who was on the panel that was an african american mr staples was the person that was excluded by the prosecution they were both i think a step too in a step three violation of the by the batson rule in this case with respect to the exclusion of that witness of that year the facts are that the jury was asked questions generally from the bench rush's counsel objected to it in first objected the fact that it was the was the only person who was african american on the panel that was being excluded the judge denied that basis that you weren't entitled to a specific set of prosecutor that he should state go ahead and state the reasons that that exclude the juror and at that point in time step two came into play step two was not  sufficient in this case because of the reasons that were given the lack of particularly to the facts and circumstances of the case the record does not reveal the age of the jurors of any of the jurors yet the prosecutors said that one of the reasons that they were striking mr staples was because he was fairly young but the fairly young was not tied in any way to the to the particular facts of the case there were no questions asked of these jurors in terms of but the prosecutor offered other reasons just a court bench that could confirm that he had observed as well again there are two other reasons the reason the demeanor based reasons were that at some point in time during the four dire mr staples had frowned and it or nother time that his eyes were closed but that's only an validation of what it is that the prosecutor saw it's not part of the step three analysis of why it was credible or not the prosecutor failed  correct connect its demeanor based reasons close dies and crowning to mr staples ability to serve in the case there must be some sort of explanation given as to why those reasons are that private if you're worried about a juror paying attention  isn't that an adequate reason having said that that's an adequate reason for but that's not the reason that was given the reason that was given is that the juror was had its eyes closed at times don't you think it's implicit in when we get concerned because it means they're sleeping and i understand that i'm not extent that you have but i've tried a number of cases well and when i see jurors in the well that are doing that it causes some concern but that's when you bring it up to the court or that's when you ask questions about it in this situation let's say you were of your position is that wasn't adequate what was your what there wasn't any there wasn't any connection between the fact that the eyes were closed and that the person was not paying attention there wasn't a statement by the prosecutor that the person wasn't paying attention the trial court did not say that the person wasn't paying attention the defense counsel said that doesn't mean that the person is not paying attention and there's no defined the significance of his having his eyes closed is that but let me ask you this what is the we have not always fared as well as we might in vats and cases with the supreme court what is the line of cases snyder miller l miller want to miller all to our case is the talk about the fact that when we get to step three with the next part is that even if you were to find that these were facially neutral reasons if the prosecutor made those in the court and made a determination saying yes i find they need to be facially neutral to the court didn't comment on two of the reasons or provided this or step three well but if person step two didn't you say that they were facially neutral just commented that person's eyes were closed and on occasion when you go to say i was raised wondering what whether there was any case on the facially neutral issue when you go to step three there has to be some sort of well chinchilla in this case i think caster to some extent in this in this court as well talk about the fact that there has to be something connecting the case you know connecting the reasons to to the the situation that he had asked and cast or you had you had you had out a number of jurors that were all taken out all shared characteristics of the explanation by the by the d a in that case was it was very it was clearly race based i understand but th principle that they were talking about in terms of there being basically neutral reasons that was also discussed in places and i don't mean if you're paid so i'm not trying to say it would it isn't but i the principle of that i mean if i skip to step three is that the judge then never made any credibility determination as to whether or not these reasons were in fact pretext or not and that's what the do i would have i would have to in the district judge adds that he saw the same thing in fact he actually adds something to the to the facts that the prosecutor said i did he says i noticed i will note he was having his eyes closed many other aspects of the jury selection process in fact i noticed even as we began the board here process he already has his eyes closed for a period of time so that is the record but that's not making the determination that step three requires which is that the judge make a credibility determination as to whether or not those facts are not just raised neutral but that they are not a pretext did not provide two you go to step three the track court must decide not only whether the the reasons are race neutral but whether relevant to the case and whether they were genuine reasons not just a pretext and that's green versus the mark and lewis versus lewis is no different really isn't that exactly what he did by saying on the record i've noticed the same thing i've seen it with my own eyes isn't that a credibility determination at all that is a step to confirmation so what did the court have to say that the court didn't say the court would have to say that i've evaluated the evidence i've looked at what the reasons that you've given and i find that they are not because he doesn't use those words then we then we have to reverse well it's not a matter of just yesterday we said this we said this back to this court for a further evidence rehearing what you think is going to happen that would be a waste of everybody's time no i think you can reverse it on the record you have in front of if we sent it back to the district judge and did you find it was a pretext this would be a waste of everybody's but the court doesn't have to send it back for that determination you want us to make the determination  it was an inadequate as a matter of law and that the conviction has to be we were that's correct because it was pretextual no because because there was not a determination by the truck work at step three as to whether or right and then snyder the trial court silences to frying it prowling the basic principle precludes some sort of deference no credibility to remuneration was made by the court the trial court sat silent on the fairly young explanation no sensitive inquiry was made as required by batson forecloses approve a presumption that the that the reason was genuine the trial court agreed that eyes were closed on occasion that statement merely confirms that prosecutors saw this statement is not a credibility finding that this court can defer to and that's the difference between step  credibility he didn't say that what he what was he said was true in the sense of that's the basis for your reason and i understand it and i find it to be a step three situation what he said was i agree i saw that his eyes were closed but the prosecutor never asked any questions of this particular juror with respect to those issues and i a if you if you analyze all of that what the court did was that every medicare claim from one nine hundred ninety nine to two thousand and eight was fraudulent and then when you started to analyze as i think we did in the brief is starting to pick out those certain portions you would say that say for example all of triple zero and b n a the two corporations that were owned by the husband in the bother all those transactions were fraudulent and it's based on the testimony of one person who worked there for four to five months and another person that worked there for a year now that cannot cover an entire period from one thousand nine hundred nine to two thousand and eight in the same way there were other witnesses that testified about the fact that there were there were individual transactions made but they only worked there for a period of time the marketeers and doctors as well did not work for rice the entire time that she owned those companies so you had one doctor dr glover testified that thirty percent of the transactions that he did in the prescriptions that he provided were valid they were not false so if you take that you've got thirty percent of dr glover's transactions which would have to be taken off the amount and the amount was eight million so how you calculate it down if you get it under seven million dollars the amount of enhanced money is significant the c n n ns were not required all the time during the  ninety nine to two thousand and eight period there were a time period from like think think two thousand and five on were certain items were not soom ins were not required there were other periods of time where that they were not required so if your year is your argument when when the court decided that all of this is going to all of it's going to come into play without looking at the individual transactions to see exactly where it is that those amounts came from and whether you could base that i mean you can't you know the fact that no one testified that every company filed was incomplete or missing documents yet the court found that all of the files were incomplete or missing documents so all of that was based on speculations so the ultimate decision to come up with the seven or the eight million dollars is based on partial evidence and speculation as to the rest or inference and to do that in this situation violates the process there was you know dar but employees replaced equipment if the wrong equipment have been delivered missed rest called customers to confirm they had receipt of the equipment so all of those things would have to be taken into account working against the amount of money that was actually determined to be fraudulent and so just painting a broad brush because there were fraudulent activities along the way to then say all transactions for this nine period were fraudulent is is speculative and is an improper inference and therefore the amount of money restitution can't be considered is valid and can't give you a twenty point increase in the enhancements i mean she had a criminal history of government offer of race neutral reason for the strike and here it absolutely did what the prosecutor actually said was that juror has been frowning i've watched him during jury selection i just looked over at him his eyes  closed in addition he's fairly young and given his demeanor throughout jury selection i believe his demeanor may be bad given his close ties and sounds now at that point the district court as the panel has already noted explicitly credited what the government had said the court said i will note he was having his eyes closed during many other aspects of the jury selection process in fact i noticed even as we began t process he already had his eyes closed for a period of time so that is the record that was absolutely adequate to making a credibility finding as to the government's proffered a reason to the district court then went on to read step three having credited that reason the race neutral demeanor based reason that the just that the government offered he said to the defendant now it's your burden to show that this exercise of challenge is an improper purpose because i find that ms can misstated a proper purpose for this exercise a factually proper basis for the exercise of a challenge it is now your burden to demonstrate that is not true whereupon defendant made almost no effort to a starting point i'd like to point out that here the government proceeded under an amount paid theory that was the amount that medicare actually paid on the project and claims that were made there is a rule this court has now  announced a rule under papa of that actually the government is entitled to a presumption of intended by us a for any claim submitted to medicare so what the government actually done here is used a very very conservative theory of last we didn't use the amount billed to medicare we use the number actually paid to ninety medicare so as a starting point we're starting from a much lower position than we could have needed and then we necessarily need to actually paid by medicare to the defendant i apologize so we know that for an example that the defendant submitted fraudulent claims of sixteen million dollars we only saw at the time that eight million that medicare actually paid her will gives the her clinic through fraud through marketa so that was that there was testimony about that at trial and there were also exhibits to that effect and i will point the court to certain testimony the testimony of erik garcia who was the defendant's employee from two thousand and two or two thousand and three all the way to two thousand and eight she testified to the ramp that use of marketers at these d m v companies she testified that the defendant tracked the use of the marketers and something that she called the big books and i have a site for the big books as well that is  that also shows how she distributed these prescriptions across the companies she had four that she owned and operated two others that she controlled and she was distributing the prescriptions across all the sources of the government's theory that the no legitimate qualms it is and so let me address a couple other things that defense counsel mentioned he said that there was testimony from a doctor that there were thirty percent of legitimate prescriptions that were written even if that were the case and he did say that on cross examination those claims would still be fraudulent because in every instance he also testified that he was being paid five hundred dollars by a marketer to write that prescription and the marker was also being paid by the defendant so even if there were instances made a finding based on all of the evidence that the entire scheme was fraudulent the district court also made a finding that defendant owned and operated the companies owned by not under operate controlled the companies that were owned by her brother and her husband that was beyond and triple zero and the evidence of that was that these companies were operating at the exact same time that she was operating her fraudulent companies the same employees work there the same of fraud was the government proved i think the government proved the eleven specific counts of health care fraud i mean the government's not going to go and prove one hundred counts of health care fraud i don't think the district court would tolerate that but the government certainly presented evidence of widespread fraud but in the indictment only charged ten instances up and urged if the any connection to this or no bank records were interviews that said she involved in it there's no you know managerial documents that she was there part of the evidence they used to decide she was involved a triple zero and piano was the fact that she had on her wall and the phone numbers of those two companies well there wasn't even a evidence that she could get those phone numbers or put them there and in fact why would she have the phone numbers of her husband's company in her brother's company and then lastly with respect to batson which i understand the court's questions indicate a difference of opinion in the mind but the prosecution's failure to ask mr stables any questions about the subjects of a stance of all concerned suggest in the language of miller l suggested that explanation is a sham and a pretext for discrimination prosecution did not ask mr stapleton a single question and there has to be more step three requires the truck more to do more than we did in skates thank you