three arguments this morning and i think you're familiar with our lighting system greenlight you can go on amber like give you couple of minutes and when it turns red kind of finish up your thought and reseated we might let you complete your answer or if there's a question from the judge you may go on otherwise you should come to an end the first case of the morning and as united states of america versus  that's exactly what i wanted to say you ready for  mourning me please of course my name is mark ash and i represent appellant so lock gorky and this case is about the whether the government proved beyond a reasonable doubt gorkin knowingly committed health care fraud and knowingly violated the medicare anti kickback statute now a reasonable trier of fact could not have found mr to work in guilty of the crime of fraud because the evidence is legally and factually insufficient reasonable inferences of the evidence show that mr gorky and lacked the requisite knowledge because mr work in not only did not manage the clin work in the clinic office manager the government focuses on fan tramps conclusions instead of the actual duties and responsibilities that mr working at the clinic we should work in is work at the clinic on mr manning's answer to the question who provided the money to you to crip a the marketers and all that and then he says mike manning says mike did that seems to be the kickback case money knowing of that money that he was delivering like he was delivering the rent checks right like meaning says he gave me the money to pay the markers he had a ledger at the end of the week we went through every single person that's actually met and said that he was dealing with tam plan and santana had a booklet and she was noting the numbers and he was looking at that booklet and looking at her numbers and that he received the checks that were already printed and paid o paid by not him and his account by the the go has accounts and manning says mike paid me the money to pay the markers he paid he delivered the check that's what he said he says and he said he presumably  but there was not corroborate because they did not show the government didn't show who filled out those checks the government did not show as to who the amounts that were field in the he field the men in his handwriting there were many other audio evidence recorded evidence there were not any other independent witness evidence and then not only that manning testified today he maintained order around the clinic a pa anti kickbacks actually and the fraud part was that the government relied on his label that being of a manager and he the task that he performed the record shows a or necessary for the fraud to occur and the evidence was not only set not sufficient based on what the government showed for the health care fraud convictions but also the evidence was not sufficient based on what they did not show the governor did not show that he signed any clinic document and they did not show that he signed any checks ahead and control of any money at the clinic he did not show that he signed off on any medical records they did not show through audio or video evidence that he managed to operate paid except money and even more so it did not show that he communicated by e mail or in writing about any of the activities of the clinic to anybody inside or outside of the clinic which did you request and get a mere presence instruction so the jury had your theory that he was there innocently even if everyone around him was can colluding i was not the truck counsel but if if if i'm not mistaken that was in profits he made approximately one hundred and twenty thousand dollars over a period of two and a half years and i don't know it could be he could have made anywhere depending upon how many hours he worked because it was not documented how many hours he worked in or between eleven and fifteen sixteen dollars an hour depending on how many hours he worked in with he worked overtime so i don't believe that the the money the government has showed that the money was so high and such a large quantity that it was per se obvious that it was flaw that he profited from a fraud but it did seem an even more so i want to point out that the government did not show that he had english language skills he had medical skills they didn't show what kind of at his background he had because he didn't have a high school diploma that but even more so the government knowledge didn't show that he was a manager but it showed very much at tam tran their their witness their one witness that she very much perform tasks that were managerial in nature she admitted that she in the record that she managed the checks the point a book was kept in her own handwriting she took personal and medicare information from the patients she spoke with patients as you're working to speak to the patients probably because he didn't know very much english and she had she with specific instructions from him that so there was indication that she communicated with him by e mail there was never any e mail communications for or for mr or mr to work in and  also in her own testimony admitted that and another person maria williams not mr good work in was the office manager hired her trainer and he didn't continue to check on he the jury heard the evidence presented and they made a decision that there was enough there beyond a reasonable doubt that he committed the crimes alleged and we have to except kipper an american born educated doctor and the attorneys to keep its attorney argue throughout the trial that armenians had caused a fraud dr hubert suppose he was not aware of this happening the jury looked at mr working as an outsider and a foreigner he had the assistance of interpreters he was the only defendant to four defendants in the trial who came from a country armenian ex soviet republic to the united states as a young adult both the government and the document more documents attorney elicited responses from witnesses that referenced armenians and russians what's your due to quick record questions when did you first make your severance request i'm assuming it was during the trial to know what you what is the best example of ethnicity being just too prejudicial that it would rise to plane error not to sever so you say came up multiple times armenians did this he's armenian what's the best example of a witness statement saying argument it was argument that they were criminals of the crime organisation it was it was argued in the in the opening statement argued in the closing statement and all right but the court would have said did the jury don't consider what attorneys are saying  evidence what's the best example of evidence coming in saying any is your response that's right you could bring it up and you can when you get back up or about if you don't have it immediately that's gone well  other and may have been eating each of them may have been equal but i put review it and that's it then they would be more on with the argument that would be my pinion what is the best example and i don't think that is so much that so important as much as i think that is judge had to say that he did not find that there was a he did not know of any armenian prejudice and i think the judge was focusing more district judges focusing more on armenia instead of just foreign prejudice or players against foreigners i would say that i would probably refute you out on that but again it's not so much the economic success that a group might have is just the fact that the person who's being tried is an outsider i again was a lie have about fifteen seconds if mr gergen had been severed from the trial then the jury would have been able to focus on the evidence of him and him alone and not on all this other evidence ses and a recent immigrant who just didn't even finish high school didn't have enough sufficient knowledge of english or the medical field record starting with the sufficiency challenges in and in particular with the that kickback counts robert manning is testimony was by itself sufficient when viewed in the light most reasonable most favorable to the verdict to sustain the kickback convictions he testified that the way to to the way he entered the kickback operation the way in which he assumed the role of the middleman and he testified that mr goodwin told him that his quote role at the clinic was going to be to  quote pay for the patients this is at page twenty five to pay the markers excuse me this is that page twenty five seventy eight on page twenty five seventy nine mr many testifies to his conversations with mr woodward in that evidence that mr kevorkian clearly knew that the purpose of these payments was to pay ultimately for patients robert manning is testimony is corroborated it's corroborated by the multiple medicare beneficiaries who testified that they were paid to go to the clinic it's test of it's corroborated by the checks themselves all of which were introduced into evidence which were written from the account of this company go have services which the evidence shows is a corporation that mr give organ co owners and served as an officer and director of it and who proved kickbacks and i agree manning seems is testimony was pretty disjointed constant objections for hearsay firsthand leading questions but if manning does nail the kickback convictions would that necessarily mean the c n tower for the health care fraud no it would not necessarily mean what's the best proof that he and knowingly join the conspiracy to commit health care fraud or stronger so there's several pieces of evidence i think that are particularly salient here one is that that there were substantial fraud at the clinic there was really no to speak about the extent of the fraud mr morgan is there at the clinic at the site of the fraud he is there in them there this is all record based testimony he had are true but that alone is mere presence right even cases like well that that i was on the panel of it doesn't seem like we're all saying just because he was there day to day he had to have no no of course not but insufficiency review it's it's a compilation of pieces of evidence that considered collectively i would allow read so this is just as direct evidence that he knew about hey their patients were being asked to pay co payments so symmetry and testified that mr gordon was the one who instructed her how to do patient intake and how to deal with patients at the front desk it is an intake function to take as cindy trained testified to to take the medicare beneficiary information to take their paperwork it's a fair inference i think from from that gordon would have known of these highly suspicious or did know these highly suspicious practices and i agree on this is what's your best case on all inferring from his role and that he profited and his title rather than any one actually saying before game was involved so it's a circle from that perspective it's a circumstantial case true and what's the best case where we would support well i think the way that there are different cases that support different points so will it in tell us in from this court i think are clearly support the notion that proximity to the fraud and a leadership role in the entity that's being used to do the defrauding is part of the evidence or basis this court's decision in sanjay are noted that pain patients is a quote case law in our brief to show that these are things that allow a reasonable jury to have come to the determination of the medical services that's always a hard question to answer in a fraud clinic fraud case because so much of it wasn't provided i can tell you it was ostensibly asleep an allergy facility to treat people with sleeping allergy problems there was ample evidence though that the clinic repeatedly submitted reimbursement claims for testing on patients genitalia and  rectal regions even though multiple beneficiaries testified that they never had those tests there is testing the record that would be of course highly unusual for a sleeping allergy facility to conduct those kinds of tests i think there probably was some amount of sleep tests that were done whether or not in there some evidence that patients under took the sleep test because they were paid to go to the clinic not because they actually had sleep problems but that's the that was the nature of of the business of the business i i you know honestly your honor i be i don't recall i don't recall it may well be in our motion to r defenseless was i was an innocent doctor and i was duped by these other armenians into it as they were submitting these medicare fraud payments are reimbursement claims without my knowing it he was tying it to specific individuals at specific places i don't think there's any fair reading of the record which suggests that there was any effort to suggest that armenians are as mr gordon frames it in his opening brief inherently dangerous or inherently criminal or as a as a group of and unambiguous lee withdrew his request for that instruction there were concerns raised that if the district court were to allow dr keeper to for example get into discovery with respect to other means in other fraud cases in the text sciri that that might be a problem but be instructed some some kind of entire prejudice instruction the district court was open to the idea the government was not going to object to the idea but the everyone agreed to sort of reconsider it as the trial unfolded instruction in it at the closing instructions this is at page forty nine twenty seven that the jury was to base its verdict quote soley upon the evidence without prejudice or sympathy for it and the other point i want to make it is that even where this claim preserved it would be subject to review for abuse of discretion and it would be it would be running into the headwinds of all of the case law from this court in for example from the supreme court's decision in severe o that that strongly favors joint trials and severance is required only if there is a specific and compelling showing a prejudice that a curative instruction could not result i would just point the court on day twelve of trial mister before going there was an issue about this issue arose again media conspiracy and mr de morgan says and this is that page forty five twenty or twenty one of the record and honestly i don't think that at this point we've gotten to a place where i'm actually harmed by this additional court says i don't think so i don't think so so at this point i think i'm ok this is a day twelve of trial there's only two days left and mr gordon in his answering brief identifies something like twenty two or twenty three instances that he claims go to this entire me and biased point on the record that it's a no basis for thinking that this jury convicted on the basis of any kind of entire meaning or ethnic bias but rather that the evidence was quote pretty strong that's at page fifty one sixty one of the record and that that evidence is what supports the jury's verdict as in this will be i think my final point on this mr gordon in his opening brief seems to attribute this effort to loop in these other armenians in this effort to encourage the jury to convict on bias to the government as well as to dr keeper and i just want to make clear that the court is aware that this was not something that the government was trying to do there are a number of references in our brief to statements in the record both by the district court judge in by mr own counsel clearly saying that the government is trying hard to keep this out of the trial and so i just as a factual matter i want to make sure the court is aware of that i am happy to answer any other questions the court may have on the other the that they were treated i think the court treated both of them equally despite the fact that there was a large disparity of evidence between the two of them and the other question regarding the strongest  word armenian fraudsters and there was an objection and the judge injection was sustained and it was the testimony of wayne poole a texas medicare fraud control agent and the doctor keeper was trying to show that there was many many different armenians there were doing one fraud after another after another and  and that that is in closing that's not evidence but again the jury heard this very much so at the end of the trial more so than that at the beginning but i decided is this is in my briefs throughout the trial that so he said he didn't think he saw a prejudice here and he said he didn't see a disparity in evidence between the two or those fact findings ones we would have to reverse only for clear i think that it should  should be reversed for clear error but i do not believe that the judge made a finding about disparity in evidence he made more finding that there was not any prejudice in his denial the motion for a new trial because he was of the opinion that armenians are not not a suspect group and i think that the j focused more on the armenian instead of on the fact that mr bork in was and in recent immigrant and there i do believe that there is some precious from some jurors regarding recent immigrants regardless of where they came from especially recent and young immigrants who don't know the english language and american culture as well and they're still in the process of learning  guess they are strange sounding names to an english speaker but i would i think i would be with you there's nothing wrong with meeting with some russians a thanks we need lawyers to volunteer take on these criminal appointments over ninety percent of all criminal cases involve appointment of a lawyer that public defender's office or a private lawyer and we do appreciate your service to the court