next we have the united states of america versus thehotel henderson so we can give you our full the full attention of course i need your full attention i need your help i can't help either one of these oh yes you are yes you can and you may proceed thank you thank you judge bruce harvey may of two thousand and thirteen the v a was so counseled start interrupt but just so you know and you can spend your time however you choose we've all read you know the facts and the briefs and we're very familiar with the documents in this case but you can spend your time so the question is do you have them i think that we're i am here  to to try to parse through this particular record you have told me that you are familiar with it in order to argue to you that mr henderson had no commit any one into if he made statements they were not material sufficient to go to convict him under ten thirty five or a thousand and let me ask you about the materiality issue first it seems like we would have to consider that under a plain her standard is there some reason that we wouldn't it seems like during the trial that you had stipulated that the only thing that was an issue was mensura and my reading the record wrong no you are not reading the record wrong however i think that in the materiality aspect of it comes a general rubric of sufficiency of the evidence because the united states has to prove every element of the crime be reasonable doubt one of those elements in the sufficiency determination that you make after rule twenty nine motion now rule twenty nine motion in this case pacifically dealt with intent but the sufficiency of the evidence as a whole in compass is the materiality argument so i would argue to you that just because the argue the rule twenty nine in and the motion for new trial focused on intent you still get to determine it not under the plain error rule but under the sufficiency of the evidence rubric ok so let's just for the moment assume that we and it's in for a very interesting theory and you might be right about that but if we decide that we don't accept that theory is there a case from our circuit or from the supreme court that would demonstrate that he was plainer here on the materiality issue while the other than reiterating the cases that were cited in the brief i can't give you a direct citation on the generally so you have to say that you have to fit the facts into into that and i think that's what we tried to do in our grief to say look this couldn't have been material because nobody could have relied upon it in making the decisions that they made and that's the general test so i think that it's a mixed question of fact in the law and under the facts of this case you can not find that there was a sufficiency of the evidence as to the materiality argument and same thing with the intent argument in this particular  and i think the record is very clear on this that there was nothing nothing told to mr henderson to say boy the national v a policy in this case does not apply he wasn't part of any special training for the third largest that how does that change the fact that he told the people that he was having that he was supervising to wri that's what he understood pursuant to the e mails that are in the record that the government introduced in this case he vigorously objected to the procedure that he was told to implement he said it ministre toure's cannot close concepts and that's what he said to a supervisor and his supervisor wrote back  and big u s terms and specifically said that boy these things i'm not going to argue with  i'm not going to argue with you these are passed consuls prior to being implemented that were to be closed when they can't claim was processed for payment that meant that the services w rendered documentation along with the claim received bill processed consulate that is the bottom line and when asked when asked specifically the supervisor who wrote that e mail was asked and this is a page two eighty nine in the transcript so he could have possibly misunderstood your instructions or right answer yes word in the instruction and he could have misunderstood it what about what about her e mail that said the consulate files are an active slash slash schedule status they're not completed it says sure i'm giving you files they are not completed and closed but then then after that is when the e mail says these are the ones that need to be closed there's no evidence that he was directed to say that the treatments have been rendered or the patient has refused because of that and you're correct about that there is no evidence that he was given any training as closure proceedings there's no evidence that he was told that the v a that the general v a policy was not in effect there is no evidence to show that he was told that there were new procedures in line and that and that it ministre toure's could close files there's no evidence that he was told that there's evidence that people got training and other supervisors good training but not mr henderson let me ask you before you sit down do we have jurisdiction to consider the sentencing argument in light of the cartwright case ok good good question i wish i knew how to respond to the current rate case you tell me what it says and i'll tell you why it doesn't apply well my understanding is that mr henderson did not file a notice of appeal following the district court's denial of his motion to reconsider on the sentencing issue and at the current rate case as he would have to would have had to thing you then can't file a notice of appeal or we're talking about timeliness for filing the notice of appeal because he did object it was litigated at sentencing so the interesting can you do what can you do it within a week yes of course and then if the government wants to respond to the government may have an a week in response and can we do it in five pages or fewer please the court good morning your honors for the united states the trial in this case lasted five days and it consisted of the testimony of forty five witnesses and one hundred twenty two exhibits after hearing all that affirm for those very same reasons on appeal mr henderson reasons for arguments that amount to sufficiency of the evidence but either way on not one of them has shown an absence of evidence for any essential element for that for the government offered instead he merely points to his countervailing evidence which was less and weaker than ours and asked this court to reweigh it that's inappropriate and may or may not have been less than weaker but it wasn't accepted by the jury not at all your honor not all accepted and to the extent there is a conflict in any factual evidence then this court has as if deference to the jury of factual findings and as to infer that the jury made all findings in favor of the verdict and it to the extent  this court wants to weigh the credibility of competing evidence then it can only discount our evidence if it was a fact that that witness cannot possibly have perceived or it's contrary to the laws of physics and there's no such possible argument in this case all the facts were about the v a policy proper procedures both before during and after the mandate the best example of this comes in his argument that it has to be lacking intent for either of the  lies for which we convicted him or our evidence of his intent was frankly overwhelming there's no he had to act knowingly and willfully for both the crimes with which we charged him there's no question that he knew that telling a lie was a crime he knew that because every time he logged on to the patient system which he did thousands of times over five years he encountered two warning screens that told him that misuse of the patient information it can be a federal crime he also attended annually to training sessions in the ethics and legality of operating the patient records on the system so he definitely knew that the false statements he instructed his employees to use could be criminal but this is an unusual case because because normally under the statute the situation would be that someone's doing something to do fraud in medicare for example something that affects the taxpayers can you tell me how what mr henderson did was material to the program the v a program as opposed to the patient care and patient care may be sufficient but assume for purposes of my question that needs to affect the tax payers of the four hundred yes that's a good question we charged him and for those first fifty counts under section one zero three five false statements in the context of health care that statement makes it a crime if the for the makes the false statement in connection with either the delivery of or payment for health care benefits in this case his false statements was immaterial to both the delivery of payment your question print was premised on not on the met the clinical portion but he definitely it was definitely material for the payment of health care services  in three ways first he instructed the clerks to not do their required review of the patient record so that materially influence their decision they otherwise would have done i was i remember he thought he sa the allegation that his supervisor mary beth prayed of instructed him to blanket lee close all two thousand seven hundred because they are the services that are being rendered it's frankly a distortion of the evidence his claims based on an e mail exchange supervisor on february fourth two thousand and fourteen that's right in the midst of a clean up mandy and that's before he committed these crimes and she instructed him based there's three three sentences and it just says three things i'm not quoting but i'll but the first sentence says that there are thousands of pending consulates in back to two thousand and twelve quote that need action on them unquote she did not tell them that they were clues she did not tell the services were already rendered and she told them they need action not automatic closure the second sentence when she describes the proper procedure it's important to note that this is the same procedure before during and after the consul the demanded process she says all along from the beginning the consulate was to be completed when the claim was processed and the document received and that was not done so that is not telling him that all these paid all these services were rendered it just telling him reiterating the the true process which he already knew because he followed it for the previous five years then the final sentence of her e mail asks him to review the quote to review these and close these out or appropriately mark them unquote she did not instruct him to close them all out she said do what needs to be done follow the proper procedures you've been following for the previous five years look through the file if the claim is processed and the documents are received then close them out otherwise appropriately mark them mark them such as services not rendered patient cancelled patient and sent didn't attend any of the schedule appointments or any of the other procedures but she definitely did not instruct him to close an all out i'd like to discuss the rest in the email chain if i may i mean to this very clear instruction anderson simply responded that he only has one point five nurses working for him and that's not enough to do of these she then responded that nurses are not responsible for closing out the concerts she then reiterate again that the process he should have followed she wrote the process was quote the deal was the consulate gets closed when the claim is processed and that was a process that was supposed to be in place since consul tracking came out again she just reiterate the proper thing to do in response anderson again says i just don't have enough staff being implemented that were to be closed when the claim was processed for payment unquote craft process for payment can only be done when a clerk gets in the patient records sees that the outside provider has sent me a bill for services or notes or if it's a request for radiology the results of the picture and then the clerk process is his bill for payment so you can the clerk would never know that happened unless and until he or she got into the patient record which them not to do another hour zero in the defendant's quiver is that he he argued that he knew that these he was under the misapprehension perhaps it was his belief and the question of whether he will feel he didn't should not what was the government's evidence contrary to that your honor he the evidence was and contradicted that throughout this process consulates did not expire we know that definitively because if you will henderson himself for the previous five years before these crimes closed out personally over seven hundred pending consulates according to the proper procedure and a handful of them were from prior fiscal years at the outside the current fiscal year that's our testimony of which is shave the desir the transcript pages it's five fifty one five fifty two before the whole mess started he himself closed out concepts that were more than one year old we don't need any more evidence in that book but i have it i have it nevertheless because all our major v a witnesses testified that from the outset the purpose of the mandy was to tackle consulates that had been open for more than ninety days but as long as five years if there if the consulate automatically expired after one year then why would the v a tackle them for five years old it would have been much easier much more conducive to the clean up to automatically close anything over one year old but that's not what they did they did close those over five years just on the presumption that that was no longer medically necessary but they specifically instructed every person throughout every a facility in the whole country to tackle open consulates as old as five years at another point he also argues that the the consulate expired after sixty days again that's that's incorrect he's confusing the consul with the authorization under the standard v a process a doctor perceives a need for his patient that can only be fulfilled with outside services the doctor creates the consulate then a nurse goes  and creates an authorization and that authorization to pay for v a to pay once the services are rendered and the the evidence that we have we've introduced dozens of consulates copies of consuls and the record they'll show at the very bottom  the authorization expires after sixty days but not the underlying consul y proper review open the record seen the patient never got the services then then they would have forwarded to a doctor who could have issued a new consul so that he or the patient he or she could finally get the important services what about his argument that no one would have relied on the statement that they put in the files and closing them that's we just prove that so many times and with many of his own witnesses it was meting it was material is that a first we don't have to show reliance or that's b materiality that's kind of a low standard we just have to show that the false statement was capable of influencing a decision of the v a m c and we did that multiple ways of first we did it influence the decisions of the  workers in at least three ways first it prevented them from reviewing the file which of course was standard operating procedure it also prevented them from contacting the patient another another procedure was if the file didn't show that the services rendered the clerk could call the patient and ask him or her and discuss it so his fault so that it totally eliminated the ability of the clerks to do that excuse me it also eliminated their ability to forward the opening counsel to the attending physician remember that was the whole point of the clean up mandate we had two point one million open consulates and the concern was a lot of gray veterans weren't getting the important care and so the idea was to clean up all those that were that were no longer valid so that the the physicians could focus on those that still needed the care and his life prevented that from happening here if they had if the clerk said look through that then what they were supposed to look through the file and seen that the patient had not received the services then under the explicit terms of the mandate the clerk was to forward the open consulate back to the and national physician for further review and so this whole process short circuited all that influence clerks in three those three ways it also it also influenced the subsequent physicians decision you know it would delay the physician's ability to give the patient the care she needed that the the medical necessity that prompted the physician to enter the in the first place this his lies were more material all over the place almost every witness testified and even some of his own witnesses who testified on behalf we showed them a copy of the language that he instructed the revenue clerks to to issue and they looked aghast at it they said my this is bad this doesn't make any sense the young the only other organ i'd like to address is the claim that v a policy required medical people to close consulates again i mean that's that's never been the case are it was it couldn't possibly the case because henderson himself closed them for for the five years prior to committing these crimes he supervised four feed division clerks who were not medical personnel who closed clear consulates every day as a routine part of their duties who certainly are conflating administrative leave closing all file from its counterpart is that it's clinically closed now you can bill mr henderson was bill or closing the file closing the console required in the record is extremely clear on that that it was v a policy as follows and i  is at page two forty eight of the transcript to two forty nine quote aging non v a consulates should not be administratively closed without an appropriate clinical review that honestly nobody nobody ever told mr henderson that ok now we can administer a de vry close these files that's why and i think the government is being a little bit disingenuous with the content of the of the e mails that's why he writes back to to his boss consols our clinical marybeth and have no impact to claim processing you have given us not enough staff you've given us a task to do the mel's which is a different task we're busy doing that and we can administratively close these no one no one said ok we're going to change the rules for this for this backlog and i am going to tell you that you can administratively close files he gave those clearly ambiguous instructions because even every one of the government's witnesses said we don't understand that the wording on the closures services rendered or the veteran refused the service it's clearly contradictory and we just don't understand it so that couldn't have confused a contributed materially to anyone's decision making indeed everybody either testified said boy that was confusing we'd have to follow up on that and that's precisely what happened in the government seems to want to lay the lack of  the i didn't get this treatment yet they knew in two thousand and fourteen these files were reviewed in two thousand and fourteen so the v a is saying we waited two years so that these witnesses could come in here and say i haven't gotten the treatment but we didn't treat him anyhow i mean it's as bad as that how does that help your client well because the argument it whatever he put mr henderson put on these files didn't happen yes that's correct exactly that's how it helps my client or mr henderson  secondly you know the prior files that he closed he closed them administratively he did his job then in no way shape form or fashion shows that he had the authority to make clinical decisions and that the files were closed because fees were paid in clinicians said you can close the files so i think that's another red herring when they say boy he closed a bunch of files beforehand yes he did his job  did what he was supposed to do he followed policy and their policy was they couldn't be closed it ministre to valley without criminal clinical review so the delay is not attributed to him  he close file close prior files but that didn't have anything to do with anything and you know he and the record shows that his instructions were only to review aging consols and that's the testimony of vicky donor page one fifty seven only those in the last fiscal year that's at page one fifty seven in the last fiscal year was ten one two thousand and twelve to nine thirty two thousand and thirteen plus the testimony in the case in my last fifteen seconds on page seven eleven seven twelve from witness georgianna alston most of the console's that i worked on if the patient hadn't been seen the console it was already expired these were expired aged consols that were close within and big you were statement  and the evidence of mr henderson's intent simply is not apparent from the record and you have the right no thought he to say it ain't there reverse it thank you thank you count all right