the government put its own case agent on the stand to testify against dr glaser i looked at all the files i know what tracing as if i could just jump in what remedy are you seeking for this sentence the government was advocating instead of the seventy eight dollars but same thing was said would you still be able to then invalidate the police because of what the prosecutor how the prosecutor answered the question well i think in that case there is a question there remedy if you elect to and then there's another argument they were also making with respect to the probation officer recommending a high end sense based upon the allegation that the loss was apparently much greater based upon information reportedly from the prosecutor and the prosecutor knows that it's not true that there were no losses for th avenue over and above the four million dollars offered you know that was the discussion and the p s r that the prosecutor also argues that is please and it's forceful because it was not knowing intelligent and volunteer and here we're arguing on the fact that there are reasonable expectations of parties and a plea agreement is that he will be provided that is and it will be provided a sentencing process that's in accordance with the rules and the sentencing guidelines you haven't expressed just give in the plea agreement and seek polokwane and instead can we get to sentencing the court says it's lost it's been disputed from day one its efforts to sit down with the prosecutor and try to reach  agreement fails then pleading guilty it's just exactly the wrong thing to do for the consulate and i understood your argument on that but i also i mean it's also true that your your client if i basically say i won't you he specifically went into the right to challenge the process unless it was about this number right and essentially what you're saying and he didn't get involve that number and you're saying well he expected that he would get a certain actually is there a situation where you haven't stopped at upper level when you agree to that upper limit then i feel like it's a little bit difficult to say you didn't know that it was possible that you could get a seventy nine month sentence and then it would be based on a process he did li now i understand what you're saying and it just said that incorporating the pleas greenman was the agreement and understanding that he would be sentenced under the rules of the sentencing guidelines and then instead when they got to the end of it the court said you know if you want to contest the matter of law she should have pled guilty seems interested in an argument it wasn't clear in fact that he would be exactly the seam and it would seem odd to the government just to have to sit on its hands when nasim is making all these arguments opposing counsel about any case law saying if there was an error on the sixty three versus seventy eight a lot of the government representations and please don't read the don't read into that i think that it was i'm trying to understand what the remedy was are you aware time when the guidelines are binding and we are no longer in that world and we have been in that world for fifteen years and i think we're the only circuit that still keeps latching onto these clear and convincing in all of these things the other circuits of moved on because the guidelines are simply advisory and so i guess what i'm trying to understand is that you know are there any cases that say breached you know please greenman by arguing guideline calculations one where the other which are advisory  is still true in a book or a world where what really is supposed to matter at sentencing is the three thousand five hundred and fifty three factors and not to be one point one and all these constructs that we still have to go through i'm just curious because i've seen the department sometimes argue that clear and convincing and loss for example should no longer exist because it's been overruled by folk are but sometimes they don't argue that so i was just curious if i have missed any cases on this clear but that where there is a conspiracy and the increase is based on extent of the conspiracy this court has held that it only needs  honor so i'm one of the issues that was discussed was the standard for a conspiracy case and there are six elements of the johnson standard one of them is conspiracy and it is also discussed and the last two are the ones that are then found to apply most often most recently and those two both apply here also in a conspiracy case it's generally found that the reason the lower standard a pleasant conspiracy case is because the extent of the conspiracy has been proven or has been pled and that isn't the case is that something can still be a hallmark especially in combination with something else and not the interest with the not having been you that's that's that's the difficulty you have any reason thoughts about well i understand what you're saying but in this case  court went on for some length about how he was rejecting the defendant's position that there will there was a legitimate operation here because he can't get over the dog on life fox so he was really obsessed with a white fox and instead of taking him down from heaven he's clearly heading for a high end sends the prosecutor encourages him and you know under the hood johnson the morality heredia standards it wasn't new information it wasn't correcting factual inaccuracy it was something inflammatory that encouraged the district court to go higher rather than to walk back and the agents testimony in the place or trial was that she had scrutinized all the th avenue files you know what tracing eyes she couldn't find it so i think that that makes it a breach that plea before trial that he believes that he had cried litigious legitimate services four days before his death and saying he tried to withdraw his plea because he said my attorney has not contradict and i talk to the single one of my patients to determine that i actually provided legitimate services do a bubble for both to do that also so how's that sound to me have your other actually mr robinson and i have talked and will each take ten minutes with me going st if that's concern here is that dr glazer didn't get a fair trial or a fair sentencing for a number of reasons it was partly because there was navigation of judicial control and life in the alternate jurors it was partly because the court address but i do want to touch on the cumulative prejudice and just make clear how these things all ended because the error is to really get or twine and add to each other st to have the errors that undercut the defense attack from the government evidence the theory you have the agents opinion that there was no evidence of tracing that under the defense explanation of probably one of the most damning pieces that evidence dr blaser signature being on these blank forms you have the exclusion of evidence of legitimate care that undercuts the challenge to what the government called the theory a quote simply line of fraud and you have the exclusion of a medicare hospital regulation that under cuts the defense challenge to the testimony about medicare regulations then you have a series of errors that undercut the credibility of the most important defense witness dr blaser st to get put in the position of calling elderly sympathetic patients witnesses they weren't telling the truth that's been found just by itself to be playing in error and three of the court's cases but there's more here you had his own business manager saying the evidence you have opinions about things that are quote red flags time with little or no explanation about why or how they're red flags just basically an opinion that their show is guilty you have this education all of those things your honor we're here is for the reasons that i've talked about the government says to you so take as the evidence was overwhelming evidence was overwhelming for one thing if the evidence was so overwhelming why did the jury acquit dr blaser of what we know it's not overwhelming at least anakin and look at what the government points to your honor let me talk about why it's not overwhelming they point to the void o'brian inside cooperating witness well i don't think the cooperating witness is ever going to be overwhelming because any cooperating witness the defense can argue she's saying what the government wants to hear you had the patient witnesses but the patient witnesses were contradicted by d you have these duplicate e k g s their e k g that if you put it right next to each other your see that of it they're the same which is presumably what the agent did but dr glaser would have been putting those together one by eleven dollars aided by each other he'd be seeing them on different days and different appointments you have a large percentage of her furl said th avenue health care which the government makes but frankly i find it perfectly plausible that a doctor will have a preferred provider they think this is a good health care agency and they're going to send lots of their patients there is a pattern of fun transfers that the government says this is vicious that's not suspicious that's a pattern you might expect if you have someone  financially backed up by someone else and they don't have the cash flow so they pay them the money comes in and in fact that's exactly what the business manager testified said was going on mr god if i can just jump in because it seems to me involved in a sense is there at jackson versus virginia or do you mixed in with cumulative there so let's say we think that the judge did make mistakes a b and c not enough to maybe on their own reverse a conviction but if we get to the jackson question and we think that the evidence on marino was really close can we look at is there like a cumulative jackson analysis that more well your honor i have a thought about that and i don't want to tread on mr bear and look at what we have here st of all we have prosecutorial misconduct of the improper cross examination which three of this court's cases have held as plain error by itself but on top of that we have all the other errors and your honor i've listed i think six or seven or eight but frankly with cumulative there i frankly think you only need the improper cross examination and you certainly don't need all of their those years i've argued to find adds up here remember in my kids there's also the problem with the alternate juror selection and that of course would require a reversal regardless of any cumulative there it does depend on my argument that it's a structural error but i think when you have this sort of abdication if you just control it really yes i mean see what do we have we have basically three members of the audience been delegated to select the alternate with no idea of what sort of standard they use that's if the induce the providers to file these false claims that she had any knowledge nevermind prior knowledge of this discreetly pled scheme the billing scheme and what the government did with the when she was interviewed by by the agent warren she said that she knew there was something wrong or at least she lied about her involvement as a marketer and that coverup so far as the intended to the fraud evidence necessary to support a claim of health care fraud where i think this court can determine that there may be a combination of insufficiency legal error is the intent to deceive that ms marino was acting willfully and knowingly because when she was interviewed by agent lee after the earth excuses search warrants she lied about her involvement  problem and charged forty to conduct if you will this jury was asked to convict ms marino based upon her deceiving and about her involvement as a marketer they could have returned a guilty verdict against ms marino for that deceit but that's not what  and forty seven calls for an intent to deceive or cheat with respect to false claims big money or property from the from the medicare system there was no argument is more favorable in this merino but the fact of the matter is given the state of this record and most importantly given the fact that the government abandon any claim that any argument that ms marino knew about or somehow facilitated these false claims emitted to medicare we don't know the record isn't clear on what theory this jury relied on in order to convict ms  and because there was a general verdict in this case and we do not know what theory this jury relied on in order to convict ms marino but the arguments made by the government in combination with the erroneous instructions by the court is insufficient evidence there's also a construct of amendment if you look at the manner in which the government argued this case both in their answering brief and in their intent to deceive and therefore she's guilty of health care f done this type of marketing for other businesses since she's been in the united states when the government had the opportunity o'brien the so called insider to ask what did you talk with ms reno about with respect to the billings of the of the of the clinic and even asked that question because they knew there was no evidence to support that i see that i have two minutes left and i'll reserve that for a vote on this the court has an advocate for your client could you please tell me what what moreno thought exactly should thought she was doing and what she either didn't know or didn't think she was doing if she knew that she was recruiting people who may be medicare beneficiaries who may receive services at the clinic and from those services she would get paid money that's what she knew and there and we conceded that a trial took no different position but in two to answer your question just a bit more broadly   st marina recruited those patients not based on any known or perceived need for medical care but instead on their access to medicare funds stack and she was paid not by the patient but by the service and only if medicare pa for the service rd the government had an evidence from which the jury could have concluded that she was aware that the doctors prescribing treatments of the patients evidently did not meet and so forth she participated in a cover up in a manner consistent with the argument about that will share i don't know if i know you know somebody goes to a doctor and they get a wheelchair i don't know if i have the judgment you know whether that's medically necessary struggle more with it or if they're getting something that they if they're actually getting something but arguably it's medically unnecessary that's hard for me to see how the government is proving that that person knew that there's medicaid fraud if there is if there's evidence that marino or even o'brian new stuff was being built or that actually wasn't happening seems to me that would be evidence you rely on but i haven't seen that in i don't see that evidence in the record so if you point me to some of that person would know that there's some sort of broad going on by the fact that the doctor wants you to sign forty seven things you know maybe and what more efficient for the doctor's office then maybe or you should find by i thought about that and still hard for me to see how that necessarily is evidence of fraud will share a thing i'm struggling with because it my thought would be a government your plan for a lot of stuff that i'm not sure is necessary but i still don't know i believe you know they think the government's yeah i guess i'm just thinking like programs you know you get so much you know voter so much cheese so much cereal all these things you get these things and so on your average person that prescriptions from and at the same times knows they don't need them like if she went to a public park and saw some people playing a pickup game of soccer and deliberate ignorance getting back to judge pendarves question when you have marketer plus a jewel instruction that seems to be cutting it very close and so the idea that basically if you're a marketer accepting kickbacks plus jewel equals health care fraud and i'm just wondering are  saying what the government wants to hear because she wants to get a better sentence that may be evidence that's sufficient to get pax jackson vs virginia but it's not overwhelming evidence that makes error not plain or harmless  family members and doctors that were referenced they were only have only about two or three or maybe four patients had family members and doctors in there and at least one of the doctors his testimony was particularly vague about whether he really most typical business arrangement but you had a business manager who came in and explained it so i don't think you can call that overwhelming evidence where a jury had to accept the government's theory of it and equally val this for you and you pay me back as the medicare funds come in so you're able to pay me back that's totally consistent with the evidence and also consistent with dr glaser's innocence if event he said and is doing all this  on fakery on the sly without letting him know about it including using the the tracing with lightbox to trace signatures of his son on forms so it just seems to me that yes everything the government pointed to is a reason i can't come in and argue jackson versus virginia insufficient evidence but it's not something the government can use to say these multitude of errors were harmless and or didn't affect substantial i got a clean bill of health and left and there was nothing other than just a visit charged or or this goes a little bit i guess with the government's theory that you should have you know the market or should have known that the defense wasn't allowed to put on that evidence and that's one of the errors that were raising and that's really critical here because imagine this practice going on over six or seven years imagine how many patients came in and imagine the suspiciousness of the government pulling in records and evidence about just twelve or thirteen of those patients out of what must have been hundreds maybe one thousand or more and that's why the exclusion of the legitimate medical services was problematic here because the government the government's whole theory was that everyone was fraud but the defense didn't get to put on any contrary evidence so that's my thought on that  i don't have any more questions just cool thank you that's proceed to mr ruff thank you there was no evidence that ms marino  knew about any of the billings knew about any of the method in which the billing took place the government had the opportunity by putting those who are the o'brien on the stand and asking her specifically the type of questions that you've been asking my colleague from the government about what evidence there was that ms reno knew about this false billions if i may with respect to judge van dyke's questioning about what is medically necessary that was part of the theory of the government's fraud case some of these bills were for services they were not medically necessary as defined by the medicare regulations the government had to on the stand to describe what was medically necessary under those regulations and what wasn't and it came out very clearly that these medicare regulations apply differently around the country what is medically necessary in new york city may not be medically necessary in cheyenne wyoming and that because there are so many times with respect to the reimbursement for those services there was an internal fell a process by which the doctors the providers  ld good litigate in that framework what was medically necessary and what wasn't the reason that the government's arguments in their rebuttal primarily where they collapsed deliberate ignorance and this lowered willfulness standard to make  it to make the argument that well she should have seen that there was something going wrong and from that the jury could extrapolate that she's guilty of this discreetly indicted healthcare fraud is what's wrong with this prosecution may appear to be innocent conduct to the lay person when we're dealing with regulated criminal conduct to prosecute them under that theory ensnares the innocent and so again for that reason along with the other reasons that i did in my in my presentation in our briefs the government didn't prove and they had every opportunity to do this but they never did that ms reno knew anything about the billing knew anything about medical necessity or had any real connection with dr glaser she didn't even know him she was a marketer and that's it and for those reasons the court to find there was insufficient evidence to support the discreetly health care  fraud in this case and if not that this in this prosecution was on a constructively amended prosecution that did not comport with what the grand jury had return activity post the execution of search warrants and again she's charged as an editor of that or in the government must prove before she engages in the conduct to facilitate the crime that she had an opportunity to leave because she knew that it was illegal and this point and that concern that he couldn't put in evidence of legitimate services that were covered with these patients what it means if there were a lot of different steps in the us so you had to have the market or you had to have the doctor you had to have the home health care you had to have the just that durable medical criminals it's the streamlining it's not that the that there can never be an individual lined up fraud to cheat medicare out of millions and millions of dollars it's i think crystal clear from the record in this case that the government's theory was that everything in there was fraud and that the witnesses that she referred to were actually character witnesses and in one instance the witness said well he shut the door when he saw my mother which rebutted very well brian saying he always left the door open but i don't think that court excluded evidence of legitimate