all right and continuing with seyfried heart we will now hear case number two for this morning united states against machinery mr glo that we're very proud when we go off on our own and we i have a successful career for over twenty years before he was solicited by  medical education and they needed somebody who could were in there patients to sacred heart something most of the up the guy attrition short time there's including the residency director could not kill someone to bring their patients to a secular heart you cannot lose sight of the fact it was in a very bad part of the city now there is references on the record that mr nagel virt when he came in he improved the physical object that greatly in my client white going there and he says it in a recorded i like being very sense right recorded but what happened was and and five years operating wofully what a clean frame of mind in good faith and then mr poor oh comes to him why it ain't all terrain the terms of the contract which does not require any specific number of patients no number of hours no volume and says i want a list of patients mr arnault back is not happy with your performance this is where the taj mahal balance but the program was important to the high school very important that changes their medicare billing exactly there's a percentage there's a percentage there the program itself was important that i asked and they were about they were about to lose  get paid because he's the most active it's right in his opinion but in fact he's just saying well i'm i'm a hard working guy i'm doing what i'm supposed to do i'm bringing mike mike my people here and i and every single person he ever brought there was a resident and there were more than one because when he found out he was going to be a resident sick or hurt he was interested and he said he he he personally sat in on surgeries that my client did along with medical students who sa surgeries there's no credit there's no record of it because there's no credit with the p r but he actually did the operating report even though he hadn't even began the program yet and he admitted it so my client did everything  and he was always available but the residency director get his favorite people so i'm just going to say this you don't need to talk about it right now though one of the other things i do is go to one of your other arguments on appeal is the amount of money that he's getting because we do have the testimony that it's six times more than than the most your honor i would like to i would like to rely on my written argument because frankly mr dr page fourteen of this transcript from judge conelly yes there he says even before he gets to agency americans he says you take all this together these conversations show that the government's apologize so only by changing the rules of the game telling my client that we need to know more what you're doing mr novak is unhappy and the agent said they didn't they never told mr pearl to do that he was not supposed to change alter the contract so then my client gets mad and he says he says what he says well it's in general in mid i thought ghost on the march meeting and i kept on talking about the march meeting you know and so my client writes this statement which is not incriminating he says i was doing this for years going along happily and all the sudden i'm told my services are not being appreciated they're not satisfied with my work and then and then the agent is suggesting i'm saying to the court i'm suggest to the court well so you know it turned in to pay for patients and my client have said well you know i suppose you can look at their what i mean you just don't know because it's not recorded in and to me it's not willful it doesn't overcome his obvious showing of good faith and then when you figure figure there he never even took his april check maybe the judge should have said well maybe he had knowledge that to himself that it was illegal and so he didn't pick up his last stipends and there's no evidence after turned him in the a criminal by tricking him by dirty tricks and frankly i said so it's like an entrapment argument i'm not sure what you're doing well they they started asking him for a list of names of things if we look doctors you know when you and the school sort of goes to the third argument to the bras a garden you know brassy you're talking about millions here you're talking about peanuts no doctor no lawyer is going to risk his license  couple thousand dollars a month and my for no i have to say mr cleverly i've seen some strange cases over the years you probably good morning honors and may please the court my name is brian moloch and i represent the united states government the evidence in this trial was more than sufficient to support the district court's verdict in our brief speech set out that evidence at length there was witness testimony records recordings and as the court has mentioned in its prior discussion the defense counsel the defendant's post arrest state and i think based on where the court was with the initial questions that the government like to start by focusing on those reporting i think those reporting or whether or central this case as judge as the district court found this is about the defendant's knowledge in it and here we have direct evidence of the statements that were made by the defendant in the months leading up to the check that was charged in count forty nine as well as on the actual day of his receipt of that check and so looking at those recordings it makes clear that the defendant himself knew that he was being paid by sacred heart for his patron girls knew this was a quid pro quo the first according to takes place on february eighteenth two thousand and thirteen and that's a phone call between the defendant and anthony pero at that time anthony pro us cooperated with the government but the defendant of course did not know this the defendant is the one who picked up the phone and made that phone call and the reason for that phone call was buzzing because the defendant had not received his monthly check the sacred heart is this when they start going through that dance about whether he has to come and get it in person versus get it through the mail that's correct your honor and in that dance the defendant says i received by mail for years parole then informs him that no back had asked pro to hand deliver the check to the defendant and in response to this change the defendant on his own without any prompting from mr pro says i've it quote seven cases at sacred heart last month meaning january two thousand and thirteen again without prompting he then offers to give mr perot a list of patients if no back wants to see that list so is there is there any reason why that isn't really just a sense of saying look i have i've had this long term contract with you you know i do all these procedures over there the medical residents and students kind of serve  he was purportedly being paid to be the director of external party africa all those who wanted a multiple title or multiple people with the same title exactly that was a position that i've been told twice over including by someone who was not being paid part in addition there was that set of responsibilities that were set out as the district court found it was abundantly clear from the evidence that dr marcia didn't perform the vast majority of those responsible but he is doing something i mean the procedures are real correct and the procedures are real and the procedures were done at sacred heart because that's what brings in the billings that's what his job was as he described it in one of the recordings with mr pierce and i think the jump here is made clear by the subsequent conversations when there is a withholding of the check the first thing he  mentions is his patients it's not his teaching of the students it's not the residency program and indeed in all these recordings the residency program does not come up once the residence do not come up once teaching does not come up once instead it the second  recording that i want to mention is the february twenty second recording this is that first in person meeting between mr perot and dr marsh area and at the start of that meeting what happens mr pro gives dr marsh area his check and dr moshe a hands over the list of patien to him dr murray then explains that that list is the name of patients that have been done here in the last month now that these are the individuals that i used to help teach the students these are the patients that i've done here in the last month mr pearl then asked if these surgeries were surgeries that were performed at sacred heart hospital dr marsh area that confirms yes these were all done at sacred heart hospital they were all done in january two thousand and thirteen rose says i will give this list to mr novak dr marsh area then says i don't have to come and shake i come and do my job i leave that job the tie here is the receipt of that check the receipt that check is associated with the patients that he's going to say what are hospital and that connection a quid pro quo i becomes even more clear when you look at the final in person conversation that is reported here that is on march eighth two thousand and thirteen that's actually the date of the receipt of the check that is charged in count forty nine and in that conversation where is the court alluded to earlier there's the taj mahal reference and i think that full conversation is actually important because he says novak wants the taj mahal all or nothing he then goes on to say he meaning no back should be very happy i bring my patien here this is not the first stop for me it's in that context that he then describes himself as the most active podiatrist in the department of podiatry at sacred heart hospital so we have to say that the jury is still out to infer from that he isn't quite saying and i'm going to stop doing it if you stop giving me the checks and that's what you want the jury to that's what make that would make it legal right and i think that's where his statement later on in that conversation where he says you know i can get you a list of all my activity it's very press of and then he says i don't want to go anywhere else because i like you i like it i like it here that's what judge cannot paraphrase exactly and i'll bet you anywhere else they like me that is to the court's point that is the threat that is the you are changing the i'm up i mean we've had this program in place for a very long time i bet you anywhere else would like me and why would they like me because of my patients not because of my teaching in the residency program again that's not mentioned any point here and i think to the courts point earlier when you look at the defendant's post arrest statement you know that this is a quid pro quo because he says that and it defense counsel said there's no recording but there are notes there was testimony especially in jam rose was cross examined by defense counsel notes that were taken by the agent on that day back and that i think is a significant point that he makes a number of admissions he initially says yes i've been working at sacred heart for a while yes i've been paid by sacred heart he calls his payments  but he admits that he was paid by sacred heart this quote stipend regardless of how many hours he actually taught me he could teach zero hours he gets paid the stipend he is then asked whether or not the statement was nothing more than payments for patients and that's when he says yes you know he admits my contract turned into pain for patients those are the words that are written down at that point in time by the agent i mean i suppose ordinarily you know a doctor is doing a procedure at a hospital and the person who gets billed for the cost of that procedure is the patient you know or the insurance or medicare or medicaid or somebody not it's not the hospital the pace the doctor to perform the procedure the time perhaps sent a separate page to the patient of the insurance company and yes and i think that's where is the quote mentioned earlier and this is the second point that was raised by defense counsel dr petros testimony combined with the testimony of numerous other dieters to a part of the level for people with these titles would be correct and i think i'd point as we said in our brief to alan to mete vented to panzer in which the court has said you do not have to be monolithic in terms of the admission of opinion expert testimony can be based on those surveys it can be based upon you know a full statistical analysis or in each of those cases there was opinion testimony that was admitted based upon the special interests that are books perience of the expert that's why i'm saying that's essential to come how tire says have reported i think the critical piece here is that before letting in the testimony that was objected to that foundational objection the district court went through and performed its gatekeeping function it actually made the government go back to lay the foundation for that specific knowledge and as was set forth in our brief that was based upon twenty years worth of work sixty on site visits discussion during those visits plus as dr trauma testified earlier his own experience running residency programs his own experience running  if chicago were in places with that kind of price structure it doing no where he was going there was no testimony about specifically where he went to but you know this is an individual who ran the entire council that oversees the  podium medical programs and national aids correct and that was his responsibility of part of his responsibilities but then there was serving on this on site about a ration program those are the about you ations that the defendant mentions multiple times in this brief that took place in the last one in two thousand and six so well prior to the events that we're talking about here in two thousand and thirteen and dr petit in that foundation that was laid and in his testimony did not simply offer of the baseline  statement they actually takes it if you will that the courts have created instead there was a clear explanation of the bases for his opinion and there also was a clear as the court indicated a chance to cross examine him about multiple opinions to call into question as the court pointed out you know the chicago market is there a difference between these two the testimony however was that the most that dr petrograd heard of was four thousand dollars per year here there was payments of four thousand dollars per month that is a significant difference between the two and the court was permitted to and i think appropriate through the inference that that shows that the payments here were not for his teaching in the party at residency program they were something else for his patients that the final point here and defense counsel i think mentioned this is the brassy piece and i know this was something the court heard about in the prior arguments so i will not belabor the point too much but here we have an economic regulation that does not threaten any constitutionally protected rights the santa requirement is a significant requirement the district court's decision here i think appropriate demonstrated that as the court mentioned he was acquitted on two counts and convicted on the third so any vagueness in the statute as th court and other courts have previously held is more than rectified by that significant chance requirement we're not talking about the government being able to walk in after the fact and convict anyone the government has to show knowledge and wilfulness which was what was required embarrass the was align itself with every other search who has been asked to consider the language of the anti kickback statute this is not an extreme interpretation by any stretch the imagination instead it's a recognition that reflects the text of that statute nothing more nothing less so what do you think the primary evil this came up in these briefs of paying for referrals is i believe that th history and i think it's been borne out in the case law was that there is generally an understanding or a belief that the patient interest should be the driver of patient care when you have payments to doctors to convince them to bring a patient to a specific hospital that inverts that typically such essentially conflict of interest based i believe doctor's thinking of what he's going to be paid as opposed to what the patient interest would be yet and i think it's appropriate to say that the primary driver becomes the doctors profits not the patient's health and that is the concern that always takes place in these cases and that underlies all these cases and in some cases it's graver than others but as a general matter when you have something that steps in the middle of that relationship we place a significant amount of trust in doctors all professionals in this country but in particular doctors to do the right thing and to do the right thing by their patient when that's destroyed and you end up in a situation where the doctor is looking towards their bottom line that has significant ramifications and that is one of the reasons why the anti kickback statute was an active there's a panoply of others but i see i'm almost out of time so if the court has no further questions the united states would respect the request of this  statute applies to strictly turns people like my clients who want to be lawful members of society into potential criminals they asked problem it's to say you have to be sharp to realize you've crossed the line and the pay for play because as to just district judge point out every contract every relationship between a doctor in a hospital involves patient care and there were no one th there is no on the syria operations here so i want to once again say he's going along wofully until mr poor girl says and i say that he suggests that we need a list we don't think you're doing enough the boss is dissatisfied and then of course agent jam roast and get a decent conversation we don't know how the conversation went but the he writes the word stipend in his statement you can't read it it's it's