it please the court the district court in this case gutted the defense by precluding the introduction of a special rule at trial either by way of an exhibit or by way of a jury instruction without that information before the jury was unable to meaningfully consider the good faith defense because the language of the regulation itself showed that the interpretation of prometa ambulance company was reasonable i thought you were able to rely on that  specifically and said although it's not relevant right now it could become relevant and it said specifically this is it your two or five he said nonetheless it is worth mentioning that the special rule could become relevant at trial if the defendants present evidence of their understanding of the special rule to negate the mental state required for the crimes and so that's in fact what happened mr prosek testif he said are relied upon the special rule you also had that the prior statement of mr monti and the office manager who said mr prohack relied on the special rule and yet when it came time to trial based upon upon the government's motion eliminate to preclude reference which was granted we were not allowed to bring it in and then when we asked for the jury instruction  that was precluded and the it was that the court did give a good faith instruction but without actually seeing the special rule which the language of it on its face says that  minimize and and suggest that mr prosek assertion was invalid oh he just talked about it here or that it wasn't believable it wasn't believable and without actually looking at the the language itself right so when you say looking at the language itself i think you've answered my question i think you're complaining about not getting the instruction yes anything else well if it had come in some other way maybe the instruction we could still have tied it in with good faith but without but yes primarily it's  that that the that no no such instruction was requested specifically in medlock if it's not in the briefs but if you look sorry in the in the opinion but if you look at the the government's argument they in fact mention that there was the district court it actually agreed that he would give the four ten forty instruction or give the language of four ten forty of the special rule and in both cases it was very clear either that they were precise or that they were somehow faith because ultimately that is what is the the medicare system relies upon the controlling the amount of of money that's paid and the way that's done is having the doctor certified medical necessity this is unlike the it was your view that once that certification is made then that's sort of  it's it's has an ex post facto application and furthermore the in this case there was reliance on the special rule as it was and and so to come back and say oh you should have known this ahead of time or you the folks you represent were free to continue to believe in though for example one of the individuals was described as writing up on his motorcycle in robust enough health to write up on his motorcycle and hop in the ambulance while you were not i would point capable of making the determination and and even dr freeman testified about how judgment is impaired at the time of trial that particular beneficial it was was deceased so it sounds like the answer to my question is yes no matter what the the problem the doctor can see things like a risk of falls or the requirement of monitoring it's not just about they need to be that physically they need to be carried this is about this form of ambulance transportation requires monitoring and so the e m t he has a month of training they can't contradict what a doctor might know about this person's oh but you're the one who does the monitoring morning i'm sean could die and i represent amelia's of erith like to add something to what my colleague said it wasn't merely an instruction that we weren't given our entire defense from the start before trial was based on providing the jury with the c f r that our clients relied on it respectfully it was for the jury to decide the credibility or the believability of our client s reliance on the c f r and so when mr pro shaq testified that he and we meaning the defendant pro med relied on quote the special rule and quote that language was meaningless to the jury because what does that mean special rule what it meant was the c f r the court knew that and the court specifically said that he was not going to let us this is after trial began and after and that's why we asked for the instruction that they wasn't going to allow the c r to be told to the jury and so the only thing the jury had left was the government's interpretation of the law and that was the internet only manual the clarifying regulations which were not in place at the time of of the transportations and the local determinate local determinations neither of which the internet manual local determinations neither of which were law or regulations or even rose to  what a c f r was and so let the jury decide instead the court frankly directed a verdict against us by not allowing the c f r into evidence and i understand your honour's concern about well the some person was was seen driving all right well that's understandable now it's troubling but that's not what our client saw and let the jury decide whether their reliance our client's reliance on the c f r to bill when a also heard evidence that there were instructions given very direct instructions to the e m t use in the field to alter their run log so that so that there wasn't a record of people walking under their own steam out to the  ambulance and you're aware of that to take out those notations and having heard that it's pretty tough for the jury to decide if they believe it which apparently they did pretty tough for the jury to conclude that your clients were relying in good faith on that regulation and if that's what they believe they wouldn't have been concerned about the notations in the run logs and so that there's two empties the testified there were over i think over one hundred thirty beneficiaries total and the evidence including from those two m p s were that most of the people at the probate transported needed the need of the transportation and they did testify as to run  altered some said all heard some said changed some said they were directed except i have to make this clear they empty is that testified at trial did not say that they were they could not recall changing any their state of mind if they asked them the e m t to falsify the records and the e m t didn't that that really isn't relevant whether they followed through on the request to falsify that that false doc patient was not sufficient and not concrete proof as to a scheme to defraud and so here it is relevant to whether they were acting in good faith i totally agree and it is relevant and let the jury decide whether that alone was enough or that like we said which reliance on the c f r of course i was going to discuss another topic that was important to us which was the misconduct by the government in its treatment of line it seems to me that the trial court signaled pretty strongly that if the defense wanted to call that witnesses dr pack yes your honor that there would be immunity for that witness and mine are sending is that the defense didn't ultimately call that witnesses have i got that wrong except for the immunity part he says the court said if i wanted he i can issue a subpoena and he'd have the marshals bring him here but see that was not enough because of course once he's committed once dr packer's made statements to a federal agent including being sent to should be recorded no lawyer is going to advise dr pak to say anything different than what he's said to federal agents that was the problem so simply providing me the opportunity to subpoena him is not going to cure the issue the the misconduct was frankly egregious case life cited supports my position the the only thing providing a curative instruction which wasn't going to fix the problem d two that certified the certainly the transportations which we discussed the relevance of that the government knew it was relevant because that's the only thing they discussed with when they interviewed dr packs and sarah patiently recorded him which was don't review your medical records it's in the recording that i provided you don't don't review your medical records tell us what you remember about these patients from two thousand and ten and two thousand and eleven and when dr pak said well did i cite you have the certifications for them the government refused to answer the question and they and they ended the interview and so the government knew it was relevant whether the man whether the doctor certified the transportations and so that combined with not providing the the regulation upon which d and getting some non random sample to use as a last calculation with those non identified e m t saying oh those people they were there was no medical necessity so we start with a flawed methodology which the court in our opinion blindly adopted so the calculation that was used was based on evidence that that was one there was little of no evidence that was a douche to trial in fact  methodology conflicted with evidence that came in the trial we had dr freeman testify the beneficiary she treated notwithstanding that they were ambulatory at times they were there was a medical necessity f was a methodology that resulted in lower restitution amounts and some of the other available methodologies would have is that am i wrong about that you are correct however each of the methodology is proposed that the court had the option to choose all suffer from the same what we view as a fatal flaw was based on some information from some e m t about some beneficiaries that the governor we were asked for an evidentiary hearing we asked to be able to find out how they determined which of the thirteen beneficiaries that they select i think it was thirteen five however and in not a single case did they do the government or any of its agents go to any of the treating clinicians the people that the government's on with the says are the only ones that are competent to determine whether there was a medical necessity so we kind of garbage in garbage out there each of these methodologies suffered from this  that initially but it looked to me like that comment was made before the actual sentencing discussion happened it was sort of thinking out loud and then it appeared to me that when the actual announcement of the sentence and the findings to it there was no reliance on the issue as i understand the court's actual comment was made but what i'm saying is that once the actual sentencing started on the findings that supported it that's not in there there's stuff about lying to the court there's a lot of other stuff but exhibited an arrogance that was offensive to the court because a year before he had any thought of being indicted he had leased a b m w and i don't believe that those are proper factors if you look at the cases that apply and ressam and others i think that when you combine that and the cumulative effect of that of saying well it's my instinct that he destroyed and he was arrogant to then take the go to the top of the guy long range then add two and a half years for that based on instinct or arrogance so on that basis we see my time is behalf of the united states sufficient evidence to support of the defendant's convictions the defendants knew that their patients did not need ambulance transportation and that pro med would not be reimbursed if medicare knew their patients true conditions and so they instructed m t s to falsify run sheet so that medicare would pay pro med and then so that pro mag would pay the m t s it does not matter that the government was unable to produce the falsified brown sheets for the substantive counts defendants misrepresented the medical necessity of ambulance services when submitting claims to medicare and the district court properly precluded the defendants from mischaracterizing the medicare guidelines as to courts of appeals properly allowed prometa m t s to opine as to whether the patients they transported needed ambulance services the e m t use or testifying based on their own observations of the patient made at the time of transport which is exactly what the lay witness opinion rule allows also the government did not substantially interfere with mr the decision of mr dr pock to testify dr pock did not testify that was very concerned about the government's tactics and i'm from ultra court judge myself so i'm always very sensitive that those of us working on the appellate level are pretty far removed from what was going on in the trial court there's a texture is tough to communicate in the briefs but what's very clear to me is that the judge was very concerned that's correct your honor the judge exactly the remedy that the defendants had asked for when they had moved for the court to compel immunity and it's also the remedy that this court involving just made clear will remove any prejudice from any purported wrongdoing by the clear that there took a bridge that the interview was conducted served to physically and without giving the documentation to the witness so that he was on record and if they had called him use actually going to be a pretty ineffective witness at that point well i my understanding his defense argument is that he wouldn't have to testify differently because he would be subject to perjury charges if he did but of course if the court had ordered the government to grant immunity the defense the witness would not have been subject to any such charges that's the entire point of the immunity  know pretty effective he may have been impeached and it's true that if the defendants had sought to have dr pock testify and had him testify that record might be before the court too to assess whether or not there remained any prejudice but of course the this court can't assess whether there remained any prejudice because the defendant did not take advantage of the remedy that the district court offered to him that this court has made clear is the exact way to remedy any problem uncomfortable position of talking about how the defendants didn't take advantage of the remedy but not saying very much about the government's conduct in the first instance when you your position is that this was acceptable conduct by the government and all concerned that i haven't heard a response to that i understand your honor and we  very much understand the district court's concerns and we understand your concerns and we take them very seriously and i agree that the government could have done things in retrospect we certainly could have done things better in light of the fact that there was no concrete evidence of fraud on the by the doctors it would have been far more prudent of us to have interviewed the doctors before filing the motion in limine a which of course we did not renew and upon determining that the doctors weren't involved it would have been more prudent for us to tell the district court that much sooner than we did and so we do understand that mistakes were made there was no finding here of prosecutorial misconduct however because no such finding was necessary because the e witness in question was expressly told or all but expressly told that if she test if she provided the alibi defense for the defendant she planned to prove to provide that she would be prosecuted for perjury and more than  that she would have her plea agreement and separate charges revoked and the ninth circuit said that the district court could have eliminated any possibility of prejudice by requiring that the government grant immunity to that witness or dismiss the charges so i do think the average is covers exactly that issue could you turn to the i mean maybe i'm getting your notes out of order but i'm i'm interested in response to the to mr prosek argument about his sentencing yes your honor i believe the court was entitle to rely on the thirty five fifty three factors in sentencing mr prozac to an above guideline sentence that the court was particularly concerned about the nature of the offen that it took money away from programs that are designed to help poor people that he abused his position of power over ms wallace in particular he was the person who financially benefited from this fraud and he wrote in other people who weren't receiving the same kinds of benefits but are experiencing the consequences at the other end he also what about forgive me for interrupting but i i didn't ask a very good question what i'd like you to focus on if you would is the calculation of the percentages that were determined by that sample and of course the court did not rely on those percentages the court said i'm going to take the particular patients where there is evidence that there is no medical necessity and determine how much was paid for those particular patients what did the court know i know what the court knew about the five what the court know about the other nine was in that batch that they were identified by e m t use or by the agents as not require medical necessity and that there was a declaration of agent ramirez and she said that agents went out and interviewed those individuals and and determined that they did not need ambulance transportation now as one of their arguments is that those young teens were not identified is that a fair comm is who were interviewed are identified in the affidavit but the e m t is or not linked to the particular patient so they did know who the e m t is were right i think you've answered my question and that's consistent with my recollection but i'll  said that where there is evidence of pervasive fraud in a company the district court is actually allowed to assume that all of the billings to medicare are intended loss and of course the court didn't do that here the court took a much more conservative estimate than has been allowed by this court in other cases do you is the basis of that statement that the court only measure the amount actually paid as opposed to the amount billed it's both your honor so yes so in the guidelines consider  intended loss and actual loss and there are cases that say that the amount billed can be deemed intended loss now of course on the flip side of that there are also cases saying that where it's understood that medicare will discount then you can't really assume the entire billing amount but this number that we're working with was discount right it was it was just going to account the fact that there was and it was anticipated that the entire amount billed was never going to be so the court here the court didn't find intended i can't remember exactly if they put a particular number in their briefing i was quickly looking through the sentencing transcript for mr approach x sentencing and i don't see a particular number in there but it is possible that they gave one i just can't recall one ok what i think you are well what's the point when you know the jury before them so they don't know what you're referring to right yes i am i understand your honour's question there's nowhere in the record where the there's there's examination defense counsel asked to approach and the defense the court denied that because the court later explained it doesn't grant sidebars and then they after miss montoya had left the stand and when ms ramirez was being questioned defense counsel then said well your honor we wanted to impeach ms montoya by you taking judicial notice of the regulation now it's the court denied that it's not clear that that was an appropriate use of impeachment first because miss montoya had not actually said anything inconsistent with the regulations there was a dispute over whether the terminology applied to the certification statement but that but it's also not clear that that would have been proper impeachment you understand it to mean they did ask him about the regulation and so of course did proffer affirmative evidence of the regulation elsewhere your argument is that this is sort of harmless because he was able to to speak the regulation and speak to his good  where do you think we should find in the record the most fulsome statement i guess it's going to come in somewhere through mr pro shack where they where they were allowed to simply introduce to the jury the notion that they relied on th judge's pretrial ruling the judge says that the this is that one eighty of the excerpts of record the government has moved the court to exclude any misstatements of the law in opening statement or by argument of counsel and the court said  there's a few pages but the court says as to that portion of the of the motion i'm going to grant that and i think the judge said however since the defendants are testifying that they relied on the special rule i'm going to allow there to be evidence of the physician's sort of occasions statements of the reliance and i'm going to allow liberal leeway in cross examining ms montoya so there's no express discussion other i'm asking a different question if i could and i appreciate those references i think those are the ones i've got though yes where do you think since it's your position that i think it's your position that mr prozac was pro shack with allowed to was allowed to explain his good faith defense where do you think i find that in his testimony most vividly i believe it was at eight forty three i'm sorry let me find exactly the reference for you ok but he was honor now the jury disbelieves mr projects testimony in part because he himself testified that the run sheets were important to bill medicare and because there would have been if it were true that the defendants relied in good faith on the physician certification statements there of course would have been no need to falsify the run sheets why would you risk exposing yourself to fraud by falsifying medicare documentation if you believe that you have the document in hand that conclusively established medical necessity i think what this comes down to is the jury simply didn't believe mr prosek testimony the district court didn't believe his testimony said it's at sentencing that he was not a credible witness and that's why the defendants were honor your honors as to this issue of why would there need to falsify documents if there was no intent to commit fraud i would suggest a gurney whether they were they can walk or not and what i would suggest is that the just like in and record where there they have an ophthalmologist who had a certain test permeated by fraud because it wasn't permeated by fraud you can just assume that it was intended to submit a claim for unnecessary procedures thank you counsel case just