on a key difference between the false claims act and more traditional types of common law for a second the district court wrong police screw the government investigation reports that were relevant to an essential element under the false correctly on the credibility of key witnesses as to the first issue there's a major difference between false claims act cases and other types of fraud and that is that a plaintiff is not required to prove that the defendant had a specific intent to defraud the government unlike in common law fraud cases where one party must prove that the other party had a it your contention that something in the instructions suggested to the contrary that there was a requirement of specific intent to defraud not no not specifically to the contrary told the jury mere negligence or a mistake is not enough but by not giving the necessary context in the statute that on the other hand dr over it was not required to prove specific intent that these were therefore an inaccurate and incomplete explanation of the law to the jury now this is important you talked to me about preservation of your argument yes  and therefore under supreme court cases as well as certain fourth circuit happened after that he instructed the jury walk let me let me back up what he did during the charge conference the district court outlined the general topics right that he would instruct the jury and he did not provide written instruction the written instructions to the parties he did not tell them in any detail what the actual instructions were going to be he then proceeded to instruct the jury right and at that point he actually excuse the jury and then asked if there were any objections right on the record and then you laid out your  prior ruling was the defender rejection of the instructions on the on the right or asked you after he would give it in the instructions if you have any objection and you said no that's correct i just want to be sure i understood the record i think we really read the rule and the change to the rule differently so if you want to offer me any argument about that i'm happy person well thank you roger and as we noted in our brief there is the supreme court decision and justice scalia's concurrence and conduct the thompson in which he noted that where the district court in that case rejected the pardons proposed instruction and said i consider that summary judgment i'm not giving that instruction that that was sufficient to preserve there are same subsequent interplay between the district judge and the lawyer in the supreme court case that there was a conference the district court first only provided just a general outline of the topics on which you would instruct the jury did not provide the actual instructions before before giving them to the jury there was no opportunity to object before the jurors deliberations began and more importantly the at the point at which the jury asked to be instructed again came back to the district court and said can you please tell us the instructions again when the district court told the jury about the science requirements he limited his instruction to says simply three the defendant knew the claim was false or project at the time it was made and again provided no opportunity to object before he excused the jury again to deliberate but more importantly that terse abbreviated instruction on science were made no mention of  deliberate ignorance or reckless disregard and and obviously not the no specific intent to defraud requirement either so that final and i just go back one second my calling very nicely asked you to talk about plainer and i wonder if you were arguing that this plane or any if you are aware that argument might be found in your brief the well the argument is in the alternative that was also playing error under the the choice and others ok so what we have here though is the final instruction that was given to the jury before they resumed their deliberations did not cover specific parts of the science or requirement and right that the jury since struction was just to ask they actually meet the jurors question they asked the court what were the five things that had to be found in then they asked what are the yes the five elements right and so good so there was nothing in the note that suggested that the jury was only considering scienter was  a no nothing in the u k that suggested that but then do you have any authority that says that it's plain error for a judge to fail to instruct a jury about when it's not required to find out because it seems to me in order for you to prevail on this point today you've got to show us some authority that that is plainer to fail to tell a jury what it's not required to on well there in the in the choice case this court found that the instructions given by the same district court were incomplete in at inaccurate and were failed to state the controlling legal principles and here resubmit if the same is true  particularly with respect to this last instruction that did not not only did not mention no specific contents of the fraud but also failed to mention reckless disregard or deliberate ignorance it error that we raised in our brief is the district courts exclusion of the pennsylvania auditor general investigation and we submit that you should have been admitted under federal rule of evidence for three because there probative value was not substantially outweighed by any prejudice to fuel or confusion of the issues and we recognize of course the district courts do have wide latitude on eviden element under false claims act which is science or and also a board directly from the credibility of several key witnesses here essentially what was able to happen here is during the trial many  field's key executives were allowed to repeatedly inject this idea of benevolent motive meaning that they were going to return all the profits from this nine point five percent saskin to their borrowers they were able to repeatedly inject that during the opening statement during the witness testimony and during the closing arguments that's from the c f o the c e o and another executive over twenty different time and motive or the absence of a benevolent motive why is that relevant in a case where the defense is the objective reasonableness of the interpretation of the regulations and that's an objective standard right and so why would it matter the motive usually when people exploit loopholes it is in fact to make money but if it's an objective lee reasonable reading that's not that's not that's all we need to know so why does the motive matter in this kind of case i think you are in the mode of matters here because and we would agree if fia had not raised this motive during the trial we would not be asking we would not be submitting that mode of evidence should be considered here but once that is injected into the trial once they're talking about their motive for carrying out this team where there is relevant rebuttal evidence that says actually no one did the report meant it didn't mention the half south it did not but in  and did it they did mention their interest rates perhaps up interest rates or anything that would tie the subject matter of the false claims act action to d c reports it not specifically mention this scheme or the false claims act but what it did so your sole theory is the collateral issue then of the fact that these guys were spending money on trips to hershey park and getting getting big salaries then they likely to recklessly forge ahead with the scheme yes that is correct and as i said had this not been injected in the trial by the executives it and i understand fears argument is that some of this came under questioning from dr brooks trial counsel but reading the record shows that often those answers were not responsive to the question asked so this was a tactic a strategy used by fia to put before the jury this idea that if he is not personally profiting from this then what motive would they have to commit fraud and therefore where there are government investigation reports that did review  operations during the time it was carrying out the scheme and did review how feo was using these profits from the overall company but which the scheme contributed millions of dollars  s and that they were not fulfilling their statutory duty to have all moneys go towards their borrowers and and while it's true that it's not a requirement for dr over prove motive in a false claims act cases that should not be turned against him to exclude relevant rebuttal evidence that goes to motive that's been raised by the defendant in a kids like th for that reason let me just go back to my it's my fundamental concern about this case even if i were to assume bad motives if i think that it is there is overwhelming evidence that whatever the mo e the defendant's interpretation of this regulatory regime was reasonable and it was widely shared at the agency doesn't make any difference respectfully it does care how come why isn't any error about this report just harmless  because there is the tyson case where down that motive can go to the question of whether the and even had it isn't will interpret it as i'm but i'm sort of asking you to assume hypothetically and i understand you don't agree but what if i think there is overwhelming evidence that this was an objective really reasonable interpretation of this complicated regulatory regime and that it was widely held by the agency in question if i think that at that point does it matter whether this report came and my time is up but assuming all of those facts yes i would agree with you are my time is up thank you very much department of education for certain government subsidies the jury's verdict was consistent with overwhelming unrebutted evidence at trial that during the relevant time period the department of education and numerous other government entities repeatedly deemed fia's conduct permissible thereby defeating any suggestion that fia knowingly or recklessly submitted false claims after hearing days of un contradicted testimony about the government's repeated assurances that fia's conduct was perfectly legal the jury needed only a few hours to correctly conclude that fia did not violate the false claims act over and now ask this court to overturn the jury's well supported verdict and order an entirely new trial on the basis of two alleged errors both of which this court reviews under a deferential standard overview first he contends the district court should have given the jury three of his proposed instructions but when the district court explicitly and unequivocally asked the parties if there were any objections to the instructions it the jury over explicitly and unequivocally responded that he had quote no objection to those instructions accordingly this court's review is under the demanding pla standard which over it does not come close to satisfying nor does he even really try but even if plain air review did not apply this court's review is for abuse of discretion and the district court did not abuse its substantial discretion and declined to give over e unnecessary confusing and incorrect instructions seconds over contends that the district court should have admitted a report by the state auditor general but the district court did not abuse its discretion in excluding that report which was irrelevant and prejudicial and cumulative in any event but regardless even if there were evidentiary or instructional error the jury's verdict should still stand the jury heard days of un contradicted evidence that during the relevant time period the government fully knew about the conduct at issue in this case repeatedly declared that conduct permissible and continue to pay every single one of the subsidies that fia claims on appeal over mischaracterizes that evidence but the jury correctly saw it for what it was evidence that overwhelmingly defeats false claims act liability in short the jury's verdict or feel should be a firm start with the jury instruction issue that was the first issue that my friend on the other side raised and as the questions reflected this this issue was not preserved the district court gave the parties multiple opportunities to object to the instruction but he did it in fact he previewed how he was going to give his instructions and then he actually said at the time that he was going to give them two opportunities to object so first he says i will give my own struction and he previewed what those instructions would be and then he said is there anything else i need to tell them over did not object that's a twelve eighty one of the joint appendix and then of course after the court gave those instructions to the jury the exact instructions he asked is there any objection to the instructions that i gave or the manner in which i gave them over to counsel responded no objection from relator that's thirteen thirty six so this wasn't even a situation where over its counsel failed to object this was an affirmative the nihil of an objection over it was plainly satisfied with the instructions that the jury received and only now is but lately arguing that they were improper because he lost it under that that affirmative denial of an objection plain error review applies and i think there was a question about where the plane error review argument was ever made and it really was well they did make it in but they did it on page fifty four fifteen and you are correct no substantial effect on the outcome below given the overwhelming evidence of the lack of say answer and also the fourth prong of planar review which is whether there was a miscarriage of justice or some sort of fundamental concern about the reputation of the courts believe they didn't have a copy of the statute or the regulations so i mean i can look at the statute and regulations and figure out whether i think this seems like an objectively reasonable construction but the jury couldn't have done that so is the theory that it was a nothe the evidence that was presented at the jury shouldn't look at the language and make a judgment about that it's sufficient that there is evidence at trial that the agency concurred in that interpretation you know what i'm saying what if right on its face and said well the one thing you can't do is this transferring feeling look you know this conduct was illegal at the time but the whole point of the trial and where everything was directed at was whether fia during the relevant time period had an objectively reasonable under how is a jury supposed to know if they're not looking at the statute and the regulations and the judge hasn't instructed them on the statute and the regulations how does the jury make an assessment as to whether this reading of the regulations is reasonable oh because i think that they can do that from the overwhelming evidence about what the government was saying at the time and even over a saying at the time i mean fia the government the lender's over himself everybody at the time was saying that this conduct this interpretation was permissible because of the  year colleague letter and the government repeated that two thousand to two thousand and three two thousand and four two thousand and five so i think a jury could easily look at that and even if it i mean you know i am could look at a very complicated statute about medicare reimbursements and not really kind of know what's going on but if somebody showed me a lot of evidence that said look throughout the relevant time period the government said that whatever someone was doing was perfectly legal and that the only way it would become illegal is by a change in the law you know that that's the kind of evidence that overwhelmingly shows that had an objective lee reasonable interpretation at the time and that it was not warned in a way no regulatory language that could defeat that is your view even if the regulation sa on its face plain as day this is one thing you can't do i can remember it's called transfer infill can't do that it wouldn't really make any difference in your view so long as the agency is allowing well i think you know it would be a harder question for the agency and  would certainly question the agency about you know why are you telling us one thing when this regulation says the complete opposite you know but i think even at that point if the only thing that a regulated party were looking at was you know what is the agency telling me the people who enforce the laws and who are going to penalize me if i'm not following the laws that's what we're going to go with and you know if an agency and it wasn't just the agency here it was congress it was the the g a o i mean everybody including again over himself was perfectly legal and the only way to stop it from happening is for there to be a change in the law and that's exactly what happens when you get to two thousand and six congress passes a law that shuts it off and all of the conduct stops so this is exactly falls squarely into your question about you know objective lee reasonable interpretation you know not being relevance to the motive and this starts to get into the attorney general  the auditor general report a little bit but if you're exactly right judge harris the supreme court in safeco and the d c circuit in the purcell decision you know said squarely that this is the d c circuit and purcell this is judge rogers brown and now justice kavanagh subjective intent is irrelevant when a defendant seeks to defeat a finding of knowledge based on his reasonable interpretation of the law that's at page two ninety of purcell and that's a post safeco case and of course  safeco at footnote twenty the supreme court said exactly the same thing and so that's exactly what we have here we have overwhelming evidence of an objective reasonable interpretation taken by fia taken by the back to the jury instruction issue again i want to just wrap up the fourth prong of the plane error standard which again is that this court has to think that a real miscarriage of justice her and i think the best evidence that no miscarriage of justice occurred is that dr overcome self called the outcome of this trial a victory because he you know he lost but he got a lot of great information out there about what student lenders were doing etc and you know whatever else you want to think about playing your review in a miscarriage of justice i don't think it qualifies i mean that's a fine debating point but speaking for myself that does that movie if you had sat as if they'd satisfy the other three elements of playing their review i don't think we  would say well there's no miscarriage of justice here because the client the client said x as clients often do that we mean we're is not quite on the point they don't quite know where it's going i understood judge months and i think the other but i think the other three elements of plane of you again over it doesn't really make much of an argument that that he does satisfied even though it's his burden i mean we we discuss in our in our response brief you know why there is not clear obvious error there are no decisions that are supporting the precise points or saying that it's obvious that something would not have been included you know for example he cites the choice case but that's an example where the district court left out an element that was required to prove liability and when you do that you know you've got a real due process violation on your hands because you've got a defendant or you know could be a criminal defendant who's been convicted or found liable without the elements for liability being given to the jury but that's not the situation we have here for example with instruction of well you know here are the elements you need to find false claims act liability and here's something else you don't need to find i mean number one you know that's a necessary when you've articulated the elements that a jury needs to find for a liability that necessarily subsumes what they don't need to find but also it's very confusing to a jury to have these elements ok this is what we need to find and then there is additional instruction but you don't need to find this you know not only i think is that confusing you know on its face to a lay jury because that the reason they put that in the statute your honor was in one thousand and six the previous version of the statute only said that that liability required knowingly so knowing action and there had been courts that belt and suspenders when they added all the three types of science or and then they added isabelle and suspender that you don't need to find specific intent in order to find science or but i think that's a very different thing than saying that a jury has to be instructed on something it need not find i mean the word is we're not playing there and were abuse of discretion with your position you think there's more wiggle room oh i still think it would not be honest an abuse of because again i think that it is and it is uncompressed by the existing elements and i think it would be confusing to a jury to be told what you need not find particularly when that thing that you need not find his specific intent specific intent never came up at trial it was never of the subject of anything precisely because it's not part of also claims act so the fact that it would be unnecessary in confusing you know i think is well within a district court's discretion include that sort of that sort of instruction that i think the fact that dr albert really doesn't have any response to the cases that we cite about how you don't include an unnecessary instruction for example we cite to seven circuit cases talking about the need to avoid unnecessary instructions precisely because they are confusing for a jury and he has no response to them for good reason and we cite a case from this court that says that when there is no dispute over something you don't include it in the jury well there was no dispute over specific intent here because it's not part of a false claims act claim and he tries to say well there was a dispute over science or but again science or does not include specific intent and the dispute over science or again was point with my remaining time i just want to address some of the points that dr over before you move on to i just i just want to make sure i get an answer to one little question i understand your argument on the auditor general's report or why isn't independently relevant but why isn't it relevant to impeach the credibility of the witnesses who are testifying that everything they do is motivated by a desire to benefit students and consistent with their mission and then you have this report suggesting well that's not true sure a couple responses your honor first of  all there was plenty of evidence already in the record about compensation salaries and doctor over could have introduced even more he says that he was precluded from doing this by the court but those were just asked and answered objected so he could have gotten a lot of this information in already and in fact he never really identifies what in the report he would have used to impeach the credibility of these witnesses precisely because a lot of that information was already in the record but i think it's important to point out that a lot of the testimony that he says that he would have undermined with this report he's mischaracterizing that testimony has nothing to do with the nine and a half special allowance payments that are at oh i know that i'm sorry i thought the argument i m framing the argument was look you've got these guys up there and they keep saying everything we do in our jobs everything we do is motivated by our desire to benefit students are ours and everything we do is consistent with that mission and then you have a report suggesting that is not true the salaries you pay yourself for instance it's not consistent with your mission it doesn't benefit borrowers so the idea would be even though it has nothing to do with the particular facts of this case it suggests that their testimony was not truthful but two responses your honor first i  pushed back on the premise which is that there was all this testimony about how they did everything for the kids that's not actually what the testimony is the testimony if you go back and look at this it's about a different concept there they are talking about what's called excess interest under tax exempt bonds which could be used for borrower benefits excess interest and bar of minutes those are legal terms under i r s regulations and what they're talking about there is how what they were doing was they had to use the excess interest from people because they were trying to you know give more money to students now all they're doing is talking about this mechanical application of excess interest to borrower benefits which is required by i r s regulations and i think i'll just give you a couple  examples where there's this is mischaracterized in the brief so that at page thirteen of dr over his opening brief he says the profits from the nine and a half percent special allowance pai quote had to be used for borrower benefits period and he puts quote had to be used for power benefits period because he's quoting one of the executives but he admits the next line which is the executive being asked and that would be the excess in side those tax exempt bonds answer yes correct that's what they were talking about you know another example he's you know again he says that page eleven of his brief figs sought nine and a half percent payments so that they could provide benefits to their student loan borrowers there's no testimony that supports that and there's testimony that refutes that when a few executives were asked why they age in this strategy they explained that it was to increase excess interest so for example that ten eighty six of the joint appendix the executive asked was the goal of these loan transfers to grow fee is nine and a half percent loans answer no so i say all this just to say that there is a there is a distinction between this excess relevance is telling but i think also at the end of the day even if all of this had something to do with undermining the credibility of the phoenix actors and by showing that actually they had a questionable motive instead of a surely again it doesn't matter if there is an objectively reasonable interpretation of the law that's what safeco says that's what purcell says that as long as there is an objectively reasonable interpretation of the law it does not go towards motive which is not even an element of the false claims act at all and if there are no further questions the jury's verdict should be affirmed thank you but i just want to be clear on this the testimony included things like question were you embarrassed by the fact that you would use its earnings for borrow borrow or benefits and certain bears by the fact question answer i was proud of the fact inference that they would have no motive to undertake this scheme for fraudulent purpose since they weren't going to benefit from it now the other thing i would like to address is this idea that he has raised that everybody was in agreement that this nine point five percent sap scheme was permissible at every time if you were just sort of filing for payments that it should receive payment under the scheme and that's simply not the case  there was an audit conduct conducted by the department of education in two thousand and two that involved in iowa a student loan company but importantly it involved the same scheme that's at issue here and in that audit it was read the audit findings had not yet been revised it was well grew year long period in which the department of education said the scheme should not move forward here did not consult with their lawyers about this to see if what they're doing is permissible she had to not go to the department of education and say hey by the way our scheme is the same thing is it ok that we continue to seek payment on this what they did alternately when they were asked by the department of education years later about this their own executives admitted they gave only half an answer here that they didn't they certainly didn't hand over their may two thousand and two memo that was the the ark of architect report said said that it was being subject to review in took a year for them to revise the report so it wasn't quite as black and white it seems to me as you're suggesting that's correct it did say was under review but for fear to say that there has there had been no indication that this scheme was impermissible is simply incorrect given that there was a draft but a draft audit finding that this that  the refusal to admit the government investigation reports under federal rule of evidence for a three thank you very much thank you we will come down to one of the lawyers and then go directly to the next