they judgments and in fact made a lot of judgments about the wasin your client's favor and ended up at a specific number that he thought was factually correct right that's what he  ok so how was he clearly erroneous by virtue of the fact that any acts of deception occurred in response to the august two thousand and ten high mark letter and not t's about how to fill out the trip she's right all that occurred post august two thousand and ten and help me understand maybe my colleagues understand it as i'm the only one it doesn't probably understand why that timing makes a difference if the loss if these were losses occasioned by your client's unlawful conduct even if it's coverup  what you seem to be saying is he can't be liable for those losses because that has to do with the coverup and the coverup doesn't really count my interest in your argument right no so much the coverup because by virtue of the fact that there were four thousand well when you say that that that is a question of fact that's what i'm trying to get out you're saying without shows that he wasn't being fraudulent but judge carter looked at it and said no i think he was intending to defraud in those circumstances and that's so the fact that he did he gaging cover up after the fact how does that undermine the judge's determination that before the coverups act all of the beneficiaries those are you know we can get into medical necessity in a moment when we when we talk about the regulation itself and your position that having a scene and then by itself was enough but the existence of a certificate of medical necessity by itself assuming assuming that he had those and rights instances is a fact it's one factor right  are we moving to a position where you're saying it is a determining factor there's a known appropriate way that a court could look at the facts and say fraud if there is a c n n there is a court can theoretically say there's a fraud if there's a c n n but the point i'm trying to make here is that there has to be a causal connection between the defendant's acts and the ross appears to be saying to me that that calls a connection could have does that mean that everything that came before would necessarily flow from criminal conduct i see no but i don't understand that the be the factual scenario we're dealing with here you can point  me to the record where something says to the contrary but i i thought the position that the government was taking and that this record accepted was not that there was some  that retroactively tainted earlier good behavior but that there was fraud throughout and they made their case they put on evidence and you put on have your quiet whoever was represented by put on evidence and the district court judge it always said i think there was fraud in all these instances amounting to this amount of money and the logical challenge of having  is with your assertion that somehow the high mark whether it is a definitive marking point that there's no way to this record judge could look at that pretty high mark where behavior and said there was fraudulent intent there there before that could be fraudulent the i'm just trying to figure out why you think that's the case because fashion there was nothing that was done that was shown by the government pretty high marks a letter that was reflective of fraudulent conduct and  necessary transports when at the point in time that the transports were made there was a medical necessity determination oh yes there was going to be her determination but as judge jordan has before you can f rajan conduct even if you the fact that maybe at some point when that high mark letter came to mr said chuck's attention made a bell went off in his head to say you know what i have to hide and look toward abilities are the beneficiaries in order to get paid by medicare medicaid it doesn't the mere fact that he would that indicate the government seems to argue that he did that there is a guilty mind there healed or stupid that what he was doing before was unlawful you cover something up if you think  awful you cover it up if you think it's unlawful and he thought it was unlawful and that's why he started covering it up but that's a question of when that mindset came into being the word that belies the suggestion that he the inception that the end of tory abilities of the beneficiaries would be relevant in medicare suspicion of pay is the fact that there was some four thousand trip sheets that were uncovered that he wasn't covering his tracks as well as he he thought later and needed to cover his tracks but he knew what he was doing was unlawful because he had people right around with them who didn't need to be right around them and he believed and he knew  they should build them i've looked at all the evidence i've heard from experts and i look at this and think no smart guy like mr soup owning and running a company is a young man successfully as he did could have done this without knowing would have been some evidence in advance of behind mark matter that reflects that mindset that's the point if there was anything out there that the district court could say that's reflective of criminal activity pre august two thousand and ten i see your point is or is there anything under say asking questions i'm not making points is there anything in the  some light on this did your client step up and say i'm pleading guilty but not anything that happened before that i am mark later i'm i'm guilty of fraud but not for anything before that i mark it by virtue of the fact that he  and that's reflective of the fact that any criminal conduct any criminal idea sure came into being posed by mark later right now with respect to the c n n but the fact of the the centers for medicare and medicaid services was required to issue a rule that basically publicized then what occurred to were they required to he said they were it was so muddled they were required to do that the that indicates that there was such general confusion that this was of course only government or is this just sort of would marry agency clarification comes along i say it's a letter by virtue of the fact that there was some there is required to issue clarifications how can you hold an inference owner couldn't responsible for not knowing what the clarification was or what the absolute was when he transport of the patients is there testimony to the prepared to hold an individual criminally liable that extends his prison term that increases this restitution than increases since fine when he says when the federal agency that's  that led to the offense or conviction it was not and in and of itself it was a means to an end and the means to an end would be to cover up fraudulent activity and billing for non medically necessary medical transport that is how you look prior to the high mark letter because at the time of the highmark letter you mediately have the defendants starting to alter trip sheets altering cnn's giving guidance to their e m t days as to how to properly report trips how to phrase things yes that is going forward looking forward but is also covering up these specific fourteen instances of trip sheets that they felt was problematic in any high market and it is reasonable and certainly not clearly erroneous to look at that and say they are attempting to escape discovery the well let's assume for the fifth sake of discussion that you know we were quite agree with you on that point there are other arguments that are made by the defense that i'd be interested in your response to  the case so it cannot be that an abuse of trust that he has it is warranted in every fraud case something more has gone on here and there was no position of trust that mr swift chuck held with respect to the federal government that's i understand the tenor of their argument and i'd like you to respond to the the specific point to make that he just didn't you know this was an arm's length contractual arrangement that a contractor had going forward there was no fiduciary responsibility there is no position of trust that you can point to what's your answer to most of this is certainly you look at this court's precedent as to how do you determine whether there is a position of trust and whether that trust is going to be used in tie we look at you know what the stablish is a trust relationship is you know what is the position of the defendant where we would say well yet he's a business guy that's it right i mean in the in the other cases we've dealt with it's been some medically trained person and the reason that they got tagged with the abuse of the position of trust was because of this sense that society has to put trust in people with special medical training this is a guy who drives a bay out hires people to drive but they are what makes him so special that society should look at him and smack  own because he does that he just happens to do it and the government pays for no i wouldn't agree that it's quite is simple is just driving a van and we are talking about dealing with patients some of which are bad confined  placed in a president who has the ability to do would mistress of shut did hear her documents and cover up behavior and avoid additional examination or attempt to avoid additional examination from the united government and its agencies as it's dealing with departments that are spending millions hundreds of millions billions of dollars and simply can't examine every single contract he say he was  certainly attempt to obstruct justice and commit crimes and still abuse a position of trust you know just the the attempt it could have been successful it wasn't in this case but it certainly could have been successful and why could it have been successful because he was in a position to falsify documents as the president of the corporation of the company and was in a position to submit that to a federal agency even through hi relationship between medicare and these medical providers and the fact that medicare is such a huge agency that has to rely on the integrity of its providers because it simply cannot  even the previous version of the regulation required medical necessity both looking at the general rule and also in the wording of the the specific rule so so you your position i'm still trying to find your limit saying if you do business with the federal government you're in a position of trust because we can't do it ourselves you get we have to trust you to do it ipso facto you're in a position of trust what's different about what i just said than what you just said well i think it's  multiple factors i agree that if you take each one of these individual things they may not be enough to simply say this person's iteration is abusing a position of trust that being said if you take all of these factors together what other ones w a company was clearly a position of trust with respect to his employees i mean if there were other owners which there were perhaps in a position of trust with respect to what we're talking about doing business with somebody in this case the federal government what is it that puts him in a position of trust with respect to the government other than the fact that he's doing business with the federal government the nature of the business the nature that it's providing services to patients and they specialized area we're not talking about a contractor here who business and it happens to be an area where the government spending billions of dollars and can't afford and simply doesn't have the resources it's double check everything after the fact there has to be some problem of trust in the integrity of the providers is that this is how does this work from the perspective of the ambulance service provider in terms of having these patients go for dialysis they get a call to transport the person how to believe that how are they to do they have a certificate of good medical necessity how are they to decide this person doesn't require an ambulance well i think part of that is you  rely on the actual visuals i understand it and that you don't necessarily have a president of a company who is medically trained it is certainly possible that these companies could have a medical professional on staff they have yet to use who are reporting in this case to this person doesn't need and will once transport the evidence that was presented was that we had individuals who were being claimed to require medical transport to require ambulance transport when they themselves were driving their own cars around town going to the grocery store and going to church walking out of their house down to the curb to get into the ambulance with with care it was testifying that they were able to use wheelchairs to get around that you don't need medical training to it we set  not reference those and with authority abilities anymore that's in the government's view pretty damning evidence that he knew that this was problematic and didn't need to be a trained doctor to know it was problematic but could boast and testify that anteater not qualified of the fact you had e m t saying was to make out a prima facia case for ross amounts and whether something was medically necessary or not it was more through the testimony of on our own expert as to the actual medical necessity towards the patients that's the approach that we took but again it would seem very obvious whether to a lay person or particularly to any entity if you had someone who is said to absolutely positively need medical transport in one case because their doctor said they were bedridden and yet they're getting up and they're moving around and they're going into town and things like that let me ask if i could about section eight c three we were the guidelines   out of the fact that mr suit chuck is advantage advantages mistress of chuck if you're talking about the pocket that the money's coming from is that fair i think that in situation here i don't believe that mr should check raise that in the district court and therefore i don't think was put before the court and certainly permissive there the courts are not required to do that at that point and i think ok with the court is going to take the position that they are separate beings and i shouldn't count one is against the other then how is it that the government proposes to collect the fine against  hand you don't have to think about mr souped up while you're fighting advantage and then when it comes to correction fine sand suit jacket advantage the same we can get the money from chuck to be perfectly honest that would be something the pros with a financial know it and i really don't have a good answer to exactly how they would intend to recover that but it seems likely that they're after the frozen assets i think that is probably very likely yeah you know that's problematic in the face that this person was going to transport whether it could be saying that but it could also be saying i got somebody to sign this but clearly it's wrong because they're walking down the block to get in the ambulance factor to take into account they are not dispositive of whether or not the individual needs transportation my evidence to dialysis by virtue of the fact that dialysis creates hypo creates a number of manifestations that that are believe trysts to the patient so simply because the patient might be able to walk doesn't mean that the patient automatically needs wheelchair van transport also wise we're talking about fact finding and right we're talking about somebody is going to look at the evidence and make a judgment about whether mr suit chuck could reasonably have relied on the sea amends or whether it was so clear that it was fraudulent what he was doing right it's a factual determination what was going on in the mind of a reasonable person like mr said well i would just suggest that it would be a hobson's choice for him to it disregard that pennsylvania statute and god forbid something should happen and then what happens is that sued for the death of a patient that's where he sat