this conviction is based on unreasonable inferences speculations and assumptions examples of this start with the testimony of f b i special agent when asked during his examination at trial the basis for his concluding that mr b about the thought been who had committed the medicare fraud his answer was that i understanding is that the person who signed the agreement for the company is ultimately responsible for the claim submitted to medicare and in this instance miss appeared to be the individual who signed the documents this type of insurance was also argued by the government in this brief when it indicates even if possible did not personally this is a quote even if our who did not personally sign all the billing sheets as the owner of i bonds she was responsible for every claim submitted through the company these types of inferences we believe are a reasonable given the substantial background of this case and the only seated facts isn't the question i mean let's assume you're right about that the question is whether overall there was sufficient specific substantial signing the original incorporation papers only as part of it being around when when people were given mysteria that they didn't appear to need being around when they were given and it's not a lot but there is a fair amount your honor we don't believe that the information or the evidence the testimony supported the sic the standard beyond a reasonable doubt to show that she both knowingly and intentionally committed medicare fraud and that is because the testimony of now was clear that she did not purchase any of the fraudulent prescriptions that  one of the persons he had employed as a marketer that we know now was going to come to the office he was unavailable to pick up in on follow up and deliver it to her there's absolutely no evidence that  checks that she actually the testimony by the accountant was that he signed to the original in court the formy documents forming i bond and that initially although interviewed by the f b i she said that she was never paid by miss og during her testimony however she said that there was one instance when she went to the office and you saw who gave her a con a believed well yes obviously if the jury believed her testimony that would suffice however when we look at all of the other other facts which are unreasonable to infer guilt for example the government indicates the dog they got a manual was found at hyper time well it was not unusual and certainly is not reasonably indicative of knowingly and intentionally violating the health care fraud got they was a third party certified by medicare to perform billing services and the manual it was not there was no evidence indicating whether or not miss agutter had ever been instructed on the contents of the manual what's the contents of the manual actually were and this would be an unreasonable inf that's the mere presence of this manual indicates criminal intent knowingly done also we have the government's argument that similar to inference according to taste well must be linked to other reasonable inferences when we have such and reasonable inferences as the foundation of all of the other inferences it cannot be said that there that this virginia also indicates that this in health care well jackson also indicates that there is this near certainty however in health care cases the near certainty or the standard beyond a reasonable doubt requires both knowing and intentional conduct in order to avoid just this type of conviction and someone who is being used as a pawn and  her father in fact should be the ones to bear all of the responsibility the criminal responsibility and not her the fact that she was present she was a full time student she was twenty years old she was living at home that's not the question that for us right to question before us is whether substantial evidence that's correct but we do think that those are elements which go to whether or not there was substantial evidence to meet the burden of proof and as we argued for example the rooting through the i will case cited by the government is much different from the factual circumstances in this case underlying facts however in reading the government's brief to show what evidence was presented in the light most favorable to the government we see that iraq was involved in personally creating for durable medical equipment companies and that once the investigation became she and her husband who was also indicted specifically hired several people to so called clean the documents that showed their violation of medicare rules and the fraudulent carries carry ons these companies this is so different from the facts that we have with misess to such an extent that we don't think that a reasonable juror could find her guilty  based on the standard of proof even when looking at the the facts in the light most favorable to the government we have the testimony that all of the inferences presented by the government shows nothing more than a full time college student obeying her father showing up certain files are at this location she has nothing to do with the hiring the management phone calls even the even the telephones that belonged to one of the marketers was in the it was an account owned by mister the evidence did not show that there were any phone calls made between any of the marketers to  and when we look at the totality of this evidence it falls short of the knowing and intentional conduct required when meath i also have argued the ineffective assistance of counsel in the case we know that on the eve of the beginning of the trial her attorney indicated to the court that he was not prepared to go to trial at that time and we see from the record that he failed to make a pretrial motion regarding the interview of the agents of miss miss our those statements given by her during that interview would have been an appropriate motion of miranda motion pretrial they did not do that what they did do was at the close of the government's case they brought some random motion as part of the rule twenty nine two for motion of acquittal the record is replete with her trial attorneys not understanding how to introduce certain evidence how but she is ordinarily we don't do this on direct appeal right ordinarily unless the record has been significantly established and the record in this particular case meets the criteria of her he ruled against her motion at the end of the trial yes however it but wouldn't have made that would have made it at the right time well had he made at the right time there possibly could have been more more testimony more witnesses but we don't know that because you're right we have that which is why you can't educate it now but we do know that it was brought at the wrong time and there was no basis for him not to have brought it timely as a pretrial motion coupled with the other aspects of the representation her attorneys provided her we would al to give me some pause and i does it really make a difference she got to come up with five million dollars rather than ten million or two million rather than one million i mean that's a memo from a practical point of view as far as her ability to pay ten million dollars when he parted to five dollars or one hundred thousand or five hundred thousand or any of you know but in the future it may have an impact as far as any credit that she may attempt to get be it if it's a larger amount it may have a larger impact than a smaller amount i do see that i have a few seconds left i would like to reserve that for the rebuttal thank you good morning your honour's to joanna bowman for the united states means please the court viewing the evidence in the light most favorable to the prosecution the evidence clearly established that mr knowingly and willfully conspired to commit health care and com she knew that paying kickbacks for prescriptions and patients was a legal however he did anyways she knew that what i was writing for prescriptions but she did it anyway meaning she handed a piece of an envelope to one doctor fenton testified that he gave her prescriptions and then in exchange she gave him cash well what he testified to was said see the taller daughter of the larger daughter or something  that yes both federal agents confirmed that mr agnew was the taller daughter as well as patient marketers while o'brien she also confirmed she was the taller daughter and the relationship between dr would answer and tell her to bring the patients to particular doctors for examinations there was approximately two hundred thousand dollars withdrawn from the bonds bank account on which in this i was the sole signatory the federal agents testified that such large dr fullerton testified that he examined approximately three hundred of the three hundred eighty of dr i had allergies patient files and none of those patients qualified for power wheelchairs dr vincent testified that almost purchased i understand that but as for the substance of them she is not responsible for well if she knew that the prescriptions were not medically necessary then he should not have submitted i'm right with that issue no one a medically necessary just not a doctor she may know that they were paid for but she still doesn't know they're not medically necessary well the fact that they were paid for shows that they were not medically voluntary andas i retold the federal have any further questions well i think the one thing that this can be simplest was the restaurateurs she was the bulk of that restitution had to do with the the prior entity that her father ran and not the one that she was me just tell me how important was it she was the the well i mean that seems to me a to be a lot less clearly proven in that all of the evidence you are talking about has to do with ebon right everything you just recited about th there was no evidence that was put on that that would have made her liable with house i've gone without while she did work i know she worked there but you don't have any proof with regard what's the name of the other company involved with each other they shared workers they shared positions  in her application simply not the case stated that she applied for the position of sales and marketing and the government proved submitted applications as well as her first paycheck from dawn in two thousand and six so connected to him but i don't understand where there was any evidence of her knowing participation in the conspiracy at that point well the government proffered that she worked there and the court was bound to resolve any any question by a preponderance of the evidence on that issue and that's it the evidence when she worked there she worked there and she received a paycheck she had what is she received she received her first paycheck from god the summer fifteenth two thousand and six and that's what the book the basis  restoration order was i understood the government's argument because there's no evidence that she knowingly and participated during that period to be essentially it doesn't matter whether she knowingly participated during that period is that your  argument because the consider the conspiracy encompassed both companies and both time perry and whether she was part of it earlier or doesn't matter with your  conspiracy does come to it or didn't come as both companies and certainly even was not in the existence until two thank you very two thousand and eight or even actually january i'm sorry i'm july of two thousand and seven as i when i believe the company was incorporated and it did from what i did see a basis for concluding that she was or what did she have to have been poured the conspiracy during that period i know in the eye and knowing participant at that point yes because i read your brief to try and get around this by saying otherwise didn't even matter at that point whether she was unknowing participant at that point just well she was annoyed participant later you're not arguing that so if you're not arguing that i think you're in really weak i mean i think that argues probably wrong but i think it seems to me and really weak rather because she's there's just no evidence that she was help in the eight health care pat counts too thick as she was per if you divide the conspiracy broadly she was a knowing participant for part of the time period but for restitution purposes i would think she'd have to be a knowing participant for the period that she's being charged with restitution yes thank you thank you and there's no further questions the government briefs no questions there thank you thank you in responding to the government's arguments just no made when charles testified he said that two patients were he allowed  patients to eyeball on early in the morning before it opened at eleven o'clock well and i just and what he said the question is what the evidence of the whole show and i gather said otherwise he seemed to say there were more instances and someone he didn't say that he said that dr van parton's testimony may have been that he went there but it was not that miss ugh knew anything cheated and she was present he said that she was at i bind not present where he was gone it's more than one room as soon as the agents testified when they went to to question her they went into an office and the door was closed ivonne is not just one room so there was no evidence said miss i miss ugly knew what was going on and  testimony it happened twice before it before she arrived the other item is that the government makes no explanation as to what qualified the patient as medically necessary even if in its arguments just now it does not indicate why and if we look at the government's supplemental excerpts of record which we cited in our reply brief the i got the manual encourages marketing durable medical equipment the supplies and there's actually no evidence that mrs actually knew that prescriptions were being she knew that a doctor was working and seeing patients and oftentimes it might have been the same doctor that does not prove that she knew that these were fraudulent prescriptions and we would submit it thank you very much