right we have several cases on the docket simple argument we'll begin with because number sixteen three zero nine three three nine states of america versus tray three richardson brown is may please the court your honor as mrs brown's lack of knowledge or a lack of understanding her actual ignorance of  situations where there is feigned ignorance this is not one such case your honor this case was replete with indications that mrs brown actually did not know about the elicits game that was taking place here i have a preliminary question about this sufficiency challenge you're bringing is it just to the conspiracy count because looking at your brief page thirty two the evidence was insufficient to support brown's conviction for conspiracy to commit health care fraud then in your conclusion you say the court should reverse the conviction and enter judgment of acquittal as to that count recruit that's correct and that's the only part that we were excluding from that but as i was indicating there were just a number of indications  that that this was an actual light of knowledge type situation first of all i want to make it clear that there were no witnesses who ever testif that mrs brown told them exactly what to do in terms of some kind of criminal behavior that just did not happen and in it's almost inconceivable that you could have  a multi million dollar type enterprise where the objective is to accomplish something on lawful and yet the alleged ringleader of that conspiracy them and she she believed that she could pay them a commission she was wrong about that but she went out and she hired them she paid the commission and she actually brought that information to the attention of the authorities but there was at least a conversation when she hired she she she did hire them specifically telling them that i'm hiring you with with the understanding that you're going to go out in and  medicare beneficiaries but you're on it that is insufficient by itself to indicate that she had a criminal mind at that point that she had knowledge that they were going to actually go percent she did know that miss but teased was filling out the form but it was her understanding and she was correct that dr hunter was actually signing the form so what that indicated to hers is obviously that this is an authorized prescription because even though miss bitties is saying dr hunter doesn't have the time to complete that form i'm filling it out dr hunter actually signing the form and you could not look at the form itself in form any opinion about whether this was a fraudulent prescription and that you simply could not do that on the basis of the form itself now mr t s also had a romantic relationship with dr hunter she and dr hunter have their own independent reasons for wanting to do something illegal now that information was never brought to the attention of mrs brown she did know about that there were there were just as as i've indicated there were many many indications here that she was not aware of what's going on and that she was in fact totally clueless about how these people were carrying out this thing even if you're right that there were there was evidence to support a finding that she didn't know under the deferential standard of given the jury's verdict we have to uphold the verdict as long as there was also evidence from which they could reach the opposite conclusion so why have you got the kickbacks which are themselves evidence of fraud also because you normally wouldn't need to pay people to get patients pays right medicare requires co pays the patient has to pay for their twenty percent because that indicates they really need these wheelchairs or other products you had the arguments the government makes about the fact that they were basically ordering braces for person's entire body and you had the exorbitant profits that were being made on some of these brace devices you know where she was paying twenty bucks or something for him and billing hundreds and hundreds dollars so why go putting all that together given the uphill battle you face given the jury verdict why couldn't a jury conclude she did she knew well your honor i maintain that that there were so many other indications that she did not know that that it it really it counteracts some of the things that you're you're saying there but this goes directly to this question of the deliberate ignorance the jury instruction that instruction was inappropriate because there was not substantial evidence of actual knowledge in this case and there was virtually no evidence whatsoever that of conscious a conscious effort on on this is brown's part two or void knowledge of what's going on what about when the consultant came in i think it was two thousand and seven tells  there's all these problems for five things that you need to be doing differently and then it goes on for at least another year without addressing any of those concerns you did she did bring in the consultant which and in and of itself suggests to me that  and it certainly argue that to the jury it suggests that that she was doing what she could to find out how to improve the business now she did get information from the consultant but she handed that information over to someone this is brown this is something that's unlawful and if you continue to do this you could get into trouble she never said that mrs brown thought that she was doing the right thing by handing it to the people who are actually in a that clear mrs brown did what she could in terms of passing that information to the right people you are this is not this is not the every day case mrs brown was not there now i'm not saying that she should not have been there she should have been at her business but that is not criminal that is negligence that's lack of due care if she was not there doing the things carefully that she should have done she should have done a lot of these things more carefully there's no question about it but she did not and she fell short of the standard now that is not that is not a criminal standard that is a standard for a civil matter she also brought to the attention of the authorities things that were going on in the business she talked about this as and s that it was another marketer a lady who apparently forged the signatures of two doctors mrs brown actually medicare said we're stopping payments so you know she's being looked at and i think it was a few weeks after that that she said oh i've got this bad recruit or a marketer out here mr sosebee even though she knew she knew before february of zero nine about this problem  this market right she she knew i think in and march of two thousand and eight that this was going on she brought this the to the attention of some local authorities and then she hired an attorney who who actually wrote a letter to to the medicare authorities and it was it was brought to their attention in two thousand and nine but again your honor does one bring to the attention of people who are looking at your your organization that kind of information if you really want to hide all of these these terrible things that are going on which she did not know about and i guess it goes back to what i say about competing inference is one inference  es she didn't like what was going on the other inference is because she waited a year to report this until she knew medicare was on to her that she was just doing this to try to to to get out of trouble only after she knew she was in a judge her  a co op aeration with with these inquiries and all predated that particular correspondence that you're talking about she was always every single witness who testified about whether she cooperated or not made it clear that she did cooperate and she was fully she was forthcoming with all the information that they asked for and again i go back to the actual ignorance or the deliberate and indifference charge you're on to that charge was inappropriate because that kind of charges only appropriate when there is substantial proof of actual knowledge and and there was even the government seems to suggest that perhaps even if there was not substantial proof of actual knowledge there were some other things well but that's the critical point if if you don't have substantial evidence of actual knowledge then it's not the action of the deliberate indifference instruction that applies in that case you do not use that instruction where it's simply a question of competing inferences about whether there was actual knowledge or or a person who was simply ignorant of what was going on or stupid that that's the language of the of the court cases it talks about stupidity or ignorance versus actual knowledge and it does say that and that just did not happen here she didn't conceal information she she didn't fabricate information that those of the the kind of things that one would normally expect of someone who is aware that that he or she is engaged in criminal activity they're going to to do that kind of a pivot and they're going to conceal they're going to fabricate  as i indicated mrs brown volunteered information now also the marketers went out of their way to make it clear or at least not to raise any red flags to mrs brown they could have done the things that they did right there on the premises of psalms twenty three not one of them did that kind of thing not one of them brought to doctors and not one of them made a disclosure to mrs brown or someone working for mrs brown you know these are all bogus prescriptions the doctors are just signing anything that we put in front of them they never ever said that kind of thing and they could have brought their paperwork to the premises of the business and they could have filled out the paperwork right there in her presence and they could have signed the doctor's signatures the very fact that they went and got a doctor's prescription mrs brown didn't know that the doctors in the marketers were working together to to to give the appearance that this was a valid prescription if this was simply a just a massive scheme involving mrs brown as the langley's are and the court will note that i did object to the the four point the four point enhanced meant for kind of ordinary case that you have where where a person involved in the health care fraud scheme is simply directing an organizing orchestrating the activities this is something where a person who actually had no knowledge of what was going on was in a position where things were going on and without her knowledge and they endured to the benefit of the company but but it's not it's not criminal activity thanking to do it when i get back up for battle is what i'd like you to consider because what you've done is you made a very compelling argument except my something is it please the court william glasser for the united states the critical thing to consider in this case is the deferential standard of review that applies to the jury's verdict and this court is not even considering this case under the jackson versus virginia standard which is itself that that standard is only met where the record is either devoid of evidence or the evidence on an essential element is so tenuous that a conviction is shocking in this case miss brown cannot show that the evidence was so lacking with respect to her intent that she could not be convicted of the health care conspiracies or the underlying substantive counts which i think there's some confusion as to whether those are challenge but the government's position is that the evidence was sufficient with respect to all of them the evidence of her knowledge turns on a number of things but i think the most important thing is the visit from the consultant in fall of two thousand and seven miss falls came to the psalms twenty three brown's company and specifically told her a number of problems with the way that the company was doing business she said that it's you're not allowed to pay for referrals you're not allowed to waive co pays you need to have an occupational or physical therapist to make sure that these things that might be prescribed by a doctor or doctor actually fit the beneficiary she pointed out that the benefit one beneficiary for example had received both a power wheelchair and braces for his entire body she pointed out that psalms twenty three was billing for bilateral braces that is braces for both sides of the body when the prescriptions that were signed by these thirty doctors only called for four braces on one side of the body she pointed out to mr brown that there is no such thing as an authorized a skit the medicare doesn't recognize that and she pointed out she actually showed mr brown on the computer that sums twenty three was only billing for the most expensive codes there was never there were never cheaper braces or cheaper wheelchairs that were given to the beneficiaries so regardless of the other evidence in this case and the other evidence is substantial for example ordinarily one would not need to pay a doctor for prescriptions as was the case a in dr with dr kirkpatrick one certainly would need to pay the doctor's mother as was the case with dr kirkpatrick but regardless of all that ever evidence mr brown was put on notice upon miss falls visit in fall two thousand and seven that she was billing medicare in appropriately did she make any changes after that didn't really come so no your honor and in fact all of the counts the substantive counts charge in this case came after that visit more than a year after that  so even more than a year after that visit in fall of two thousand and eight through the spring of two thousand and nine mrs brown was a business continued to bill medicare for these inappropriate items so the evidence in this case was more than sufficient under the jackson standard but certainly even if this court considered it a close case it wouldn't meet the manifest miscarriage of but you're conceding that none of them are going to testify that they told her anything about their illegally that's correct your honor it very none of them those that testified did not say we specifically talked about how this was illegal our miss battista did tell miss brown that she was having her fiance sign her fiance dr hunter signed the prescriptions because he was quote too lazy to do them himself so she was filling them out she was also filling out these progress reports which medicare requires and she was just having dr hunter signed them because she said he was too lazy to do them himself and she told that to miss brown so certainly there was even if she wasn't told by these marketers that they were engaging in illegal conduct a the jury could infer that mr brown knew from the statements that were made which were some of the recruiters charged  honor many of these recruiters of actually pleaded guilty in other cases one of them miss thompson was actually charge as a codefendant in this case and this court recently concluded that those charges didn't violate double jeopardy so she's going to most likely be having a trial if she government didn't get it if i were testimony from from any of the recruiters your honor favorable testimony yes but the they testified to what they were doing and they testified about these conversations that they had with mr brown but there wasn't any testimony that we specifically said fraud they didn't they didn't testify that we we both had this understanding that we were violating the law but they did testify that mr brown was aware of what they were doing well aware of what they were doing what do you make it aware that they were obtaining these prescriptions from either from doctors or in the case of dr kirkpatrick that she was writing these prescriptions herself so miss brown could whether even if we don't have direct testimony that we discussed fraud mr brown was aware that these recruiters were using their own doctors to obtain these prescriptions and from the face of the prescriptions themselves from the fact that sums twenty three was billing for things that weren't even included in the prescriptions the jury couldn't further miss brown had knowledge that the recruiters were committing fraud for example another one of the recruiters miss temple she told she actually would contact psalms twenty three to make sure that a beneficiary had medicare part b before she actually went out with her doctor dr cottle's to quote unquote write them up so she would actually it was clear to miss brown that miss temple was only generating these prescriptions in order to bill medicare and not because of some medical necessity your brief says in strong terms that medicare doesn't pay for these full arthritic cants that the company was billing for and i know that's how eventually the company came under scrutiny but but i f it's not true and permissible charge under medicare why was it being paid for all those years your honor my understanding is that this was something that medicare sort of real honest around the end of two thousand and eight where they started to see consistently all of these braces being paid the break the individual braces are things that medicare will cover if there is medical necessity is a bill together or just individually your honor they were building to vigilance so you would you and you would put in a code for each one of them but medicare realized that all of these codes were being used in conjunction and so these cases cropped up all across the country around the time so it is now the computer system have something that will flag when all these are getting billed for the same beneficiary your honor my understanding is that's how it's supposed to work and there's there's constant auditing on the part propped part of medicare they actually hire contractors to do this to look for patterns of billing that raise suspicion and in this case that's exactly what happened and how they discover the fraud another question about medicare procedures when the amount of medicare allows to be billed for these wheelchairs must be it must build into quite a bit of profit because it first of all it assumes twenty percent is going to be paid by the beneficiary as mrs brown wasn't getting that twenty percent so she was only getting eighty percent of the price that medicare recognizes jews also paying i think five hundred dollars for those to her recruiters so without the twenty percent paying five hundred dollars she was still making a good bit of money i mean that there must be a really high profit built into that your honor i don't know what the underlying costs for her was of the wheelchairs but in her case specifically she was billing not only for the wheelchairs but also for many of the accessories so sometimes there was testimony from that sometimes with accessories these things could bill up to ten thousand dollars ordinarily the wheelchair itself is only five thousand dollars but the high profit margin is a significant problem and the reason that again there are many many medicare fraud cases around the country that involve power wheelchairs and i can't speak on behalf of medicare but i would hope that there is a continued effort to to rein this in if the court has no further questions on the other issues raised i'm happy to y your honour's a believe that the the government has come very close to the point of saying that there was no direct evidence of actual knowledge and that again is is one of the key points that we make in our brief that that in the as absence of substantial proof of actual knowledge that deliberate indifference instruction is inappropriate i'm confused on that because i thought the deliberate ignorance instruction we say she should be given when it's not an actual knowledge case when it's there is all this in dishing of wrongdoing and you blind your eyes down the case to say that it's harmless when all evidence of actual knowledge that given the instruction is harmless then with the absence of actual knowledge and also conscious efforts on the part of the defendant too to not know what's going on and and and there there are not indications of substantial conscious efforts on the part of  mrs brown to to not understand or not know what's going on i understand that the court is is is is looking at the fact that the consultant came in and and mrs bacon came twyla bacon that information it was was was taken it was it was absorbed to the extent that mrs brown knew that the billing practices should conform to those instructions in connection with a consultant which she advised by the government that she should have a consultant come in and look at her operating out of the decision to do that was hers alone that's exactly right she decided to do that she didn't have to do that when she looked for certification she also brought someone in to help her with that again those are signs of not engaging and a conscious effort to avoid knowing about something but certainly that's the kind of behavior that one would expect of someone who person who came near the consultant and so on but i don't i don't know that she said that it's that's the only way that you can pay you can pay the marketers by salary and not  commission i think that mrs brown had a confusion about whether this there was some kind of safe haven of some sort i mean don't you think the jury could look at that with this game that she didn't know and i mean after  talk and talk to her i do understand the court's position on that but i think the district court was also in a position to say that based upon everything that i've heard in this case  claimed that she didn't have knowledge so with that part of it it was clear she was claiming she had no knowledge of what was going on and there certainly are suspicious circumstances and circumstantial evidence that she did have knowledge of i don't understand why that's not exactly what this instruction to the temple you know i think that the ordinary instruction about knowledge and so on what was the appropriate one here rather than the deliberate indifference type instruction the deliberate indifference instruction is reserved for those special cases that that's my understanding of of the third circuit schooling is on these actual intent to organize and and orchestrate this whole scheme it really it gives the government and hunt fair advantage and presenting the case to the to the jury and  that's exactly what ended up happening i think it makes it more likely that the jury would find that that mrs brown did all the things that the government claims that she did