is on our docket this morning first case united states versus farms i fail to see any difference in the present case after serving a year in jail dr gone she was exonerated by this court and released the same should apply here your hon have to cooperate testifying cooperating defendants here seems to distinguish donji well i understand what gandhi said was where's the insider to say that dr aleuts who was the government eligibility witness for eight out of five hundred patients never said and he i think i even asking he did not call dr barnes and said oh by the way three of your patients never told him that anybody was not eligible never told him oh by the way i'm not seeing those patients yet on billing for them i am committing fraud she said she never told him that she never told him she was falsifying documents on his g code billing in connection with the audit undercount forty seven so it's exactly the same they were people around him who were in the fire but he was outside of the fire just like dr gunshy everybody on the inside me and lisa cornell stated that the the fraud that she committed was a conspiracy internally for the case mix diagnosis to jumble up and give false diagnosis to get more money and she said the doctors were not involved in that now what was proven against dr gunshy was that she was not the primary care physician  circus said that was ok she had a medical directive contract getting monthly pay and referring patients th circuit to prove that she didn't have personal records which we will blasted about during the trial but she had access to the home health records which a stat which was established by numerous witnesses here dr barnes went to the home health periodic lee was on twenty four hour call answered questions by all nurses his wife testified that the dining room table looked like a home health with all the documents and even took him to bed and was nurses calling at all hours from a bind so that mr cornell stated clearly that dr barnes did not violate the terms of his contract she said i was hoping and expected him to refer patients but he got paid for his contract in the contract is also important because if you have a personal services contract that emulates the medical director contract in this case according to two separate regulations immunizes you or exempt you from criminal prosecution because you receive money and referred under four hundred and fifty for the regulation you can have a financial interest in the institution and refer business if you have such a contract under one thousand  a believe it says that it can't even be declared a kickback because you have a contract and all that was fulfilled by dr barnes i begged the judge to read that to the jury during jury charges along with everything else that they call the bible chapter seven which was convoluted during the trial we presented a very clear definition of home down in right out of exhibit one hundred and one o one yet dr aleuts comes along and says oh no i'm declaring all five hundred not ho d not eligible because i reviewed eight and the definition that i used was that he the homebound person only can come out of the house with an army of a village  ambulance which another government witness came along and said that's not true so all of his diagnosis and he never saw one patient said he didn't have to so eight medical records out of five hundred and all five hundred then became the subject of the criminal case and restitution in full ringback for sure and the convictions so that exactly what was proven against octagon g and i know what your honor is saying that there were twenty three and solders here lisa cornell exonerated dr barnes then elisa williams said she only pleaded guilty receiving money for doing marketing which case said was not illegal but she pleaded guilty to that and she said i didn't feel i was guilty but i pleaded guilty and then miss rhonda comes along and said tries to say that yes i committed fraud there is a lot more i could say as as the court is aware but count forty seven your honour's which the other defendants do not have is the obstruction and the clear reading of the statute says that the person who does the obstructing must have received more than one hundred thousand dollars in a year for that statute to have jurisdiction in the court that didn't happen the government and the courts said oh no it's medicare that receives the one hundred or medicare already has one hundred thousand medicare has trillions of dollars because that's the government thank you ron  that any good looking at this matter in particular the defendants that were placed under the microscope by the government those two patients of the senate were unique based on the fact that they each were under age sixty which literally meant that their entitlement on medicare the soli based on the fact that they were disabled so in essence these individuals not only being disabled they also appeared in a moment to dr mold in that base they pushed him in a position that they were entitle or at least compromise at the point in time that they individuals into a system that were not in some type of a health care position that warranted that they were entitled to some form or fashion to home health services secondly as a release that aspect  we testified to the fact that yes they were involved in what an activities but took the position that and plan of care that they sent over to the doctors that it was the doctor's ro as it relates to this concept of a medically need like say this is a part of the record so with these doctors theory be in agreement for starwood concepts that were going on that you were not aware of and the testimony that was present at this one particular health care source was poured in a process who literally turned to the jury that they were looking for the with no individual coming in to testify that dr jones was engaged in any type of conspiracy none whatsoever the star witness in this matter and if you remember you know the saudi times eight that no one should be convicted can be convicted negligently entering a conspiracy just the state's star witness lisa can now testify that she never entered into any type of conspiracy  this with dr jones that she never paid him anything money no money salary no kickback nothing what the government tried to do was stated because dr john's wife paula jones was working there that was the money to medicare so he never reviewed he also said that he had never spoken to and it would have been better for him to work with and look at and talk to those patients that they have actually committed the fraud and he said he didn't do it monthly checks nothing coming in of that nature so basically no factors it's very difficult to understand how he could have been found guilty and the spirit suspects statute in route twenty nine but more important to understand is that they also talked may please the court dr evans has a unique position in this case and in this appeal he was acquitted of the two major conspiracies in this case so i'm going to focus on just the specific counts of conviction and the errors that affect those counts the st comes in count thirty one in which the government prosecutor indicted prosecuted and then convicted dr evans of making the same mistake the government made christa bradford testified at trial  remarkable display of candor we made a mistake when we thought that was the other joe we we thought that was the joe we that was his patient he certified the wrong joe we and didn't see either one of them face to face within the sixty days or whatever the time frame is hadn't seen their original joey since two thousand and nine and never met the nd joey which is have a mistake was made so how can you say that  well it's wrong because what would a did was the government changed it and the mistake is he made a mistake he shouldn't have certified either joe which but the four hundred and eighty five dollars that was in front of him was for another doctor's patient that was the problem he signs that believing it's his patient believing that one of his nurse practitioners has has in fact referred this patient for a home health care he knows there's no you have to do the face and the doctors know this they know they have to do the face to face i not good enough to go well a few years ago remember this person had a problem sought to certify them but that's not what he was prosecuted for your honor he wasn't prosecuted for not doing a face to face that wasn't what the indictment was about what the indictment was about was very gotten the right joey but the fact is it is either one if this if his claim was you all prosecuted me for the wrong joey and i saw all the right joey that would have a really different case you probably want to want in the district court but i'm just having trouble with how it helps you big because your honor what you're doing is reaching beyond the indictment to convict him of a crime he wasn't charged with what we have here is the government makes a mistake as to which jo solely on the indictment was specific to one joey and proved the other and that's the end that's that's the basis of our crew little justice system he's entitled to notice of which joe wait they got the wrong week and then finally in their brief they change their theory of prosecution a rd time and they say oh no the indictment count thirty one mistakenly described two different people named joey no it doesn't it describes one it's just the wrong one legally every alternative is a dead end for the government in this case with regard to count thirty one you can't sell the judge judge joe when you sat on the hoover panel and this is that identical to what happened in the hoover case and for the same reason this house has to be reversed just as it was in the liver can dress this doctor loose because i'm a feeling like i'm not getting what the district court thought was ok about dr lutes having the wrong definition of how to homebound and using that to question the doctors in this case we don't get that either your honor we don't understand how the government can put on a home health care expert who's never read the home health care regulations and who give i mean i agree he can be an expert on whether somebody has diabetes or not without knowing the home health care rules but he testified that somebody isn't home bound and home towns are really specific at herm that doesn't just mean only people that are hiding under the bed forever it does mean people that can leave their house your but they have to have help and so on so forth you're absolutely correct judge gorsuch who's now just discourse which in caring hearts versus bern will which deals with chapter seven and the home health care regulations said chapter seven is a controlling regulation and so under both daubert and kuvo tire seven o two you have to tie your expert opinion to something very specific that is a reliable principle doctor let's didn't doctor loves only made passing reference to chapter seven and then he said oh they're liberal well no they're the law and if it's a controlling regulation and you ignore it but to give expert testimony and that's the only evidence that these people were not homebound that's reversible  morning your owners elizabeth stopped him on behalf of apology and i know that there has been a lot of the record is long and you're familiar with it but i do want to point out briefly that mr jones is in a different position from every other  nt that is here before you today and that is mr jones is not a doctor and make a difference to this issue when you're having to rebut the notion that that's all of the dollars who are were fraudulent and you're having to come in and show you know some of them were illegitimate the argument is well the defendants are in a better position to prove that but your client isn't because she's not a doctor she's a billing personnel does that make a difference to that analysis it does your honor because in fact so therefore the owner of the company wouldn't know that that was wrong in the same thing is true with the bill or if the bill comes in and says this person is homebound and they have diabetes and this and the other thing and i went and saw them today she doesn't have any knowledge of that she doesn't treat them and in fact what would be illegal would be argue enter that she does know something that at least some of these are projects let then so because that's what she was convicted someone just getting a sense in question i understand you disagree with the conviction but if she was correctly convicted then whose burden is it to show hey she had no way of knowing you know ninety percent of them might have been legitimate even though a few of them were not and how how would that work what's the physics of that given that she's a billing person you know i think it is difficult to say well if she jury was correct and allowed to find that she was able to be convicted that would imply that she must have known right that she was that something was fraudulent how much of that she would have known i think i think it's always the government's burden to prove the amount of the fraud and so you know we get to sentencing and i think we were actually going to rest on our briefs on the restitution point but you can see she was charged with an amount of three million dollars which was ten times as much as what she received and it was three times more than any doctor who was actually doing the fraudulent things and so that implied that she knew that every single bill she submitted was fraudulent when she said no indication of that right i mean this this company did have some patients who really were homebound and yes and had some patients who were private pay as well who were medicare patients who they were billing in different insurance companies and so i know that's not a that would be a part of this either but that wasn't part of that was it that they tried to separate that out into percentages and that sort of thing and so i think they sort of went with the best they could but i think the bigger issue really is that you know there it just isn't any way for her to have known that if these people were hold on there's no proof other than the fact that she got a raise that she knew that anything suspicious was going on there  i mean it but it was also raised i don't remember ever having my salary doubled i would say that if it was your idea if my salary was doubled your honor i would say that i would not ask my boss why that happened i like to think that i would say thank you but i don't think that's r what's the doctor you know right but i mean we can't infer someone's knowledge because of their spouse i mean i i don't think you can say because her husband was in a conspiracy she was necessarily in a conspiracy you know and sold her that that's part of the whole i've done is the government's theory what it is to raise because all of a sudden making a lot of money and we want to share it with our employees it was ever raised at the same time as well they should jake's got a raise that was larger than the ones that mr jones got it was a raise at the same time that she became the c f o it was a raise that was closer to the salary that she was making pretty good trina before she and dr jones left new orleans and then came back afterwards so there were other reasons for the raise and the problem to vegas and this court still said you can't prove that she knew those people were homebound because they didn't say that and they don't think anyone ever testified it's not in the record that someone said to mr jones we're going to give you those big raise in your husband's to send us some fraudulent patients and that's how we're going to give a kickback to him i mean and those are two separate points i mean you could legitimately have a homebound patient but you're paid for the referral to company and a rather than company b and that would stored in with shelton barnes he's the st is the person on the personal contract he started out with outline and was getting kickbacks then so and the testimony was that the dea contracts and the invoices were put into place not without meaning just to paper the files and that the doctor saw mind random doctor did and then the doctors would sign that and they would keep it in their records in case of a medicare audit in that an aspect of his concealment and also demonstrates that the agreements were put into paper the files to cover up the kickbacks in case of a medicare audit and you want the jury heard from shelton barnes nurse practitioner know and i mean give me something to him hold on to here ok so he joked that she was signing his name to forty five she wasn't doing this as a nurse practitioner and she testified and so did ilesha williams who is his villar and also worked for a by getting paid for referrals and both of them pleaded guilty by the way and they were they were accompli testimony anyway getting back to it shelton barnes joked that rhonda mayberry signed his name on forty five's better than he did so he let her sign his name ok but is that's always being prosecuted for it's the certifying people's hometown that warm well and how did he know she won actually going and seeing these people men weren't actually home because she came to him and she was very upset and this is her testimony and he said ok i'll sign your name i mean i'll sign my own name from now on and case something comes up in case something happens and so and she also testified almost doctors are scared of medicare i mean well that that you're scared that something you do may be technically  a problem to me doesn't suggest that you know that this person isn't homebound if you're worried that this is the government they're very technical medicare is highly regulated it's very technical doc some doctors will not accept medicare patients exactly for that reason they don't want to deal with this and so i don't know that him being that they're being concerned that somebody has been homebound for a long time which may raise questions and therefore we need to be sure we're complying with all the technical rules is the equivalent of a knowing fal and more than that he was getting kickbacks and he was there were there were certain other things that were happening like he was signing shuffle nurse at a bar i just happen to be the cousin of catherine neal so there's and all of these are incentivized by the kickbacks that they were receiving and there's  came to abide to review review patient records and after they went on the cancer software where the nurses kept their notes he didn't get a password he never signed in we had testimony from the cancer representative to that effect luce testified as a fact witness about patient harriet halt and she was one of sheldon barnes certified patients dr lith said he was he was her primary care physician he had no idea  was in home health care and that she actually ended up in the hospital needing blood transfusions because dr barnes put her on over the  contra indicated because they they both malpractise that's not wrong but it's still in straining the real consequences of what these doctors were doing and that is they weren't seeing these patients and one more thing about dr barnes he he had no patient records whatsoever for the majority of his patients and so one of the things they certif their forty five is that this patient is under my care and he didn't have any any evidence of that as to his medical agreements they kept how much he could get in terms of kickbacks and he was supposed to invoice concern real conspirator meeting with her where they discussed that her husband was going to be referring patients and that her salary increase had nothing to do with her brilliance or master's degree or anything else lisa jaggs took the stand and testified that his nd in command she met and her mother did too with politicians and they discussed the kickback arrangement and that her pay increase was for her husband's backs and not for anything based on her salary and that is page and thirty four of the record so on on paula jones can you explain how she's better positioned than the government to prove what wasn't fraudulent about the three million dollars she's now been charge the district court made a finding at sentencing hebron that the fraud was so pervasive that you couldn't just sorting out the legitimate it seem a little bit funny that the billing person who has nothing to do with deciding whether somebody is home down or not is paying the most of anybody for this she is just a person whose whose i agree if the jury found that she but still she alone could have done this fraud no but she returned she had it and it mant and that's two thousand one hundred dollars that she knew was a break even amount and several witnesses testif that she were turned any any patient records that you want to be the basis to the nurses i mean i understand how there's an argument she should pay something i understand there's an argument that the  conviction was proper but why should she be it just seems very odd to me that the least involved person in terms of the medical decision making is paying the most  three paula jones was instrumental she was the heart of this fraud and without her billings  weren't enough asian bradford testified two times when she greenlighted under the kinzer system you you have to have three green lights this is a computer program for billing and they all have to be green before you you can bill and her cancer and agent bradford testify that she pushed bills through and said there was doc at the proper documentation when there wasn't and sorry i can't find the word but she's she was her hand was in every almost every bit of an organ i want to ask you something else i want to ask about dr loops or people pronouncing a different it's whatever dr l how can it be that it's ok for a an expert to get up and testify that somebody is not home down based on anything other than the medicare definition of homebound you're on to this this case isn't about violation of violating the medical regulations it's about the medical regulations age yours in evaluating whether defendants knew what they were doing was wrong but if it is not wrong of the person's home but i understand the kickback i'm putting the kick back aside but i'm talking about the conspiracy to falsely certify people ok the doubt is not false if the person is in fact homebound and needs that care so while while dr lewis can testify somebody isn't a diabetic or something like that i get that that isn't necessarily the same thing as being homebound or not right but medical necessity of the services is and he testified for example these doctors used the diagnosis of cerebral impetuses that is a rare genetic disorder example went out to see one of the patients and to figure out why they were there other family members like evelyn look cool or they testified that these patients were not happy and i'm just i'm i mean there's a lot of evidence in this case i'm not talking about that i'm focused on the expert because i think juries but stock in experts and i understand that he can testify to a number of things that are relevant here but i'm just wondering it seem to me that he has a very narrow definition of what's home bam you have to be removed by an army or an ambulance not a lot of people would meet that definition who never nevertheless are clearly homebound how can he be allowed to address that how can he be allowed to testify along those lines in front of a jury when he doesn't know that that isn't required to be home he was offered as an expert in internal medicine and the medical and she testified that this did that as far as the standard of it takes a village that that's not the standard she may clear that you're what the standard was and his his his  testimony was more than just a doctor looking at these files and saying these patients don't have cerebral of those these patients are almost blind these patients don't have anything in their patient records about rheumatoid arthritis these they were using the very highest billing codes they were shuffling them around and he could observe that and he did they would just shuffle does this with want or it's wryness or hypertension he was absolutely testified to say that these patients didn't have what the records say they have because he reviewed the medical records including the nurses notes anything any of the medicare billing documents the four hundred and eighty five other doctor orders and all of them materials he reviewed you'll see beginning of government exhibit four hundred those or the patient far less and there's experts said that the doctors were required to keep records for five years and well sheldon barnes he didn't have much to look at although he did testify as a fact witness that his patient here it hall did not need did not need home help but he he was testifying as i'm looking at patient records and i'm not seeing patients who have one have these conditions at all like  they the patient didn't have hypertension in it but it was certified that she did she she identified signatures and the there was also nurse testimony nurse and nurse practitioners feel nurses antics and explained a lot of the ins announcement but the bottom line is the jury heard from lee and dotson after dr ludes she said that it takes a village is not the standard and and the district court found that dr alludes was sort of using an hyperbole if you heard dr loose dr loose is a very  gave the correct one and the again there were there were other questions in addition to homebound on the forty five's not only homebound but in need of skilled nursing and under the doctor's care and so he testified as to just medical necessity but we had another expert who came later and said that the standard that he said i believe in cross was not correct grace and joyce williams war and executions as part of a scheme to defraud there was not only dr lutes is testimony as health as a primary diagnosis and the driver of that home health particular particular home health episode she marrying magri did not have rheumatoid arthritis she didn't have a vision she didn't have stomach function disorder she didn't haven't offered three and she didn't have cerebral live at doses these are all mine and these different diagnoses are all analyzed by our s of claims and they have the day they have the patient and the and that was the wrong joe we from the patient that he actually treated  in another part of the indictment there was actually some description of the nd showing the two thousand and nine joey that he said he had he had seen but not for five years you agree the conviction has to be based on  i don't know your honor and the reason for that is because the scheme the heart of his crime was a scheme to defraud and at that most there was a if the indictment says there was a mailing in two thousand and ten that was fraudulent and a trial you prove up one from two thousand and fifteen you think that's only a material variance it doesn't reach a greater error than  as judge james pointed out he had she was not under his care and that was the main point but he didn't write that's why i know that's why i thought you already was going to be the one in the indictment was actually also because she wasn't under his care was but so the one the one in the county of the indictment he had never seen he there was one that he had seen but not for five years age and bradford explained all this and he never objected to the sufficiency of the indictment not at trial he didn't say i didn't have notice well wait a minute so the indictment a problem with the indictment is judged by whether it's a material variance and it's i mean our position is it's not because he was on notice and he did testify as to word but there was a forty five that was signed for joy for her and there was a four hundred and eighty five that was not signed the jury convicted on the one that bore hidden history evan signature that she was under his care because either way she wasn't and so i mean our our position is you can confirm because of all of the evidence that was presented  but even if you disagree with me henry evans was sentenced as to the his entire scheme to defraud which is on this area so even if you disagree with me on joyce williams it wouldn't affect h he needed to defend against joyce williams i haven't gotten to dr militants testimony but this case in general and that is just around his i've been looking at this to patients he had about life and he had had a falling out with the home health agency of job job in the resume of the doctor he had a falling out there and he told lisa canel two things one he would not sign the existing forty five unless she paid him kickbacks and two that he would bring all of his patients over from this other home health agency to a buy if she would pay him and he asked how much sheldon barnes was making and then he asked for almost double that he asked for five thousand dollars a month and the agreement it was quite a bit more  that he transferred and also and also kinda trish mr trish wanted various things for fifteen months before he was certified for home health he came to the office almost every single month he came to dr meldon's office on and on this one and then after the agreement was in place dr molder referred his trish to home health apparently he got tired of it because he would not be there when the home health aides came in they had a number of missed visit forms and finally they had to discharge him which they didn't do now testified that as to all these doctors they knew part of the deal was they had to sign the forty five's and they did so that that was part of the would be for you diabetes and the medical necessity of home health services so he held himself himself out to be an expert and the government did not step in and correct his has missed definition and let him extrapolate to five hundred patients for that jury because of his wrongful definition  over the counter apparently that that's where it went and miss ha ha is one of the ones who submitted a patient consent form she wanted home health she voluntarily entered it after he testified that she was in voluntarily brought in all the overtime you can be perfectly fine and then four years later you're home no question about it so when she shows up with her consent form and i couldn't get in evidence as part of the appeal judge undergone gene you can call him lax you can call him negligent for not knowing what was going on behind his back with rhonda mayberry annalise to william splitting referral fee s and one of the others in the office you can call him lakshman not knowing rhonda mayberg deliberately ignorant no sir he was not because he was practicing medicine seeing patients in his office working according to his wife night and day and he relied on his p a who had a medical degree herself not a doctor yet and so he relied on his billers in his nurse and i have to say your honour's the improper comment by the prosecutor in this case was agree just it was shocking it was embarrassing she walked over to our side of the table with her hands up and pointed we don't have a video saying calling the clients elitist i guess doesn't care about them that was and that's a personal opinion and it's outside of the record as well as a defense at st at the lats was an elitist isn't that how it all started not that i did not i said nothing i put it on what started the whole well but but judge he should have been it with instruction there should have been an instruction it should have been an apology but that was right before that and the judge said that was an improper comment but but but it came to late it came right before that verdict form was given to the jury so it came at the worst time and and if this court doesn't stop that it's going to happen again a question about a good faith based instruction the bottom line is that the court allow the sepsis of the argot as props in o and in before the jury but did not incorporate the exception truck cases out there are there any that is given instructions but with specific regulations in the jury instructions your honor and there are cases that a back and forward only issue but this is so specific to the fact that this is the language that little we say is that you are not subject to the kickback statute if you fall into these exceptions and literally that was never presented to the jury e judge cost as your question revealed the government does not understand the difference between a variance in an indictment and an amendment to the indictment the counts relating to joe we specifically states beginning and to address your comment judge haynes if you refer to our reply brief at page twelve footnote thirty six a face to face encounter can be performed by a nurse practitioner a clinical nurse specialist i mean i'm aware of th was there evidence of that here there was no evidence one way or the other the only evidence a trial related to count thirty one was the testimony of from dr evans that he had made a mistake and the testimony from f b i agent krista bradford saying well we actually picked up the wrong thought why isn't it deliberately ignored if if he's not meeting with patients of the forms aren't being signed properly be wise and not just trying to hide from the for the fraud i don't think deliberate ignorance your honor respectfully fits into the charge in count thirty one they didn't charge him of they they charged him with so i'm saying more generally more generally scheme on them it ma your honor but it doesn't apply to him because he was acquitted mind you of the two major conspiracies and we're dealing with very specific charges in this case and there are six cases directly on point that deal going back i thought it was illuminating that the government side well you know it's really hard to tell how many of the bills were fraudulent and what bills were fraudulent and it was difficult to do and in fact the judgment itself i think says that the amount was extrapolated to come up with this three point something one million dollars a did go back and confirm the case is us versus ben which says that is the government's burden by preponderance of the evidence to show the amount of the fraud that should be charged and s versus klein this court signed you can't just add the facial amount of the bills that were submitted to medicare together and say well there you go that's the amount of the fraud that you have to take out the amount that was legitimately performed or was performed and that is again it may be difficult to do but that doesn't take away the government's burden to do it and put the burden on to that if there's sort of two pieces to it if the person didn't need treatment at all then the whole amount is  person needed treatment who didn't need home health care which is more expensive and then there's a piece of that they needed the treatment but should it come to the doctor's office who are that piece would be legitimate the the in office charge versus but the part that would be illegitimate would be the home health minus an office charge correct i don't know the de details of that i do want to also mention that the evidence that the government decided to use specifically as to mr jones it does not exist in the record a think because of all of the testimony about these prince supposedly beyond him how if it would be easy for the jury to say i don't wish to know look how many we just had four weeks of testimony that no one was qualified for it and that this therefore the biller must  you counsel we appreciate