is the nd time that united states versus paulus has been heard by this panel the st time of course we were here on the united states appeal of the judgment of acquittal and now we're here as dr richard paulus seeks review i'd like to focus my time today on dr paulus as claims under the th and th amendment although we certainly believe all of the arguments pressed in our briefs or at the relief we've sought and incredibly all of the key facts that underlie the th and th amendment claims were totally unknown to dr paul s to his counsel and as a result to this panel during the st appeal this court should hold that when judge bunning in the court below held an ex parte eviden hearing in which he completely excluded dr policy and his counsel when he decided on the united states obligations under brady versus maryland and he issued a ruling on the admissibility of evidence that dr policies trial that that was a th amendment violation of dr policy is right to counsel pursuant to the authority of this court in united states versus minsky it is true is it not counsel that the doctor pauses attorney at the time knew there was going to be a hearing but he assumed it was on a privilege issue that's not correct your honor i thought the record reflected that that policy as attorney was aware from looking at the docket sheet that something was coming up that's a very important issue here judge mckeague yes there was an ex parte motion filed by the united states and dr policies counsel not his trial counsel but some of his other lawyers were informed by the united states that the ex parte motion related to a privilege a question that had been raised by king's daughter's medical center but i didn't get to that point i didn't get to ask you whether he learned from the government's lawyers put that aside for just a nd yes is a disc juris is a true or isn't it true that he knew from the docket sheet that was going to be a hearing but that it was dealing with privilege that is not correct the docket she simply reflected in ex parte motion there was never a docket entry that identified that hearing would occur was it was the ex parte motion sealed or it was read that correct it was under seal he was not able to read the motion so at least i'm not saying this is significant or not but at least he could have inquired as to what the expert emotion yes  of whom was myself we were not in washington d c at the time of this we were not part of this phone call so no notice was given to trial counsel but it is correct that notice regarding the ex parte motion and only the motion w provided to one of dr policies other lawyers and did the information that was provided about the substance of the expert emotion provided to one of the other lawyers did their lawyer communicate with policy as trial attorney what was stated during the phone call by the united states assistant united states attorney who persisted pated in that call and asking you what was in the conversation ok did he you made a point of he didn't call policies trial or so i'm just curious about that did the lawyers for paul as they did call then relay whatever the information was to the drug and for the record is silent on that fact i'm happy to answer based on what i know outside the record if you like do you and the answer simply is i don't remember this was three weeks before trial we were in the midst of deep preparations about it well as a government and during the phone call there was a declaration submitted by the lawyer who participated in that phone call and what was relayed to her by the a u s a was that it was a they want to story off here but i want to lose track of this too there's a suggestion that you could have learned about this sample size which seems to be the key of what was not provided to you by simply calling the hospital and asking now that seems sort of odd to me because the hospital's one that was asserting that this was privilege but the record doesn't disclose the briefing doesn't say whether in fact there was any effort made to learn about this shields letter from the hospital so throughout the press the preparations for trial and in fact even before the indictment the united states presented to policies counsel on several occasions that the hospital had agreed to participate and help the united states in the prosecution of dr paulus and it was announced in a way that it was made clear to paulus that the seventy five procedures identified by the hospital were incriminating information and i would i would focus you're giving me an explanation for why you did or didn't do something but you didn't tell me whether you did or didn't do it was there any attempt by paulus relevant or not to contact the hospital to find out more about this seventy five procedures and what and more about whatever sample that came from there was an effort and that hospital declined to provide any information ok so you did try and read you were rebuffed yes and again i want to be clear i don't want to go i just want to make sure i'm clear that i don't believe that's in the record all right but that's the answer a liar call so this was an opportunity for the united states when they had that phone call to say to d policies counsel the ex parte motion also involves a brady issue that notice was not given dr policy was not told brady issues would be discussed he also was never informed that the  discussed and admittedly the united states itself didn't even know that because judge bunning c was spontaneous and now he would rule on the admissibility of evidence so we look at whether there was notice there was notice that a filing had been made there was no notice that a hearing would occur did occur there was no notice that it involved brady there was no notice that it involved the admissibility of evidence the united states relies on united states versus carmichael in support of its argument that dr polish waived his right to complain about the ex parte proceeding as did the court below rely on that case but the facts there are so distinguishable in that case during trial lawyer for the government approach the bench to have an ex parte discussion the judge said to the defense counsel i'm going to speak to the prosecutor alone and the lawyer said judge that's your call and on those facts the th circuit rule that the judge had made notice of it and the defense lawyer had acquiesced and therefore when they looked at the th amendment claim post trial they used the harmful error standard could you take this opportunity just to simply tell  in your estimation this was such a big deal to paulus to know what the sample size was what the doctor would have or might have done differently and the reason that i'm asking that is if i recall right from the br you really don't get to that point until almost the end of the reply brief and you do so you do talk about that in a couple paragraphs but if you could just summarize all that so that at least i understand why this was harmful to yesterday i'd be happy too the united states theory in this case was that dr policy was not being accused of medical malpractise he was being accused of fraud and the key difference between a med mal case and a fraud case here was evidence of a pattern a systemic and repeated incidence of paulus getting the wrong number wrong on the cap reports as this panel held in its st opinion and we wouldn't a fault a doctor for simply misreading an angiogram but when the government raises evidence of a systemic repeated as a target in its closing arguments daily frequently again and again and again that raises an inference of fraud it moves the case over the line if you will into the fraud realm if dr pollack had known substantial study had been done of over one thousand dollars of his procedures and the rate of disagreement wasn't thirty four percent or fifty percent like the government continued to claim over and over in trial but in fact those independent experts found it to be seven percent that would be a world of difference and allow dr polish to raise a defense of mistake and also to cross examine all of the government's experts about why their rate error became so came out so differently i know that that this follow up question is probably just asking you to speculate but i'm curious obviously when judge bunting ruled on the motion to acquit yes he was in possession of this information about the shields letter in the sample size and the result correct was that's correct did did he mention anything we might have missed or did he intimated all that that played any rule in him concluded in his granting the st acquittal that we set aside it did not in fact judge bunning in his opinion denying our motion for a new trial based on this brady violation repeated his finding that he did not believe the seven percent result was exculpatory he believed it was in culpa tory now during the ex parte hearing the united states urged judge bunning to find that it was exclude the tory for precisely the reason that i tried to articulate a few moments ago that the difference between a fraud case and a metal case turned in this case on how frequently dr policies numbers were wrong in fact of as this court wrote in its st opinion the government has raised evidence of a six to that question is whether the error is harmless if we find a th amendment violation of the right to counsel do we even have to go to harmless error or is prejudice presumed for  yes judge griffin that's a very important question prejudice is presumed for a six member what's your best case because the government apparently does not concede that point and i thought that was very basic law six th critical stage is a purse a error that requires automatic reversal in the government doesn't argue that this was not a critical stage today they do not and i think that's very telling there was no attempt to address the reasoning of under the line of precedent starting with roe v arrow the united states that this was a row the arrow type hearing in which if there is a compelling government interest then there may be limited ex parte proceedings but i would point out briefly i think my time may be up way that this was not a review proceeding there was no compelling government interest in fact there was no government interest at all it was a private interest that everyone agrees was invalid from the get go and secondly even in  a complete exclusion of defense counsel there are replete examples through the case law of the creative ways that judges must step into the shoes of the defendant and allow them to participate so that their six amendment rights are protected that did not happen here dr post was totally excluded that requires automatic reversal because of that per se violation which would you concede from the defendant's standpoint that had the hearing dealt only with the hospital's asserted privilege that an ex parte hearing would have been proper if that's all that was discussed on these facts because dr policy did have notice of the privilege issue i think our argument would be much weaker if in fact what i would i assume correctly than your position would be that the that remedy once the determination was made either by the judge or by the government's argument or your argument that we're going to get away from privilege at that point should have stopped should have been able to participate right so the united states  minsky said that sometimes we do have to have in camera rulings in camera reviews of documents and that's in fact it may have even been required in the minsky case but that is not license to hold an ex parte hearing a foreign advance to this hearing take place before the trial was scheduled to start three weeks so there would have been arguably time to reschedule or adjourn and get  think and it would have been easy i've got one further question and we will not be deducting from your rebuttal time thank you when judge bunning then instructed the hospital and the government that they were to disclose any of this did he give a reason for that do you know he ruled that the evidence would be ultimately inadmissible a trial under federal rule of evidence for eight and that because it wasn't admissible he was instructing the united states not to disclose it to paulus now there was no valid legal basis for judge bunning to make that instruction but instruct he did in the united states complied i think both of you agree that it in miss abilit not the standard for brady correct and we both agree that federal rule of evidence far away did not preclude admission of this evidence at trial the united states agrees it was admissible it wasn't privilege they were not able to give obligation to be honest with us even despite the district order i think the proper procedure would have been to seek interlocutory review or to go back to the office of professional responsibility and seek further guidance about what steps the u s attorney's office should have taken based on judge bunnings order all right thank you is was as one of the thing following up on judge griffin's question i think i think one thing he was a ding to is it when you were all here the st time we didn't know about it either were and so it's hard to figure out whether our ruling in connection with the the government's appeal of the acquittal would have been different had we known the whole story absolutely so i assume your position is along the lines of the answer you use agave in addition to the steps you think the government should have taken do you have any authority that suggests that when it got here the st time that we should have known about this we should've been told about this by the government i'm not aware of any case law that addresses an obligation by the united states i think when we look also at the trial the united states repeatedly hammered the jury and did brief to this court this was a systemic and repeated pattern all the while knowing that they had in their back pocket dramatic evidence to undercut that point and that's why you don't you don't think the u s oh no all right all right thank you you would though kind of agree that it puts the u s attorney in the usa involved in a little bit of a tough spot to say well i just won here and now i need to appeal t yes it does put them in a very difficult position and i would point out that in the hearing the assistant united states attorney who addresses with the judge went back to the point several times and she said your honor respectfully i need to move you back to the bridge point because i don't think admissibility determines whether we must disclose it and we must disclose it ok judge griffin any further questions oh no not thank you thank you good afternoon me please the court day we were meant for the united states can i just start off with a question the judge griffin asked about the ethical obligations of the government the trial attorney and the u s attorney's office throughout these proceedings in this case we're consulting with the office of professional responsibility and seeking guidance on what our position should be at the district court so i just want to make it in front of this court because coming here you knew you had this problem in the office professional responsibility tell you you didn't need to tell us about it either i i don't know if that was a breach of the office of professional responsibility because at that point all judge bunning it said is don't disclose it until after the was the judge so what would be possibly the reason to come here and argue that you have this overwhelming evidence of a pattern when you deliberately that's a that's a misstatement i didn't mean that when you following judge bunnings order have failed to disclose something that suggests maybe it's not a pattern we read the order as directing us to come back to judge bunting prior to sentencing and we never got there because judge bunting issued a rule twenty nine judgment of acquittal on findings and legal rulings that were not it was a legal sufficiency was not implicated it did not directly implicate the letter and that's the issue that was taken up to this court but the  letters certainly implicated your argument that there was legal sufficiency in order to convict and he should not have set aside the verdict yet as we said in our briefs we think that the letter implicated bit fishy when the fact that it would have put it would have provided incriminating evidence would have helped the government that's why we originally tried to get it into trial but judge bunning ruled against us on that issue as well so reality this is both incriminating as you attempted to use it and as the defendant claims he would have used is that a fair statement it's a fair statement that the letter as we said in front of judge bonding supports a potential exculpatory theory based on lack of intent medical malpractise but if i could go to that brady materiality point the only point at pretrial was that st prong favorable to the defense and consistent with a policy the u thought that it needed to be disclosed judge bunning of course ordered it not be disclosed the question for this court materiality is will probably have the letter been disclosed the jury would have few things differently and i don't think that increase cuts in favor of dr paulus in this case the letter was deeply incriminating enough i could just reference a response to ms liz cicero's comment the seven percent number site that she cites that is seven percent says patients where the hospital has concluded that they received a medically unreasonable cardiac procedure of a stent one out of every fourteen patients seven percent had they had clinically yet dr paulus had marked on his records severe blockage seventy percent or above consider that seven percent next to the patient population in this case doctor policy seeing this value that is why the government wanted that would have preferred that this letter be in trial it shows as this court said a pattern of fraudulent over diagnosing this is just this is not a letter that shows an excellent doctor who misread the occasional  be fair to say that what we said is that a reasonable jury could conclude that that established a pattern we didn't say as a matter of law the statistics that you displayed dictated conviction in this case that is correct you sample showed only seven percent or just push back on a premise of the question if you read the government's case the government's closing we never argued the experts the doctor goes to doctor we never brought up we never said he had a fifty percent error rate that was not part of the government's proof at trial partic because the district judge could prevented us from saying where we got these where we got these procedures from so we had to just rely on the single case studies that our expert presented so it was not a fifty percent ratio versus a seven percent ratio that was not part of our case did your expert choose the cases used for example so from as i understand it to potts be the experts looked at the files that the hospital had identified in the letter the hospital had identified seventy five and then the government had independently subpoenaed other files from the hospital and to create a larger pile so you started with the bunch from the hospital that the hospital had been overdiagnosed correct that kind of skew things a little bit if the government never claimed at trial that we we had a random sample we did not get all of dr policies procedures over this five year period we got them from the seventy five from the hospital and the rest from our actions through subpoenas of the hospital because we were engaged in litigation with the hospital at that time as well that the jury know what the sample size was that the one doctor that use the seventy five test cases from the from the hospital survey consisted of whether you emphasized it in the argument or not to the jury know that doctor or go by that he reviewed several one hundred procedures and that's the only testimony there was two hundred something that's about yes that sounds about right and he said i reviewed two hundred and i found that i disagreed with paulus on seventy five whatever it was about one hundred of those he never made any comment on the other patient files that he didn't review he only talked about the patient files that we presented so there was no ratio inference in dr ghosts testimony that there was a fifty percent error rate or a thirty percent error and i got that i'm just trying to i'm trying to find out whether he quantified it as a ratio or not did the jury know that he looked at two hundred files and found seventy five or whatever the number was were contrary to his medical diagnosis yes they had those facts so we don't know whether the jury drew any significance  from basic math they have the numerator they have that we don't know whether they drew that inference or not corrected the jury's verdict is obviously a black box and but when we're dealing with the brady material the the court has to make an independent assessment whether a reasonable likelihood exists that the undisclosed material would have affected the jury's verdict and in our view it wouldn't because even if you take the hospital letter at face value it still one out of every fourteen patients the hospitals telling us a reasonable cardiologist would not have found severe blockage and that is over five year conspiracy one out of every fourteen that's that's a large patient population and that's why at the end of the day we think this claim fails under the materiality pronk but i do respect i think you're changing your argument here your argument in the briefs unless it is misunderstood it was at the hospital sample involved a short period of time a shorter period of time like two years your indictment was a longer period of time but then when you peel back the onion you find that the vast majority of the cases that you presented were during the same time period as was the hospital's own study that yes your honor i apologise if i have it the hospital study range for about two years all i'm saying is that that number that the hospital reported seven percent is still incriminating it is in that's why brady materiality analysis the court should ordinary indictment decision we can agree that if you found one case out of the four thousand six hundred procedures this doctor did you wouldn't accuse him of fraud in federal court correct so you accused him fraud when one of your studies showed it was about fifty percent well i mean that sounds reasonable to me so there's got to be some sort of a line between one and fifty percent and you seem to say if it does if it doesn't matter if it's so on or if it's fift intuitively that doesn't seem to make sense because the question here is even if it's one out of fourteen over the course of it that the hospital study that's still a significantly large patient population that's affected that receive in did the jury get information about other places in what would you expect in this bunch of say you know one thousand people how many of them would have blockages severe stands the testimony before the jury where it was that if it's seventy percent or above they should they should get a stent if it's thirty percent or below nobody nobody should be thinking about what the blockage had i want to know did the jury get some kind of information about what would you expect to see in a population of this size of the large sample size how many of them would be at a point where they would need to have stents because i mean one thing that has troubled me as i've been looking at this is people who don't think they have any problem whatever with their heart and run three or four miles every day aren't in the population that's going to see the doctor the cardiologist your honor the government did not have any witness testimony on what is the average percent of people who are suffer from this degree of still no serious versus just this degree just a gnosis that wasn't in the case was there any testimony that was offered by anybody that said what would be a reasonable range of disagreements between cardiologists of comparable skill when they're reading these angiograms and the what the overall error rate was how many cardiologists be another way to put it no your honor and i think the point in this goes back to the interpreter variability issue that the court that the parties addressed in the st appeal is the the the ory of the case was that no reasonable doctor is going to disagree over the range of blockages that the hospitals reporting seventy or above versus thirty or below and so the number should be zero or near zero so you're saying the reasonable area of disagreement is between thirty dollars seventy cents but not above or below that's correct and that was that was the testimony at trial including from one of the defense doctors who said doctors don't disagree  about in this is actually in the court's opinion doctors don't disagree over that amount of range so if somebody says seventy percent or above in somebody in another cardiologist says thirty percent of below somebody is right and somebody is wrong that was the testimony at trial interestingly enough and correct me if i'm recalling this incorrectly when the government's experts looked at the results of the hospital study the government's experts disagreed with some of the hospital experts conclusions that the doctor was wrong your own experts found the doctor was actually right in some of the cases where the hospital's experts found he was wrong is that right no as i understand it we did not present testimony on all seventy five patients that the doctor report that the hospital reported to us as medically and justifiable but had a fair inference when we read that to conclude you didn't present it because it your own expert couldn't couldn't cooperate that i don't think that's a fair as we picked our cases why finding the most extreme examples but we had to call our case somewhat but i'm not aware of any time where our doctors said the hospital incorrect obviously if i make a misstatement today i will correct it with the court so you cherry pick the or we never claimed that this was a random sample and the defense elicited that over and over again at trial in my remaining minute can i go back to judge griffin's question he was asking what the government's threshold position is on the th amendment issue it's twofold st under the riviera line of cases we think that this we can draw an analogy here because if we were dealing with the privilege the fact that it wasn't a government privilege is irrelevant this court has done the same for confidential juvenile records which obviously are not done for the benefit of the governor started out as a hearing  privilege but it morphed into a hearing on the admission of evidence so i mean don't we have to see what the substance of the ruling was as opposed to how it started i don't so i disagree in that if you if the court looks at the how the privilege issue was brief the rule for eight both sides were mentioning rule for eight in their submissions to the court so this the rule for weight issue was bound up in the privilege and i guess this goes to judge battles as question what was the district court's authority behind telling the government don't disclose that in the district court says it at the end of the hearing i want to i want to resolve the privilege issue later the court wanted to keep the privilege the hospital's privilege invocation pending eckstein so big government walked out of the hearing with the understanding that this privilege issue is still alive and that's why we think the worst i don't understand that i'm looking at the st or the nd page of the transcript of the  hearing right at the very beginning the judge says i have some questions for both of you and i don't know if it's going to be necessary to address the privilege question i think more importantly the admissibility of the underlying information you wish to disclose to dr paulus i've got to address that now once he then goes on and addresses at st there is no need to at that point address privilege because he's found it's one in admissible which was wrong and he's ordered you not to disclose it to the other side so i don't i don't understand how privilege helps you hear it so we think it's all bound up and we think that the only reason the judge could have ordered us not to disclose was his understanding that the privilege issues were still but even if you took away about how can we be reviewing a ruling that he said not to disclose which is as you say bound up in this when he never explained why he ordered you not to disclose we understood it as his decision to keep the hospital's privilege and an invocation pending that's what we understood it but but but pending in the context of this meant we'll deal with that after trial in connection with sentencing if he gets convicted is that a fair statement yes your honor so that is i mean to do with the trial so my you know i'm out of time able please yes if the court believes that this but decision that point is critical because if minsky is conducting an inquiry into prejudice it's not a per se structural error that is man and that requires biased in favor of whoever hired them and therefore they wouldn't have believed the hospital's experts now assuming you're correct in that which is a pretty strong statement for you to make the same thing applies to your witnesses you hired your own witnesses if they're biased because the defense hired them then they're biased because the government hired them so i don't even understand how you get anywhere with that argument and i'm sorry momentarily forgot what your  information in the letter one out of every fourteen patients is receiving it stent that no response cardiologists would impose because dr policy says seventy percent or above and the hospital's independent review says clinically insignificant thirty or below one out of every fourteen that is not an exculpatory fact that is an incriminating fact and it supported the government's theory that this was a significant and sustained pattern of fraud unless the court has any of what is your what is your best argument that you did not find only your ethical obligation to this court i'm not disclosing this evidence to us judge griffin i can this is outside the record i can respond that i knew that there was a privilege issue in the case have i did not inspect any of the documents or the expert hearing transcripts that were associated with the hearing so i did not know the substance of what i had occurred during the ex parte conference that is for me personally but of course  we as the government knew about it but your question asked about my personal knowledge so you did know it wasn't a privilege hearing it was an admissibility hearing and you didn't know there had been admissibility ruling that paul as wasn't participating in and you didn't know there was an order not to disclose i simply knew that there was a outstanding privilege dispute and in perhaps as my fault i did not inquire further as to the nature of out when i was preparing the government appeal in this case that's  i have just a few very brief points to address based on my colleague's arguments st there is evidence in the record that the united states did in fact tell the jury over and over again about this this person you heard testimony from tells you at least half of these procedures were bad you heard dr elsa byrd tell you that thirty to fifty percent of the procedures paulus did were bad so it's not correct to state that the government didn't make representations to the jury about an error rate was there any evidence i mean we have a seven percent error rate from from the hospital is there any evidence that that is kind of in the margin of error for for misreading of these things yes that means they have to prove fraud you have to prove it yet and they're doing it with circumstantial evidence because of this high error rate but is there evidence that everybody has some sort of error rate in the seven percent is within the range of normal air yes there was it was excuse me i didn't mean to speak over you don't know what was there this would be within the normal range of air yes there was testimony from the medicare expert that we called on behalf of the defense who explained that typically if review was done of a physician and it was seen that he had somewhere near a forty percent rate of error that would be time to pull that physician aside and provide additional provider education to hel him improve his rate of compliance we also have would be also safe to say that that calling it an error rate might be a little bit of a misnomer it's it's a disagreement in medical judgment great as a practical matter yes judgment and that is such an important point now what the government seems to be arguing is the area where there might have been a legitimate disagreement between experts was the thirty to seventy but there isn't really a disagreement about above seventy or below thirty is do you agree with or disagree with that i agree that's what the trial testimony showed although we presented ample evidence that in reality it often is much more dramatic  variability now in the rule twenty nine dollars standard when we were looking at it assuming that the jury would credit everything presented by the government yes if it was outside of interim server variability the jury would have to believe the government's expert statement that paulus was wrong but that would show medical malpractise within enter observer variability there simply showing disagreement in paulus may very well be correct and their expert may be wrong but it's a zone where they can disagree  procedures that we've been focusing in on in the shields letter out of the one thousand and forty six or whatever that number was were they spread among below three hundred and three thousand two hundred and seventy above seventy or they concentrated say in this thirty to seventy if you know i believe the shields letter said those were the ones where it was found to be below a threshold where they wouldn't call it into reserve or variability so those seventy five dollars those physicians would say it's not reasonable disagreement he was wrong but even within that and i'd like to point out that on this record there was also testimony that dr paulus performed a stent for about a rd of the patients for whom he did an angiogram so the one thousand and forty nine stent patients really represented about three thousand people who had any angiogram that he interpreted seventy five of those that's two three percent of the time we would have been able to argue to the jury it was only two three percent of the time when experts found he was wrong and not that he was lying not that he was committing fraud but only that he was wrong there was no pattern and to the government's point about the way they selected the procedures they absolutely cherry picked on the record there are no less than five pieces of correspondence that's a record three hundred and sixty eight dash six through dash ten where we asked the court i'm see is me the government over and over again please produce brady why haven't you produced brady are you withholding brady on the basis of a privilege or some other basis if so please tell us and the government wrote back and said we absolutely understand brady and were offended that you would insinuate otherwise paul this was entitled to rely on those representations by the united states attorney's office that they complied with brady they did not dr paul is was denied his rights under the th amendment due process because he did not have a fair trial and he was violated his th amendment rights were violated when so much of what was so critical to this case happened with him having no idea it had ever occurred and we asked about her new trial so this is this is kind of  come out was that are going to judge i mean that this is a reason not to incarcerate your quote we did judge bunning to reject our motion he he this was presented so this was presented to him at the here well he didn't have a hearing but we were permitted to file a motion the government responded made similar arguments to what they are going today and judge bunning tonight the motion for bond pending appeal as did the six circuit when we appealed that decision ok when you  to us did you bring this information to us yes everything we've talked about today was outlined in that decision that appeal that we made to the six circuit