judicial supervision of wiretapping which lies at the heart of the statutory scheme and title three of the factual underpinnings of the claims are set forth in mind numbing detail i was reminded when i looked back at the brief this morning and my time here very allows me to say my name which let's talk about the details but let me if i can skip through to some of the high points of each of the arguments as i understand them first as to the necessity  issue this was and i can't emphasize this too much this was a as the affidavit in support of the first application for word tapi authority demonstrated this had been extremely successful conventional investigation they had the agents in the persian of both control sources control i'm sorry could you show sources and sworn agents had managed to according to the affidavit infiltrate the very core of this enormous and this is enormous of undertaking that they were that the they propose to investigate where to happy there was no reason to believe that furthered conventional surveillance ok i'm sorry conventional investigative takes techniques would not have only allowed the ages to infiltrate farther and more broadly and indeed as it turned out the day did indicate that several of those common techniques had  reached a natural landing one of the gentleman was suspected and was no longer one of the confidential informants with suspected supposedly and no one or a part no longer called or participated and trashed drawls had been caught and what what common technique do you think with still available that that had not had not adequately run its course there was a c s two there was it in for an informant who was still in contact with the subjects of the investigation and indeed as the further affidavit show the subsequent affidavit show continued to work with the subjects of the investigation to the one or another of the pit people with whom the doctor had been in it contact and the supposed patients were also agents had been suspected because either they didn't have an office or they were nonwhite where they were a failings that the infiltration had had had had suffered at that point as i said the affidavit at least was simply of a factor of the agents not adapting to the change in circumstances not because of anything inherent about the that it's the circumstances of the investigation or of the the investigative techniques available to the agents that it nor importantly perhaps there was identify all of the participants or all of the activities and if only were required for showing of necessity were the showing that there are people whom we haven't identified yet then the necessity requirement would be effectively read out of existence be the first on that one question yes or no against your time you'll still get your minute for rebuttal this is a case of what i call a cascading wiretaps you get a wiretap you get more information that more information helps you get more information which helps you get the next wired t t is that of any relevance here in the sense that are all of your arguments pretty much go against each of the wiretaps is there any reason to say one of them is worse than another or that if you're fundamentally right about wire the tapping was flawed from the inception and the defects as to the first order which is the predicate upon which the subsequent orders were entered were was would in fact everything that followed at the same time i can't necessarily draw the line at at at extension three or extension four extension five but i just know that extension seven to last the we had one hundred ninety nine days of word tapping in this case which is an extraordinary extraordinary but i would like to point out that every single one of the attorney client calls were captured and recorded there was no contemporaneous minimisation and all of these calls were accessible with to anyone with the red wolf log and now we believe that that violates both the spirit and letter of title three and equally important we believe that it violates the terms of the order authorizing the wiretap which the with respect to the product that you just said about anybody with access to the red wolf system could get the do you have any evidence or even any belief that anyone other than the quote team did access them your honor we'll never know that the whole investigation was shrouded in secrecy there was no evidence that anyone actually know no pro or con but the very fact there were that it was possible but it would they were on the system i thought that they had some types of control in terms of access to passwords or something of that sort of my wrong i think that's right i think that case agents had the i wasn't just their word that they didn't do it that there's evidence that they would have had you know do something in terms of either getting passwords or something  well i'm not sure that that's quite right i think that anyone had to who all the case agents could a large into the red wolf system and it whether they were trying to get attorney client calls get access to those or get access to any other calls and the government can obviously correct me if i'm wrong about real we'll talk about the system that when they downloaded the disks and did various things that the attorney client calls did not go on the same disks as the others that are that much that much is right but my understanding at least is that the case agents had access to the road and it will it will ask them yet that in any event look as difficult as that decision is to reverse on this case which is so big and so sprawling and required so much resources on the part of government to prosecute we take that it's an easy decision with respect to the sentencing issues that were raised in our brief we know the rule thirty two requires the district courts rule on any disputed matter at sentencing and we know that under united states versus white this court reads rule thirty two literally that is the district court has to in the words of white actually find facts now if this court examines the ruling of the district court it did exactly what white prohibits and that is it summarily adopted the government's position with respect to a disputed hotly disputed issue of fact during the course of sentencing and we believe that weight requires reversal here the government s my view is that it doesn't impact the fundamental holding of of the white decision and that is that the court has to find facts and the court didn't do that here and what asking this court to set mr patel free at least on this point we're just asking the court to reverse and remand for a just to turn out to what of what facts it should have found the fundamental fact here was what was the amount of loss the pre sentence report simply said plus twenty on the on the points both sides argued extensively before the court fundamentally the government in its memorandum and orally one hundred percent of the a twenty five percent of everything else your side attacked various of it he said i've heard both sides perhaps he should have said and i find that it's one hundred percent of the v a and twenty five percent of the d d a but how would that have added anything if he had put it in those words and could you have attacked those words we absolutely could have it's what more facts would be what he had to say then he could have said it and if you had said we i find as a matter of fact that the one hundred percent of the video tried transactions were fraudulent and we would be up here arguing that find it's clear and we think that it was clear we know from the that's as in the united states versus jones which is cited in a reply brief speculation from government witnesses regarding whether or not services were actually provided is insufficient is anybody else going to address this point or should i press you on it you can press me o only it for my client ok but same things i mean in terms of the total amount i guess i'm just i just want to get whether i have the the big numbers right the category is seven million to twenty million ok the government comes in and in effect gets eighteen plus million so if that twenty five percent were fifteen or ten you'd still be within that category w do have to get jack to interrupt here to tell you about i think the numbers will isn't that the the the video is two point nine million which means sixteen million has got to be from the that's correct and look it's not our snippet that says oh you're probably your pharmacy you were once in the pharmacy you should turn a twenty five percent profit and then they in sleight of hand and twisted logic they say well that means that mr patel intended twenty five percent of these transactions to be fraudulent and there's simply no basis in law or logic for that conclusion and for that reason we've  determine and to never redo that evidence mr taylor may have engaged in fraudulent practices or that he dispensed controlled substances in a manner not always consistent with the best pharmacy practices it's not sufficient to establish that he knowingly and willfully acted to participate in bubble high patel's conspiracies or register in the indictment mr taylor was charged or no substantive count of the indictment during the relevant time periods he worked as a pharmacist  only one pharmacy the grand river pharmacy where he was an employee and received only a paycheck the heart of the government's evidence which was expensive title three wiretap interceptions there were over ten thousand interceptions from which the government chose those who played a trial the government used most evidence to attempt to share mr patel's control over the operations of the pharmacy is no evidence that the very few of these that were offered as evidence at trial involving mr ta evidence of his participation in the to allege conspiracies evidence of bear association is not enough the government's arguments in the response proved rely on six to tell you was an important witness for the government during the trial who testified about his employment as a pharmacy tech at the grand river pharmacy he testified about what he claimed to have seen at the grand river pharmacy but he testified about  want substantial evidence in the trial concerning the discrepancies between what he described the actual documents the prescriptions and the records of the pharmacy they were counsel this is this is judge bags are times about expired i heard three motion we would like to spend our time this morning speaking on behalf of mr bakker before the score on the pretty much the same cause as mr gurr was indicated which would be the insufficiency of the allotted i would like to start and to the first point would be the b d a prescriptions that were filled by my client he was working at the green glendale pharmacy for approximately six seven months his first two months from october september october of two thousand and ten feel two hundred twenty five prescriptions this actual filling prescriptions was done before the government's main court's attention is that in november of two thousand and ten mr bakker was videotaped again audiotape videotape with a meeting with the primary defendant at that particular time law enforcement did not even know who my client was at his had no idea what his name was and no idea who he was at that time that he was actually stopped leaving the restaurant there was a meeting at a restaurant he was stop and at that time the police actually took his license to see who he was and that as late as again november third two thousand and ten that is approximately a month after the filling of the b d a prescriptions the third point i like why is that why is that helpful to us safety of somebody is is in fact involved in a conspiracy the fact that you don't know is name at a given point how does that help you or judge it helps us because the government's point and the point where i believe he was actually convicted was that he was part of the conspiracy from the beginning which would have been prior to september when he was filling the vdare scripts if the government didn't know who he was at that particular time or had no cause between him and the anybody in the conspiracy why would he be a main player i believe the conspiracy conviction came from the v a scripts that's why when we moved to our third point there was a the glendale pharmacy where my client is working you see the vellum you can see the c s and if you do a transcript if you read the transcript of the conversation he was asking my client questions several questions of which my client answer no one of those questions was part of conspiracy was to fill prescriptions with out patients there and in that video the competition foreman asked mr bakker he had one hundred prescriptions in the car and all of this had been videotaped the whole point is to get mr packard act out he has missed that would you feel those scripts and respect that no it can't be done several points in time to miss attacker refused to follow instructions that would lead to believe that he wasn't part is part and parcel of this conspiracy is the government had him to believe had us to believe it just saying that some of the times he wasn't doing bad things even if he was doing bad things other times i've been that has been asked before and the bottom line was the cia if you look at that particular script which is i believe was part of the transcript that we submitted you can see him also talking to the confidential to the officer saying he doesn't know a lot of these things he's trying to get him to do something he's not doing the officers are actually wonder why isn't he filling scripts was didn't go as planned and i think part of that is because mr vaca wasn't as involved and was not as plugged in as we would have because to convict him of the conspiracy he doesn't have to be a major player which it is good nine earlier he doesn't have to be as connected to something else he just has to be connected that is correct but  several instances and not only that as this is in essence afterwards january of two thousand and eleven a marketer that was supposedly part and parcel of the the program that there was no whole transcript as is has inferences are instances where you have mr thacker saying on record take no no this can't be done no no we won't do this no no we can't ok we get the point thank you sir you'll have your minute for please the court bruce rowe go for kemal or try sometimes the jury gets it wrong and this is such a case there is not sufficient evidence in this case to prove that chaya had knowledge of the scheme and knowledge of the scheme is this in a quandary for convicting someone of conspiracy the case is built on inferences upon inferences indeed the trial court even said to the trial lawyer you may be very right the inferences are not strong but he sent the case to the jury and he said this is a very close case so you start really with the recognition from the trial court who heard the seven weeks of testimony that this was not a strong case against kemal or child and then you take a look at the evidence in the case the government very candidly in its brief page forty conceded that no coconspirator testif had knowledge of the scheme the lead case agent mr parkinson page sixty seven forty one of the record pressed about whether or not there was any direct evidence or indirect evidence and interceptions involve phone calls between mr patel and your client and arguably implicate your client and this person there is one judge cole that's the key that the that the government says is the best evidence in the case and it jurong soni who had some medicines in his apartment had it had not been broken into actually the government to stage what looked like a robbery that and then mr patel translated from garage which is the language that they were speaking but in any event the punctuation is interesting but it's it is a question it's not a statement she's not saying this is illegal you can't do anything about it didn't she go on and fac he knew about it it was from his store how how would she know about his knowledge if she were not away or the conspiracy well he knew she knew that he knew that it was it was drug medicine from his store but that's all that saying does anything about the conspiracy that this is bill but not dispense medicine and part of the conspiracy i mean when you read the whole conversation there's really nothing there and at the end i think as i recall the conversation they just simply say goodnight but if that nip it is all that they have and that's their best evidence then that is not enough but what about her role as i guess  officer or straw person in these different corporations and different accounts the testimony is clear that mr patel is the one that opened the accounts in fact i have it page six and seven of my reply brief gone through every one of these issues one of the things that government said and this is your question judge biogs achaia acted as nominee owner for patel pharmacy goodyear ruthy testified that patel signed the corporate documents she was never a account paid six and seven i have taken each one of the government's pieces of evidence and did the per contra to them to show that they do not show any knowledge of the conspiracy and without knowledge of the conspiracy useful in moving or concealing or facilitating the money and the argument is that she simply did this for her friend or whatever that without knowledge of where the money was coming from she didn't even really do it because patella controlled it all in fact the testimony was patel controlled the whole thing has been controlling and being involved obviously he controlled it because he's the source of the money but there's no knowledge  there's no testimony no evidence that she had knowledge that the whole purpose of any of these things was to be engaged in a medicare fraud scheme i mean that's really the bottom line of all this so that from her point of view your position is that all of this money in accounts was all coming from legitimate business it was she had no indication that it was coming from illegitimate business and there's no evidence that she knew it was coming from some business that was part of the medicare scheme or fraud it and we talk about all this money she wasn't signing the checks there was one checks hundred sixty thousand dollars that went through her account but garage she testified that patel put it in the account and took it back out for someone else and then arch i had no knowledge of the details i mean this is this is their star witness no knowledge of the details page seventy nine fifty eight seventy nine fifty nine the transcript if you can't it's throughout the colleagues of other questions you'll have your minute for rebuttal ok we'll hear from the you know please the court when a prat appearing on behalf of the united states in discussing the wiretap issue i i hate to use that word necessity but it's such a convenient shorthand term that everyone uses  that it actually is course a work of course the requirement of a full and complete statement as to whether other investigative procedures have been tried and failed or reasonably appear on likely to succeed  s concede in their brief to the full and complete statements in this case were not simply boilerplate that would be applicable to every case but in fact there were specific facts that related to this particular case also that the government did not simply in the first application put forth reasons we needed the wiretap reasons the other techniques would not be fully effective and then stand pat on that in each of the seven applications there were changes there were additions to the point where we came to the seventh and final application it was thirty page discussion of a full and complete disclosure of the other investigative procedures  in so is the court referenced there were things like the unsuccessful trash pulls the government was caught in then guess what on trash day there's no more trash any more from that particular target and so it really feeds into a question of whether it was appropriate to have the goal of dismantling the full extent of this enterprise and that was the goal the goal wasn't to have your opposing him fill suggests that it may at the wire were perhaps not necessary precautions common techniques had not reached their fruition that you could have for example when rice was the argument about the clients that were coming in and then the thing the government should have done is provided we provided clients of other races instead of doing that the argument is that you improperly turned to a wiretap how do you respond well respond to that but brought some detectives it's not clear to the government that the that the great thing to do is introduce some other folks even if they're a different race there may be some suspicion here that the fellow who brought us to tack to us today  may bring some people of a different race but there may be still be some lack of trust there the other broader aspect is that the government in this is a dispute we have the defense the overall goal here was did learn the full extent of the alleged enterprise it wasn't to pick off bob a by patel or pick off the one particular pharmacist that they did the undercover operation the defendant about why patel control twenty six pharmacies  the initial indictment of twenty six defendants resulted in the indictment of twelve pharmacists and four doctors there's really no siege and there was an additional thirteen defendants later and which you alluded i believe six more doctors and a number of pharmacists so there's really no fundamentally there's not a suggestion that you can go undercover one by one and take off the entire enterprise in that sense it's no dear no different than issue dition al large scale narcotics organization the fact that you may may be able to make a low level by from one particular individual or one particular location doesn't mean that in order to have  full extent of the enterprise you don't need to use a wiretap then defense counsel indicates that some there's something wrong about trying to learn the full extent of the alleged enterprise and the government just disagrees with that his objection was that when you're on the seventh run you're still saying the same thing we're just beginning to tap into the full extent of this massive conspiracy have you respond to that that you're on number seven after quite some time of wiretapping and the allegations to the court are still well we're just beginning i don't think the i don't think the fact of the thirty pages of the explanation of what we tried was really that we were just beginning i think the court and of course this court has to give deference to the courts determination that we still have progress to be made there were some cause even as late in is there you know we didn't press the other side it picks up sort of inferentially about each separate wiretap are there things let's say from the sixth or seventh wiretap that are crucial in the in these convictions i mean i was trying to think about what would we do if we were to say ok they should have suppressed the seventh wiretap or the sixth wiretap you know where would we end up to end up with some kind of remain for a determination of what was in what was out i think generally speaking we're not have a whole transcript would we look at it for harmless error or gravel believe your honor but i do think that  fact is that the government clearly laid out as to each of the each of the seven applications how things have developed and changed the court at any time could have said you know i'm getting your  explanation of what we learned in the previous thirty days and so if a court had said you know you seem to know everything about everybody the court could have said no the court didn't we were obviously learning new things in the later applications in effect talked about what had been found from the earlier ones i suppose that could cut both ways it would both give you additional probable cause for what you needed but would also have shown that the previous techniques had already worked although the wiretap was clearly working as terms of telling us the entire scope of the conspiracy the ninth circuit case that the fan relies upon is that the government can't manufacture a necessity and that's the quote from the case and this case does not provide to provide any basis for this court to say that the government manufactured necessity the fact is when you're dealing with twenty two plus pharmacies and all of these different defendants it's going to take a while to learn to learn the role somewhere in the identities and learn how everyone acts i want to talk about the nine aged interpreters and the lopez case from the first circuit i am particularly hopeful that this court would not adopt and perhaps even reject that dictum in the local lopez case because the logan lopez court  didn't reverse for not immediately informing the court that the government was going to use interpreters the fact is the wiretap statute has a very explicit  and complete statement as to whether other investigative procedures have been tried which we've already discussed a full and complete statement of fast concerning previous applications they've got this whole list in the statute of things that the government has to include in these applications and mortars it does not include oh and by the way we expect to have some foreign language call in we're going to in fact use an interpreter and for the first circuit to say that this is a mandatory requirement  in all instances i think it's pretty unfortunate i think that the the fact is in this case the government reference the use of the interpreters in the very first ten day report there was clearly no effort to hide that from the court but to say as an absolute requirement that in every application we think you're going to get some foreign language calls you know it's a mandatory requirement that's simply not in statute with the important thing that the court be informed that concern because every every person who monitors and there was testimony about this by agent purpose and at the hearing of june fourteenth two thousand and twelve it's our number track record number eight ninety five he testified that everyone monitored had to go through a minimisation process they had to read the affidavit they had to talk to an assistant united states attorney who explained the minimisation process to them and that's the same thing that's done whether you have a foreign language monitor or whether you have a da general whether you have a contract employee eligible the statute says that you can use contractors right yes and you say well a translator is a contractor which they are do you routinely or not inform the court that contractors at all would be use that is this fight about translators or is it of fight about truth telling them that you're going to use contractors at all w think legally under the statute it's the same question the statute doesn't require us to tell the court whether we're going to exercise the right deaves contractors which clearly it's anticipated in the legislative history says sometimes agents have to go out and do agent work in that if you're just going to have someone who's going to sit with headphones on and listen to calls you can use contractors even if they're in english and it's not clear to me given that statute says the government can use contractors not clear to me why there should be any particular notice to the court given that the real question is are they appropriately minimized or are they appropriately instructed in the testimony in this record really which is the case agent and there's no contrary evidence was that these contractors were informed told to minimize they went through the process and of course they're really leads into the question is really late into the more important question or one question what's the the claim that there was t currys the court if you have a concern to read the testimony of agent parkas and he explained we had a separate tape team while it's true it went in the same mechanical system i it's i think from his testimony you get the sense that that's that's an artifact of the system that they can't suddenly say we're going to we're going to separate calls electronically he made clear that there were separate monitors they were while they went into the same master system they went on a separate disk they were reviewed by a teen attorney to see if they fell within the crime fraud percent exception for attorney client privileges and none of those calls i i haven't heard a single one of those calls a day after the tate team that if agent was who had access to the system was willing to violate whatever rules there were could he have just decided to go in and listen to those calls or were there some barriers in place i know the part about the separate disks when they were taken off on the disk or are they still on the system there answer my question in fact if rogue agent x had wanted to listen to it could he have listened to that call just as well as he could listen to any other call we're talking martek hilarious but i believe that rogue agent x could have it's not clear to me that the system could have been set up there any differently but it seems to me when they're claiming error on appeal it seems to me it's their burden when they have the case asian or whoever else they want to call on the witness stand to establish that it actually happened to say that hypothetically their rights might have been violated really i don't think establishes a basis for reversal in this court the testimony is that the actual calls were segregated that the case agents after the tate team assume place did not access those i suppose you know in their in their best candidate case scenario they could say all of those folks are lying they were sneaking in there at midnight and accessing the home but the fact is we have to deal with the record we have and on the record we have there was a teen team put in place there w separate monitors there were separate agents there was a separate assistant united states attorney and none of the factual development in the record that there was any kind of violations of the defendant's attorney attorney client privilege and that's ultimately what it comes down to it really is not an alleged wiretap violation though it was clear that the case agents got material that had been appropriately monitored and redact they were they were given separately they were place and this he's got all those calls he could've done whatever in the district court to establish improper access to established prejudice he didn't do that the record  silent and principle if he said he could have said that x piece of information that the government has could only have by knowing this particular call exactly your honor and in that certainly percent of the calls sixty seconds or longer were minimized agent parkinson explained as to the arguments the defense were making about we shouldn't we shouldn't have listened to as it related calls what we were investigating money laundering we shouldn't listen to a personal call but we had an example of how that turned to crime and that was actually introduced at trial family because we had assets being placed in his minor son's account close case and one of what your responses to the questions have been asked in terms of the nominee ownership of properties in these accounts and how they would connect to a conviction fo conspiracy to commit fraud one to one kalpa she was in yes your honor and i would like to say i mean the reference both in the government's brief in from the district court the fact to say that it's a it's a close question the fact is the trial court denied the rule twenty nine and denied what was proposed verdict motion so there is such a thing as being a reasonably close question and still this comes down on the other side of the line and that's what the government believes is the case when the proceeds of the fraud and that's what these bill but not dispense drugs were there were five hundred thousand dollars worth of drugs in boxes which were c which were stored in two locations ok one location was the and the other location was the apartment which area of the defendant the government did allayed no certainly not a search warrant made it look like a burglary so that mr sony's drugs had been stolen that's five hundred thousand investigator and it's in response to using the private detective that she makes the response because medicine legally you can't do anything about it right it directly followed since so they're not going to the police they're only using private investigators and she says well legally can't do anything because is that any inference because she has the same kind of boxes in her apartment also as a yes your honor and so she understands what's going on here is a direct inference that we asked the jury to drop most of us if a friend of ours had an extremely valuable items five hundred thousand dollar item stolen from their house and here is a painting or jewelry or whatever  you know and they said we're talking we're doing private investigator most of us to go yeah what are the cops what what are the police say it's a very clear common commonsense inference that we asked the jury to draw this like she's not asking what the cops are doing she's going yeah legally can't do anything because legally you can't do it because the stuff is in fact illegal yet that's it that's the end for another layer that says you can't investigate medicine and that's the you know  honor and that was one that was discussed with the jury in this one that they chose to draw in this case in convicting her and the fact is this we're on the jackson versus virginia standard we are your honor it has to be no reasonable jury could have drawn that inference and made that argument and the fact is after this suppose that after an after the conversation she continued to store the drugs the boxes of drugs in her apartment for another two months the search warrant the conversation was able twenty eight unable to nine through two thousand and eleven it was june of two thousand and eleven that the government actually introduced photographs of other to other defendants carrying the boxes out of her apartment to be does indicate she was more than a girlfriend who let her boyfriend her name on the legal documents well your honor i think it and i think she understands she had a particular she had a particular call with the defendant bilat patel where she was complaining about the fact that you put all these you put my name on all in the open you just open businesses in my name but you don't take me in them you exclude them and she's talking about yeah there's going to be eighty million dollars in these businesses but you're not letting me in there was another instance where she talked with one of the pharmacists and she had to get all the information about these because she needed to talk to the insurance company blue cross wanted to talk to the owner and see you know i need the information so i can talk to them so she's in the defense side they ar patel sometimes signed her name on corporate documents so she didn't know anything about well she had very clear conversations it should know not only that she knew she was a nominee on her but she knew that these businesses were  profitable and then there was a particular call where she discussed using the using the recruiters in paying for business and they were you know the defense tried to a trial and they try on appeal to say well they were joking around that she was going to become a recruiter and get pharmacy business for him and earn i think four thousand dollars a month to she could bring in two hundred patients yeah she didn't do that  d she had already brought what some small number i think so i think so but that really wasn't in here's the thing that was not her role in the conspiracy there were others who did that but remember the argument here is not that she didn't do plenty to make her part of the conspiracy the argument is that she doesn't have knowledge she knows in fact that this is how he operates and get business gets business and that's illegal get getting kickbacks for patients that's part of the fraud conspiracy this being charged here that people that he pays kickbacks in order to get more customers to his pharmacies and she's got a direct conversation with him where she's laughing around about yeah maybe i could do that too so i think that so i think that the evidence i mean really the question is how much do you have to do before the jury instruction it's a standard jury instruction which says it is reasonable to infer and we are talking about is what we tell our juries it's reasonable to a for infer that a person intends the natural and probable consequences of their actions in the jury was entitle to reasonably in for infer that if you poses a nominee or are they you get the information so that you can talk to the insurance company you store the boxes of medicine in your apartment even after you know there's been this that and you're going oh oh who store where they from question what did the court rule on a disputed matter it seems to me that what distinguishes it from simmons is whether what this court has before it is enough to allow meaningful review if the court just picks a number from a pre sentence report and says nineteen million this court doesn't really have a way to review that other than the pre sentence reports in one thousand million in the district court said yes here the court has a basis for meaningful review of the meaning for review is one hundred percent of the visiting doctors of america of e t a fraud and twenty five percent of the rest in by the court to get to the added the government reach the twenty five percent of the risk figure other than to say well this is a conservative estimate that's good and well i think there are two things first of all that was very clear not only from a wiretap call but it was also then followed up by testimony of baba by patel and several occasions said i expect to make twenty five per cent profit or is just not worth it to open these places in the second aspect of that was some of that profit and from legitimate sites of pharmacy products and prescriptions that the profit and that's where the government established that by and large these price the he even said himself he said if you don't if you don't do the zigzag if you don't do the corrupt way you not only don't make money you lose money we love we had the testimony where we had the description of well when we say a pharmacy what are we talking about and we had testimony for example that one of the pharmacies it would be about half the size of the jury box they'd put these in a doctor's office that they were paying inflated rent to the chances that this pharmacy was going to make any money you know occupying a ten by twelve foot corner of a doctor's office that people are going to come pouring in off the street and go to this pharmacy really was something that the witnesses who talked about that said no in which the court accepted there's just not profitable pharmacies when you rent ten by twelve foot space from a doctor and say now we have a pharmacy and so these pharmacies if you accept the proposition that they were profitable period you could have some legitimate medications and still not be profitable ok if the only way you can make them profitable is to engage in this massive fraud in your profit is twenty five percent then it's reasonable to go with a twenty five percent number the total billings from medicare medicaid in blue cross for about sixty seven million over the relevant time period that's the way you get something like sixteen million out of the a plus two point nine out of the yes in understanding that we only have to get seven million in order to uphold the district court you know the fact is that it's pretty conservative if you've got if you wind up saying it ends up being almost closer to that ten percent i know we've got the two point nine million vdare but it's really it really is there any reason that you didn't try to do some sampling that is you to get that sixty six million figure you got to presumably know what the buildings were that came in let's say to medicare or to blue cross as to why you couldn't have taken you know a sample of those billings and then looked at what they were one of the one of the difficult things and this is this came up in the in the second trial one of the doctors that he had bribed to do it you have the doctor who writes she was a podiatrist who wrote like sixteen prescriptions per patient paid for with bribes and so in so the government what the medicare system won't pay for anything that's a result so that even if right even if you're argument is that even if it was medically legitimate and actually dispe the doctor was taking kickbacks then the nigger manipulate anything and so you also have this false the really what it's all about medical necessity i mean it really is and the fact is my wife patel's method in this whole operation was to spread the money around to pay the bribes and kickbacks in order to get the business to his pharmacy and that's the basis on which really seven million out of sixty seven million is a conservative number correct about that and just relied on the trial transcript the trial transcript and i also would indicate that the defense also put no forth no no sort of alternative calculation or suggested i mean their position in sentencing was they wasn't guilty so we had trout testimony about these pharmacies not being profitable without the corruption and fraud and if you accept that they were profitable without the corruption or fraud then the twenty five percent figure is very conservative counseled or any matters that the other judges wish to go into thank you right we have time for rebuttal in sequence mr loran accuser with respect to the use of u agency which is authorized to conduct the interception of the order in the first order in this case specifically authorized agents special agents of the da to in to execute execute provisions the information that judge torah in lopez kind of spoke in shorthand as a duty of candor to the court is not something that judge wherever made up out of the whole cloth if it's found in the it's found in the language of the statute and it's essential to effective effective supervision by the court as trunkful if if lopez is right should they not be required to put in that and agent the agents or the nature of the letters is to be spelled out in the in the order and in this case the order specific may be in the five not persons working under the supervision of you think agency means not just that i say i'm g s a but i am joe's heating company working for g s well i'm not sure and i'm not sure it has to specify the name of the company that the contractor is employed by but i think several points first the issue is not whether or not they use these communications attorney client communications at trial the government's far too clever to use these trial this was whether they obtained evidence through attorney client privilege to communications was cross examination but no witnesses were put on by you at the hearing isn't that correct that's correct but we did elicit testimony from mr parkinson that shows that that they violated the authorization order which said special attention be given to minimize all privileged communications not only were they not minimized zero percent were minimized they were entirely record all of them were recorded now with respect to the taint team this court has in  which is said to page four of the reply brief it's expressed serious concerns about the use of team teams in general and here the teams were in the very same room as the agents who were investigating the case it's like you are a grand jury subpoenas on steroids one quick did though have almost no calculation it's not quit with the government said we said the evidence that was seized from the to the amount of evidence that sees pharmaceuticals that's the only reliable evidence we have with respect to the loss of what was that amount i think it was approximately five hundred thousand dollars of seized evidence so that was our thing and that was supported by the stored evidence in the apartment that's right that's right six out of eleven thousand which involve my client most of the time you see him not agreeing with and this is verbalise not agreeing with what was part and parcel of the conspiracy so as to course take that into consideration by think i have two minutes that i say so let me in those two minutes very quickly titer parkinson the agent he says he does not recall in the eleven thousand telephone conversations a single piece of evidence that ever said komal or china assisted and falsifying any records carcassonne the agent at page seventy six twenty five acknowledged that chinese signature on some corporate documents was not the same as a driver's license her name does not appear on a single one of those bank accounts i've laid all of this out in the brief is there anything in the conversation between patil that was recorded that suggests  has been filled in on this grand conspiracy about dispensing excuse to keep saying that building with dispensing for fraud the answer is no there is the slimmest kind of argument here this is all inference yes she had a conversation yes she talked to an insurance agent nothing illegal about that what it what about the fell off in the boxes that she kept in her apartment there was nothing effected ninety three forty one ninety three forty two it stipulated there's nothing illegal about keeping medicines in your apartment you know that but if you're keeping them for the purpose of there being be indeed drugs that are part of the conspiracy then you'd have to show that she knew that that was why they were there and there  what the government says that that the theft of the comparable matter which is not being dealt with in a let's say above board fashion because she knows that they cannot because they are illegal you know that i mean that's the closing argument to the the they say that's their best evidence the question is under jackson could a reasonable juror believe that any reasonable juror or maybe ninety nine percent wouldn't but the answer is no because it requires an inference it requires you to think from that question that she had knowledge of the specific conspiracy and agreed to participate in the conspirators on the argument that she had a conversation with mr patel that initial brief where i have the whole indictment in the scope of the indictment and also i've set out the fact that parkinson agrees that she'd never had anything to do with marketing there wasn't marketing but them the fact that she knows that people are being paid to bring prescriptions to the pharmacy and that she could be paid to bring patients to the pharmacy doesn't that indicate that she knows that people who are not ordinary and legal prescription by years are being paid are being brought back up to individuals to the pharmacy to buy to buy pharmaceuticals why doesn't that indicate give me your best argument for why that's not pretty damaging evidence it is not damaging evidence because there is nothing in that conversation that reflects the fact that she knows that something illegal is being done with regard to that effect i think everybody agrees it was a quote joking kind of conversation and parkinson agrees that there was never any marketing that she did she was ever paid for any marketing there's no evidence at all that she participated in any marketing and so when you're talking about the indictment it's i'm so i'm just trying to understand you can assume that she knows people are paid to go by to take a prescription and get drugs and it that it is an inference that that is knowledge of an illegality but first of all i'm not agreeing that she knows that that is happening i don't think there is evidence that shows that that's happening and the indictment does not talk about marketing because there's no question that marketing does constitute or can constitute a medicare violation but if you look at page five of my brief or i talk about the scope of the indictment it does not talk about marketing false and fraudulent claims soliciting or receiving kickbacks and system of justice case will be submitted in the clerk and i call the next case