right to my left excuse me is my co counsel michael levon i would like to reserve three minutes at the end of my time for rebuttal i want to point out that unlike the previous case this is not a sufficiency of the evidence case is the cumulative error review it requires a big picture look at the evidence that was presented and how it was presented to ascertain the reliability of the church verdict and although it prosecutors opening statement is not evidence it does provide a roadmap to explain the government's theory of the case and in and what evidence was going to be relied on and in this particular instance in this case the prosecutor specifically identified what the evidence was that he was going to rely on he said that the evidence would show that the appellant personally submitted fraudulent claims personally sign checks used in a money laundering conspiracy that the appellant was not indicted for and over a six week period defrauded the government along with his absent codefendant of approximately six hundred thousand dollars now the only evidence direct or circumstantial of any of these facts was the testimony of the f b i agent whitman she was the second witness her testimony was unequivocal she reviewed basically eight weeks worth of bank records and based on that narrow focus of time she concluded and this is what she told the jury that whoever controlled the bank accounts during the money laundering conspiracy was also the person who had submitted actually submitted the fraudulent claims she told the jury that she had seen a store security video for that showed the appellant signing a debit card receipt on february fourteenth two thousand and eleven so based on that videotape she knew that was one sample one authenticated signature using to which of all of the thousands of other signature she looked at were made by him or somebody else however the government pointed out that i thought she did testify very strong the se it should have been allowed to do that exact she did testify based on the signatures from that whoever signed that that also signed a bunch of the claims that's right that's right so the government points out that she never really said he signed the documents she said that the signatures were consistent now using the word consistent that's the kind of verbiage that an expert with use after making a describing their conclusion after making a comparison but it is not the verbiage that a witness testifying as a lay opinion witness who had demonstrated or testified to fact showing adequate familiarity would would use somebody who was adequately familiar with the handwriting would say i recognize that him writing i've seen it before even though they may have never seen the document an expert has never seen any of the documents and they are making a scientific analysis comparing the signatures to come up with i actually agree with you your honor there is no difference the big government pointed out even summarizing in its brief that she she used the word consistent with so they took issue with our argument that she identified the  as the person who signed these documents and they said what she actually said it was consistent with and i wanted to point out that that is consistent with an expert opinion she concluded was not consistent with  think i can give you i can i can explain to you exactly why if i allays a witness and i'm presented with a piece of a document with that i've never seen before and it is the handwriting on that document is my spouse well i've seen hundreds thousands of of examples i don't need to compare the document the new document with all the other examples i recognize my spouse's handwriting i don't have to compare it with anything else she did sure just being more careful because even though even if you would say that's my son's handwriting it's possible it wasn't could have been a forgery well that is true it could have been but she her knowledge was not her testimony was not helpful to her knowledge about that handwriting about that about the whole different problem and it seems to me you know a strong one because i don't know what she was saying other than what anybody else with little something pieces of paper can say but but that is not where you started from well i think that the record made it appear that she was testifying as an expert under rule seven or two she there was no effort to have a qualifier to lay the foundation under rule seven one or nye no one as it lay opinion expert but that in fact was what the government argued and from our position is that the requirements of either rule were not satisfied she did not have adequate familiarity with the writing to be able to get to recognize it and to give a lay opinion so that response to that argument made by the government she also concluded ms whitman the f b i agent that during that eight week period she testified about located mostly in glendale and he lived england and that was her opinion now her testimony her testimony was the background against which against which all look at an awful lot of these pieces of paper and if she did have an authenticated example whose handwriting it seems to me what you're really arguing and it might make some sense except that it isn't consistent the case law is that this wasn't based on a familiarity that was not acquired for the current medication i mean it wasn't something that she encounter in life but that's our case to say otherwise i think that she if she had acquired there are there is case law that looks at a case agent testifying as a lay opinion and i don't dispute that it's permitted assuming that the proper foundation has been laid that foundation under rule nine zero one must consist of adequate facts shoni showing that she acquired familiarity with the handwriting and showing how she acquired familiarity with it and what she can testify that she was investigating a case and that she looked at all of these checks and in the course of the investigation was the same sample that the jury had so her knowledge which would provide her with the sufficient familiarity to hear the lay opinion was not any greater than the jury and that's that's  this you know certainly part of the standard and has to be helpful to the jury and she doesn't know anything more than the jury does i mean do they also have all the other checks before them well they yes they were in evidence but if you look at the record y say you say things really have time to look right she told them what to how to decide the case so we decided the first case in our reply brief which is kind of an analogous circumstance she told to have to decide the case clearly based on the volume of the bank records and other signatures in order for them to make their own comparison and analysis they would have needed longer to come to a verdict they there's no way that they could have looked at those not her bowl to tell them how to decide the case what the big picture actually showed was that the codefendant pursued the prior owner of the of earth and then offering to buy his business they met a few times the codefendant brought the appellant in the appellant testified he was there to help because his english was better the he had no desire no phones with which to purchase the business there is no there was no evidence suggesting to the contrary and the seller of the business admitted he didn't know where the money came from to to purchase his business the codefendant offered appellant to compensate him if he would help out of the business appellant did so from april two thousand nine until a few months later when he left to start graduate school at u s u s c no evidence of any protestant medicare claims during that time the government produced nothing all the fogerty claims were afterwards one of the claimants or medicare beneficiaries rather testified that when she got an explanation of benefits form she called the number was a med and the man that answered had a very thick russian accent she was crystal clear and the only person that could have been left the codefendant and that was in november the testimony about the fake driver's licenses shows that the codefend provided sixteen or more fake driver's licenses to at least one of his coconspirators in the money laundering scheme and a few weeks before then a fake driver's license was used to rent the mailbox as we point out in our brief the bank statements that were not testified about by the f b i agent showed that the codefendant was ready to more boxes in arizona that he rented mailboxes in beverly hills this was part of his use it also shows that on the same day of the heard that he has personally withdrawn funds and other things i would like to just to just take in the two minutes i have left that the there is no competent evidence th to support these imprints is there is there is we believe that our position is that there was a constructive amendment by using this detailed testimony and didn't from the money laundering sting which analysis as far as agent richards is concerned this is the stricken testimony this is the stricken summary exhibits our position on that is that the judge made a decision he struck her testi y stop to stop her from testifying structure testimony as to the specific exhibits and there was no objection or appeal filed by the government under to preserve its rights under brule one of three so the judge is finding that it was prejudicial and he did find that because he was expecting showing that the jury believed that her testimony which he considered to be argument was actually fact there's no dispute that it was prejudicial and it was all presented to the jury exhibits were published to the jury and when you look at the big picture in a cumulative error case you have to look at all of that and you're left with what is the strengths of the actual admissible evidence and that evidence was speculative it was not strong but in particular the the apparent testified and none of his testimony would that would have been found credible but it was found credible they didn't rely on they didn't believe his story about what happened on the way to very common even though the bank records showed that the codefendant had used that same debit card that day at the a t m near his house that's why i said there could have been two of them he used both cars excuse me there could have been true of each card that there's no evidence of that in in the record that they were to that spot would be speculation as well but the f b i agent testified that he was the one who did it was the admission of purported summary exhibits that the court ended up striking and giving a excuse me giving an instruction to the jury to secure the er that case i'd like to first discuss the hand writing issue the district court in this case did not abuse its discretion and permitting f b i special agent amy webmin to testify that  mr to my eyes in on me ferragamo received from beverly hills on february fourteenth two thousand and eleven was consistent or the same as the signature and certain pertinent medicare documents specifically she testified that the signature was the same as on government exhibit four which was the letter that was signed jorge luis to medicare changing the mailing address of the company to that of pack and ship in north ridge and that exhibit has found a supplemental record excerpts page sixty seven and it was also the same as the jorge will be signature on the medicare support for the she any knowledge she has about this is just from her investigation the case that for if she can the the jury can look at exactly the same thing and  because she's testifying as a lay person there her opinion on that subject isn't really worth any more than there says right i disagree your honor and the harris case and the six are cut from this year the court found that in similar circumstances the testimony of an f b i agent that the defendant had signed a threatening letter to a congresswoman was helpful because that person had spent more time studying the case underneath the question of at what point does it become not helpful because her knowledge at and and distorting because there is a tendency even if you say this person is  she was investigating and i suppose it could be that there was not that she was going to succeed there would ever be litigation but presumably it was at least in part for the purpose of setting up a case that could be litigation in testifying as an expert witness did in the way witness case the person has acquired familiarity i mean obviously the reported cases in the eighth circuit in the second circuit in the eleventh circuit in the sixth circuit not being acquired for the purposes of litigation means becoming and they talked about it becoming familiar with the evidence with the course of the litigation and in this case miss whitman became familiar with the known signature through own investigation of the crime and that's precisely how the courts have defined it she became familiar with it because for over two years she studied the unknown signature on the medicare documents on the then acquired for the purpose of an indictment it certainly was not for the purposes of a protest the instant testimony in court which she gave the cases of also discussed in terms of healthful ness under rule seven zero one b but it's helpful to decide because that person has more time and she certainly spent more time studying these matters than the expert but there was and the judge overruled the objection but there was no discussion specifically about rule seven zero one or nine zero one b two either during the trial or afterwards in fact it's any error in any admission of this testimony in this curse case certainly was harmless because says judge first some pointed out the jury could make an independent judgment about this evidence the opinion was certainly subject to cross examination and that's what men was they grossly cross examined about this in fact on cross examination if it was unclear to the jury that she was a late witness it certainly became crystal clear on cross examination on page three thirty three thirty three of the transcript she was asked you're not an expert in handwriting analysis are you in her response was no i just use common sense and the next question was but you're not an expert are you and she said no i'm not so it was certainly clear to the jury that she was testifying as a white witness and the jury put assess the weight is any to give to her opinion and could evaluate that opinion unless the court has any additional questions on hand raining i'd like to discuss the constructive amendment question briefly contrary to what opposing counsel has just argued the indictment in this case in the thirteen forty nine conspiracy to commit medicare fraud met through multiple checks each in the amount of less than ten thousand dollars written to fictitious person the this court date clear in racing which your honor judge gold authored two thousand and eleven that the government is entitled to a deuce proof on the full scope of the conspiracy and that's precisely what we did here h and what men testified that numerous checks adding up to more than six hundred thousand dollars were cashed the check cashing stores table to individuals who had absolutely no connection to or if the met the parties entered into a stipulation that at the end of two thousand and ten and the start of two thousand  blank checks and fake licenses to a women by the name of diana bridgette who was a confidential human source for the government and she cash the checks and gave him the money and that she never met with m during this period said the evidence was amended to prove the full scope of the healthcare conspiracy offense and the arguments made clear that make it tearing was in charge of cashing the checks during the or the me scheme the government never argued in its closing that mr to my scene had cashed any checks or that he brought any checks to miss bridgette the only mention of it was in re because there were no checks that were made payable to him or to mr make a tarion during the course of the scheme i'd like to spend a couple of minutes talking about  which were stricken by the court unless you have additional questions on constructive amendment i do ok the stand your review online the summary testimony that was stricken and the curative instruction that the court gave is plain error and in view of the overwhelming evidence of mr tomasky and skills the instruction cannot of affected the outcome of the trial or the verdict or interfered with the fairness of the proceeding there were ten exhibits that were stricken by the court i believe that six of them related to medicare beneficiaries there were photographs of the beneficiaries a copy of the explanation of benefits and a little strip at the bottom of each exhibit that showed that the mounted had been billed the amount that had been paid the false number that was given to medicare for the d m a that was never ordered by the beneficiaries and never provided to them except for the photographs all of that information had been placed before the jury at an earlier time and the photographs themselves were certainly not inflammatory and could not as affected the verdict in this case the other exhibit similarly with few exceptions had also been placed before the jury in various forms the court had previously admitted the thera gamo receipt the application to pack and ship and the medicare site there's that acknowledgement form that mr signed those were exhibits forty seven and forty eight the only other information that had not previously been admitted was only on exhibit number forty six which is founded page five twenty one of the government's record excerpts and that was the crime weiner the various events in this case the only information on that timeline that had not previously been given to the jury was the date that or  medicare privileges were suspended and that information in and of itself certainly could not have been in slam majority affected the verdict in this case there was overwhelming evid had the appearance of being objective oil was really an error in oral argument and we can say that your honor that it should not have been placed before the jury but it certainly could not have affected the verdict in this case the evidence is to mr  overwhelming from the very beginning he use false identities in this case he identified himself as michael or as michael to other employees of or to met he identified himself was his use of the word jack in two thousand and thirteen in connection with the scheme involving health care corner or his handing over burger phone to miss bridgie to communicate with him concerning health care corner he also in terms of his involvement in the company gave ten thousand dollars cash to mr shipman to buy the company he gave him a fifteen thousand dollar money order at the closing he rented the mailbox to pack and ship changing the address of or committed the testimony was that he was present at the business every day and that he submitted claims to medicare on his laptop computer and that's his testimony was that he went to school from i believe nine in the morning to one in the afternoon or eight in the morning till twelve it was a four hour period however my show vioxx who started an employment company in july and work through her last paycheck was dated in their october thirtieth or thirty first two thousand and ten testified that he was present at the business on a regular basis that went for some claims were made when they were made starting and they started  beginning of october there were many many i don't remember how many hundreds of thousands of dollars during the month of october and they continued through january but she testified that even it in october he was present at the business on a regular basis and that's precisely when the claim spiked thank you very much very much thank you for giving me the additional minute i just want to respond briefly on harris that case which was cited by the government's attorney really doesn't it's not contrary to our argument it supports our argument because in harris the lay witnesses who identified the handwriting gave detailed testimony about how many letters were personally delivered to them by the defendant and that's how they recognized the handwriting they had so much exposure to it is there a ninth circuit a case and the case last year excuse me out gives you the citation to that where the court cautioned against this type of testimony it has to be helpful that is the seven this most or all and many others are there are another circus and they are cited i think the government said it as well as i did with respect to i just want to point out however that a quick careful reading of harris shows that the the foundation and that was the actual objection made a trial in this case it was not objecting because she's giving expert witness testimony it was an objection that there was no foundation flayed for her opinion and that is the proper foundation the proper objection and in fact the the foundation required under seven zero one and i know one was not late and harris does go into what kind of foundation is required is far as it is constructive amendment the allegations