we should take their good friends and the office manager and and and then a lot of people on the medical side of the business doctors who are fraudulent ways certifying patients for home health care nurses who are fraudulent only coding certain forms in order to get medicare billing at the highest rates and marketers and recruiters who are individually receiving kickbacks in exchange for having certain patients in roles and in abide services abide at the  time of this conspiracy employed dozens and dozens of employees there were twenty to one hundred and fifty people on the payroll and hundreds of patients so indicted in this scheme were the people at the top management levels people on the medical side that were prodding and irani slee coding health care diagnoses that  who himself was convicted of health care fraud so contrast all of those people with the defendant in this case jonathan who was a member of the clerical staff one of a number of people who are on the clerical staff you can imagine and in a company this large and dealing with home health care regulations and medicare regulations there was an enormous amount of paperwork that was generated it and then in two thousand and twelve they converted to an electronic data system and jonathan nor i was hired in two thousand and nine was twenty two years old in a high school degree and some work experience of peer wind and retail outlay and cox communications no experience and home house no experience in the medical field no experience in medicare billing a person who was confident with keeping track of paperwork and he is indicted along with these doctors and and home health care managers who are actually receiving and in some cases millions of dollars from defrauding the government in this case really boils down to in the brief i raised three sufficiency of evidence claims that are based on  three to conspiracy counts and the one substantive childcare fraud count and then sentencing arris but they all really boil down to whether or not jonathan nor i had the fraudulent intent required  to be to be convicted of these serious criminal charges and what happened in the trial was that the government use these labels to kind of character their eyes what jonathan norris duties where when you go back and take a deep dive into the record and look at what his actual doing its work and what you find is he's someone who is very low down on the organization chart who is doing this work along with a number of other people were hired and employed as clerical staff none of whom were charged and jonathan are was the only one at that level on the clerical side  referring them then to the magical sat for whether or not they were appropriate that then those patients got referred to the billers to determine what kind of health insurance they have this is connor i think it's all right for me to in i read i mean you're right it requires a deep dive and i read twenty one page twenty one days of trial or you've got a strong argument yet you know with counsel mr kraft he chose not to give an opening argument he put no witnesses on he didn't testify he successfully crossed in this criminal eliciting from her that you didn't get any of these kickbacks and then the jury was instructed about your presen and then when i read the closing argument that mr norris lawyer made it was ladies and gentlemen this is just a huge mistake this is a guy who just worked hard so the argument you're making to us is it a dentical to the argument that the jury heard and therefore is your argument really that the jury got it wrong when it assessed state of mind if so what case ever and we reversed in health care fraud they were going to say we don't think they could have inferred a fraudulent state of mind i think that what happened in the trial was that mr nora was given a fairly lackluster defense and that the that the government was able to characterize mr nora's behavior in such a way without any pushback from the trial attorney that mr norm was an office manager but he was not leave and i think that the difference between it and a brief argument that was made to the jury was well was that it wasn't specific enough that the attorneys argument that mr nor it was just doing his job was just doing his job well just doing your job is can could be consistent with acting in a fraudulent manner and doing his job really was coordinating these kickback payments and doing his job really was managing an intake of fraudulent patients then you know he could have been doing his job at the same time as he was acting in a criminal manner i think the difference is that in this case his job wasn't actually the duties that were presented to the jury and i think  trial that he never received any illegal kick backs his compensation at the time that he was hired was at a rate of thirteen dollars an hour which i believe it would be commensurate with someone who's doing administrate of a system type of paperwork duties in two thousand and twelve the home health care system turned over to an electronic system and mr norwood was put in charge of taking out the paper documents that had previously been documented on the home health care services and transferring them into a two electronic data form and at that point he was given a raise to sixty thousand dollars  honor my understanding was i agree this is a very strange case if it's true that so many of these coworkers on the same level were not indicted but i thought that he was tied into the ghosting scheme that they were doing and and ghosting is not banal line and it doesn't take rocket science to know what's going on so ghosting was a was a procedure that was used by where if a patient who had been home how to care for two for too long courting to miss canal and that it would raise a red flag was discharged from the computer system and was continued to be seen and at some point after sixty days or whatever would be readmitted the ghosting all of those decisions about who was to be ghosted came from mispronounce and came from the top of the organization mr nor i had no ability to discharge for it meant for any authority to do any of that in the computer wh h was received by discharge form from a case manager so it went from lisa can now to a case manager jonathan or i or any of the other people that were doing data entry they were given to shoot the said discharge this patient he discharged the patient in the system and then when he was given a re it meant you re admitted person to the system but there were other people that were on that clerical level that were doing that clerical work and you know part of the part of the issue here is that there was no evidence that jonathan nor i had any reason to be familiar with any of the medicare policy use or their requirements this is someone who came in as a twenty two year old and was trained by someone who was very sophisticated in had it had a defraud medicare and so while the ghosting system itself could  and could raise red flags for why are people being discharged mr nor i had no contact with any of these patients either i thought that he attended weekly or monthly managerial meetings at least after he became the office manager he was he was made an assistant opposite manager i think that's what is official title was there were other people as i said oh that level and because there was no evidence that these weekly management meetings you know the anti kickback statute was read out to be employees or so i think i asked you at the beginning you know a lot of these health care fraud cases do involve st offenders and the dollar losses are so high they often do go to trial so we see quite a lot of these sufficien attacks on appeal and i have noticed in our opinions we often a firm convictions of clerical staff because of aggravating factors they were owners they got a kickback etc but my question  time right now but i think that in contrast the merkel case is right i know i know i'm sorry to interrupt but i know in contrast where we justify and deny a sufficiency of that we often say look at this in the record look at this but have we actually ever said oh without those factors were reversed the jury's determination as to state of mind i wrote one of those steve but i can't cite it to you right now ok on you know because it was a case where there was insufficient evidence i don't think that cases so it's not an entirely on point here because a doctor who didn't have sufficient knowledge of the entire conspiracy and i think with that that case sort of centered on whether or not there was an actual agreement to defraud medicare i think in jonathan's case there was you know there is insufficient evidence to show that there's an agreement but i think you know more paramount is if this intent swear it you know the cases that i read from the th circuit where or restitution lost what is him up twenty levels those two arguments though in your brief or only very short would you agree that they are predicated entirely on your insufficiency in other words you didn't argue that there should be offsets you didn't argue such about two or three minutes late we were all waiting i just as i just pointed out i'm not chastising you and you will go back to your well giver well started time again but i just wanted to point that out sorry but i would like to start by giving you specific evidence that jonathan nor i knew what he was doing and i have but i have eight conspiracy that's what that's what the district court said syncing and he had a role in getting the patients in because he was in charge of the referral process in keeping the patien file and then he is he is promoted to office manager with a sixty thousand dollars hey also that was assistant office manager for they told the c p a that he was getting office manager or assists novice manager and getting a pay from instance of that or if you buy the idea that all he's doing is clerical work he's he's getting paid quite a bit just like bill or paula jones was being paid for her husband's kick ass by a pay raise from forty five thousand to almost one hundred thousand so if you buy that a c care training that was put on by medicare itself the medicare contractor did it and they sat through four hours and since home health is one of the know it's the very number one most abuse part of medicare give us back thirty three dollars or four million dollars and we'll nisha jake's testified that her mother went into a total panic she started cutting paychecks and there was quite this is a difficult day i mean the government brought i think twenty seven defendants and obviously mrs grinnell was the top so those are twenty one day trial twenty seven defendants but this guy hor is clerical so i really scoured and here's what i did i looked at the government sixty six dollars page closing in his name only comes up on four peaches then the district court to trial denial nora maybe's not surprisingly only comes up on two pages of fifty p and in all those circumstances i think very much like the government brief record cites or what he did but his counsel in closing said yes he did all the people were the only issue they're arguing is there was no witness that said he knew that this was fraudulent because he didn't profit so what would help me  most and i think it's the best you get on the brief is on page twenty one is any quote from any government witness including the cooperate or in charge of it all that said nora knew we were trying to skirt medicaid audience with ghosting or nora knew we were defrauded as to just being a good clerical witness came closest to saying that he had frontal intent and you quote the witness's testimony educate that's the last that's the clause you cite at the end of page twenty one dollars but all that she says there is she would fire people if they discharge patients how does that support the statement in the brief that nora understood his job was to keep patients regardless of medical necessity that just says true now would fire people how does it show state of mind it says state of mind because of the follow up he goes to them but you see my question is when when the the last thing on his brief on page twenty one you drop a footnote and it says ok proximity alone are fraudulent activities can lead to an inference of right and it really does seem to me that was the government's case against just nora i mean twenty six other people may have been very knowledgeable but your argument really is look at what he did he must have kno and you cited the martinez decision but in martinez the staff worker was hiding the cash payments to doctors behind a bathroom cabinet is there anything nora did where we can infer guilty see the patients to town so we see went out to the patient wasn't home either time and then she goes sonora and legal and she and another case manager and she reports the missed he didn't get kickbacks and she never did say she's your witness nora knew we were defrauding she your argument is look how embed it but for him it couldn't have happened because he was handling all the for all that's a powerful argument maybe that's enough but i think it correct me if i'm wrong it would be beyond any other circuit opinion we've got right he didn't own it he didn't get kickbacks and he isn't doing  and over and over and over and over again and nobody's home i think the reasonable person you don't have to be a doctor to figure out that they're not they're not home they're not home bound we're home health and the patien never home i'm sure you're i'm sure the government pointed that out to the jury right that's one of the essential criteria are home health care yes and that was fall and the doctor said those patients aren't homebound when he was doing the st full circle from taking the call of the referral tracking the referrals in a tracking log and then health fairs people will go out to health fairs and you can do that you can advertise what you can do with health care as a health care fair if this is get that specific patient information and they did but then they give it to her for you to need to conspiracy it's just is would you agree with opposing counsel characterization of him as the most clerical among the charged defendants and all the district court just clinical if you look at his personnel file it describes his duties as working closely with the on the case managers which are the nurses in charge on know to  all the others pled out basically yes yes in various ways well what struck me about this was mr nora gets forty months and if he's really guilty i don't see that as a real high incarceration amount but a bunch of these other people who were clearly in the know didn't get very lengthy sentences right i mean that i'm shocked frankly that so many of them ended up with probation and here is that attributable to the judge's leniency or did the government just decide that  well there were four doctors and then there is bill bill or politicians and there's norah who swore it who the evidence shows is not only clerical but he's working with the case managers he scheduling to feel nurses i'm not answering your question i can with what the district court found at sentencing and that was that he was the central apparatus of the whole conspiracy it he was involved from the referral process to the ghosting process and he was in charge of referrals he wasn't just doing them on the side he was the intake peak that he took the call he  or or you know it's a conspiracy someone held him about that he assigned to feel arsed to go out he asked why criminal who's your cooperating witness wouldn't have said yes he knew one question  i believe on redirect he said the colonel did say yes he knew and certainly will nation he was nd in command said ok if redirect of criminal she said he knew that would end that then then the jury just been discussing but therefore had the government prevailed he would have served over ten years correct and this criminal would have served eighteen months well i'm not i'm not sure what the how the argument that twenty eight days that have been filed i'm sure from your office involved last determination and offset questions if would you agree that we couldn't decide the conspiracy loss amount in this case a lawyer substitution my question to you is you have been filing twenty eight j letters and i commend you for it in that case but it looks to me like the exact same issue exists in this case but what he did raise the it he did not raise it so there and i asked opposing counsel a nd ago but it certainly wouldn't seem appropriate which is why i'm asking the government that if an earlier panel on the exact same issue decides the lost should be offset that we would then go ahead and i don't know me yeah that's why i'm asking you do you think even under plane air review we should have two different conspiracy laws amounts were not it makes sense and she recruited doctors who were in it and were putting in a project that diagnoses nurses who are saying that they were going out to see patients and were putting in fraudulent coding and a bil it was not jonathan nor i was not in charge of referrals he took the initial you know it's like if you have a cover sheet on an application and you took the demographic data the social security numbers  the contact information and the patient's name maybe their primary care physicians name and then it was given to someone on the medical side because his manager left the medical person in but the governing council just  a nd ago said on redirect misquote now directly implicated him as to knowledge so i think that as to knowledge what the government has done throughout the case it's kind of blurring the lines about what the knowledge is the knowledge and this was widespread knowledge at abbottabad was that referral fees were being shaved for her patients not that there was kicked in not that medicare w being defrauded and not the doctors were mis coding things not the why isn't that an inference if ghosting was happening so privately and that doctors are being paid for patients i suppose anyone involved in the machinery we france and i think that that that that i get cited in my brief but you know that there's a there has to be more than mere presence around this criminal activity that has to be a real criminal intent and if it what it was was near present then you would have one hundred and fifty people most of whom didn't didn't benefit from this scheme it's kind of the reason i asked you very directly is did you make any last arguments other than insufficiency and you said no and that forces us to now say oh boy what about this other appeal could miss but as judge jones answered herself to my questions it doesn't seem like you preserve anything they may have preserved but you didn't what's your response to that and to your point i did not raise and that could be this detect scuse me agent bradford testified that fifty percent of the work that i was doing was from referrals from from doctors who were not on the payroll and to keep the other fifty percent came from doctors who were on the payroll there was no evidence about what percentage of the doctors who were on the payroll were actually referring for legitimate services patients were being patients were being seen the problem is that when the services were coded they were being coded for fraudulent fraudulent services i wanted to make one other point about this phone back in the midst visit the expert did testify that being home bounced and being qualified for home house care doesn't mean that you are bedridden and there are certain you know you are able to leave for doctor's appointments you're able to leave for religious services there are all kinds of things that are exceptions to this one  varied way down then she found that he's indigent he doesn't have any loss as to restitution he's only going to pay fifty dollars per month for three years a supervised release so he's not actually going to get hit by much right  these are people who are still working in their field jonathan are because of this conviction you can't ever work in a medical field with respect to that restitution because you've indigent and you know it's fifty dollars a month but he was assessed with twelve million dollars of restitution so at any point if he were to game employment that number of fifty dollars a month would go up until that twelve million dollars is paid it's like you have twelve million dollars in student loan debt that never goes away so that if you dollars is based on his current circumstances ok thank you i'm not carrying student loan debt not having any as have raised those issues on a p r from mr no there was no there was no strategic reason for me not to put those and so to the extent that explain error i encouraged a court to look at but there was no there was no good reason for those air on the of we won't have too many more room thank you very much thank you have a nice day