court my name is katherine windsor and i represent godwin on you bore the issues and i plan to address our first on behalf of all of the appellant the instructional error judicial bias issue and then if i have time t confrontation cause issues surrounding the recorded phone call of my clients and mr a bluejay who is now deceased so turning first to that instructional error bias issue at that the core of this issue is that the district court threw its admonitions disparaging remarks and rulings on evidentiary matters interfered with the trial so extensively as to render it unfair or this court has put it another way the trial court's conduct created an atmosphere in which fair trial could not be conducted these errors which we are asking the court to consider cumulatively fall into four big categories and they are first that the court miss instructed the jury on the burden of proof and reasonable doubt in a myriad of ways which i can get into second that the court misinformed the jury that it could not consider basic impeachment of the government's witness in the form of bias and benefits which happened choose separate block rating witnesses third that the court allowed the government to invade the province of the jury by allowing the government agent to a pine about who he believes when he interviews and  whether the defense's arguments would have changed his opinion of the investigation or how he would have conducted the investigation and then finally the court to grant denigrated defense counsel to such an extent that the defendants did not receive a fair trial and we've really catalogued a lot of those admonitions can i ask you a question about those and i i tend to agree with you that there's a lot of things here that are not appropriate is it worse than united states versus scott how do you distinguish scott well instead what i there was a there was one hundred in that case one hundred admonitions to defense counsel and it looks to me like a pretty bad case of impeachment and that telling the jury that the that it was inappropriate to consider any kind of bias at the witness might have so those i mean really the reasonable doubt just on its own is structural error and scott was focusing more on the bias issue which we have here as well but what argument is really that the way that the district court was interacting and was ruling on these objections informed the jury is as to how they could consider evidence and what the burden of proof was so for example when when the judge was interrupting counsel's opening statement repeatedly and saying counsel opening statement is not argument which we would have is absolutely true but then when when he takes the next step and repeatedly says you're not you're not allowed to respond to the government's evidence this is what you are going to show and so at that point the jury is it's it's interrupting defense counsel but the issue with that is that the jury is being told that the defense that there's a suggestion that the defense has some obligation to show what evidence that it's going to prove that it has an obligation to prove something and that's just one example there's also when the defense counsel was questioning the government agent about gaps in its investigation the district court stopped that line of questioning and said the government is not on trial here and you know and that was done in a certain way which created that sort of hostile environment but what's most troubling is that the jury was told we can't consider  not on trial here it's not appropriate for you to ask about investigation that they could have done the didn't do the jury is sent a message that we're not supposed to look at that that's not appropriate when the heard of cross examination of a cooperating witness and his counsel start beating up the witness it's it's first of all telling the jury that the defense counsel is behaving improperly in beating up the witness but it's also telling telling the jury it's not appropriate to consider that this witness might have some kind of bias in this case this this witness had so in forty thousand dollars from her employer and was not being prosecuted for that and that line of questioning was cut off and so the jury was given through out the trial in many ways this misinformation about how to consider the evidence and what evidence it could consider if i can can i jump second if you are which do you how does the court of questions about that or what your second issue the second issue with the the introduction of that the confrontation clause issue relating to the interaction of the recorded phone call and that was the recording and then the transcript that was is in a confrontation cause issue i mean the phone call itself was introduce a bill was it not that sort of phone calls introduce all the time i think i think so what makes it so is what your contention is was a confrontation cause issue because the agent said what he was talking about there was yes was this exactly but that's not a confrontation cause issues it is not just the agent offering an opinion that he but there's not there's no evidence here that he was saying this because somebody else told him what it was it was said he'd set up this whole call and it was his and it was his conclusion that that's it that's what this reference was to and then you haven't seen what you think comments which were not clearly in glass is that it i mean i want to know what you are saying is that yes that's correct that this when you look at when you listen to this call and you look at th transcript you would never take away from that that that mr on your boards agreed to say well a prescription for a power wheelchair i mean there's no that that that just doesn't occur in any  sense and so if you know let's say there had been a transcript where mr buddha had called mr on your and said hello mr on where i would like to buy a prescription for a power wheelchair or something you know maybe it would have been that clear but something that was understandable there's nothing in the transcript the only way that you get that reading is from mr a blue day saying that's what happened but mr good it was dead and that was my question and i'm sorry i did i asked it wrong is there anything in this record that conclusion it's it's a it's an opinion that probably shouldn't be entered but it's not hearsay so that's my question well if there's evidence in the record that they went over that they spoke after the call they went over the transcript many times in fact he said he went through it with him and so i think we can certainly infer that that that was that what happened that mr didden agent marcus testified to the transcript he had had the transcript prepared and then he him the transcript was accurate yes and the transcript alone doesn't even talk about a wheelchair no it does not there's no i mean i looked through that transcript i can't figure out where that would right yes although what the record says is that they spoke in a language that in another language that was difficult to understand there certainly wasn't any translation that happened i believe i've gone over my time i don't want to we have joined the issues that were raised by mr on the boards lawyer with regard to the structural defects in the trial the court can only reach my issues and that i raise in my briefs if the court determines that the i and the health and human services there was the checks that there were the checks that were paid to her by findlay and then there was the testimony of dr glover and i want to focus on the testimony of dr glover  in particular one of the issues that i think needs to be a library to the bone in preparing for the argument today was whether the admission of dr glover's testimony at all which we maintains and proper and then it's our position that it was an abuse of discretion to restrict to the extent that the trial court did my cross examination of dr glover first of all i was attempting as i think the record is clear to harms first of all he without objection from the government cut off the cross examination thing was irrelevant well it's only not a relevant is the court previously held in schoenberg that when you get into what the the judge prohibited the cross examination because it was irrelevant and it clearly was not a relevant but when considering the harmless error under schoenberger larsen the court required to consider four things the importance of the witnesses testimony where there is evidence corroborating what the witness said and the extent of the community cross examination on the strength of the government's case now the importance of dr glover's testimony that in fact was critical because it's a plot a missing piece of purchased prescriptions from them in fact they both to my that they even knew michael dr glover therefore provided critical evidence that in some five to seven years earlier he provided prescriptions for wheelchairs to ms more sita at her request he did say that that that he got any kickbacks in fact he testified he did he did it because he wanted to keep the business and the the wrong he never said that for example that he was more she you know i'm a doctor you know you've been in this business you know that's not right you know that's illegal and he never said any of that he said she asked him for the prescriptions and he gave it so why does the see the evidence argument i mean that's what that's why i'm having to endure i agree with your governor doesn't tie her to this conspiracy but so what i mean so he people did the evidence comes in for whatever limited value it has why is it so prejudicial well because again it it's applied a missile to use of evidence that the government was had no proof of in this actual case and she now which on it was out i'm sorry which but given the inclusion of dr glover's testimony in addition to my client's statement i think is is a violation of the confrontation clause by admitting that testimony from dr glover which supplied the information that was missing both from her statement and their problems with the statement as i think came out of cross examination that one of the key elements of that statement and the government makes a big issue about this in the closing argument  client brought up the statute of limitations herself when discussing the issue with the help and who will services but that's that was in the agent's original notes that she took contemporaneously with my client statement that doesn't court rule that the judge was stopping defense counsel from engaging in irrelevant repetitive or otherwise improper questioning or editorializing in this case your honor i don't think i did any of that from the moment i walked into the court room till the completion of the case because the judge continually demean me in front of the client sorry for my opening statement through my cross examination of the various witnesses and indicated very clearly to the viewer that i was acting improperly and obviously that would have a negative impact upon my credibility in front of the jury so that was the problem and the judge at every turn every opportunity he had to make a decision  to harm my client he engaged in that kind of behavior both in front of the jury and in his rulings now for instance as far as the ruling goes in this particular case the doctor prepared sixty three thirty prescriptions of power wheelchairs prior to trial i had made various motions and said ok here's the prescriptions tell the government what's wrong with these prescriptions and the government client didn't see these patients were not saying that the diagnosis in the prescriptions was an accurate we're not saying that the wheelchairs were not delivered we're not saying that people except that will chairs and they sign form what we're saying is after the fact you know some of these patients didn't use the will chairs and therefore somehow that that was a fraud even though there's nothing about the prescriptions themselves are fraud fraudulent i and i then designated an expert and said the doctors shi'a ok i would like to call a medical expert who will testify and will corroborate dr we are going to write may's diagnosis that in fact these patients needed the wheelchairs and that in fact he saw the patients that when he said certain things were wrong with the patients that was accurate based upon their medical history that the people signed for the will cheers and i wanted another expert to show that was consistent with the medicare rules the government then went and said oh no you can't call the expert to corroborate your client and the judge ruled in favor of the government and prevented me from calling two experts even though they never presented any kind of a medical expert at all in addition to him i don't know when i'm wrong and i've been wrong a lot in thinking that that's is that a separate issue raised in your brief the exclusion of the expert testimony with yes that's a major part of our brief dr shah and the expert testimony and submit but it's not a that doesn't have to do with the it is a separate issue but you didn't raise that as part of the judicial bias part of the ca witnesses well dr rashad who is a medical expert was prepared to testify that in fact what dr which are going to write may wrote down in his prescriptions was accurate as to the medical conditions of the patient that he had looked at the medical records of the patient as it existed and he agreed that dr let's call him dr j's position as to why these people needed the wheelchairs was consistent with the observation that dr jay made when he saw the patient and it was consistent with the medicare rules that's why and i wrote a brain of the factor isn't that really legally irrelevant i think that's one of the weakest arguments you have because truly gauging medicare fraud they would do all those things you just said dr j did well not necessarily your honor normally speaking most of these cases they don't see the patients for one thing the wheelchair is may not be delivered it may be phony prescriptions not by real doctors i have i've done a lot of medicare fraud cases your honor and i haven't seen any where in fact and in fact dr j was the only person in this particular case that was a doctor that actually did see the patients the wheelchairs were delivered and the people acknowledge that they received your experts were simply going to say that these these prescriptions if you will are facially valid well not really right they were going to say we saw we we went examined these particular wheelchair recipients and the and it's accurate they were prepared to say that they looked at the patient's medical records right was consistent with ok their medical condition that's thank you that's what i was just i was why wasn't clear in the code word less the same question but look at it from the other side of the coin what if the government put forth that in fact these people didn't need the wheelchair it or they weren't medically necessary they didn't call any medical expert they conceded that in fact the prescriptions complied with a medicare regulation they didn't say that the doctor was making up the prescriptions or making up the diagnosis they presented basically two witnesses knee had been removed after falling out of the shower she had a shortened foot a missing knee and pins holding her ankle together now that was her medical condition shattered right yes and and pathy that was another thing that the judge refused to let me to do when she was on the witness stand i asked her about her medical records that showed she had neuropathy which i understand means there's blood not to the foot and so that you need a wheelchair and the judge refused to let me ask those questions even though i had the medical records right there and even though we had an investigator had talked to her so the one of the two patients had obviously very severe medical problems the other live patients that testify on government examination testified that she had fallen down fifty times in the past and and both of these patients admitted that they knew they were being prescribed will cheers and accepted the will cheers and use them partially but didn't use them all the time so you know let's assume a doctor prescribed these will tears based upon what he observed other medical doctors agree with it and then after the fact the patient may not use the will jurors all the time and yet there's nothing in the record to indicate that the doctor is in any way making up the diagnosis in addition your honor i had other medical records to show for the other prescriptions of the doctor i wanted to put those into evidence to show that he was consistent that these other people that the government interviewed in fact needed these will just and i had three live witnesses that were available to testify that in fact they had seen the doctor the same fendi clients and that they in fact used the world shares and the government objected to it and even in their brief they admit that the judge didn't make it very clear about whether these were fendi patients or not and the children fused to let me bring these patients to show that the doctor had a good faith intent based upon what he did with other patients the judge refused to give a good faith instruction  to show that the the dr j state of mind was such a chance that he believed that in fact these patients needed the will cheers and the government rebuttal argument the government argued that why didn't the defense present the medical records of these various patients in support of his claim thereby shifting the proof to me even though they knew that i had tried to get in these medical records in my case in chief and they objected to m getting this evidence in and then argued why didn't he bring them in and the government basically conceded in their their brief that there was basically improper on the part of the judge that he should have supposed kickback which i think it was a very important part of this case the government was saying that he was being paid by fendi for these prescriptions and the way they tried to prove that is they saw they had found a little piece of paper at affinity business when there was a search warrant that had the letter j on it and based upon that piece of paper and the fact that they went through certain amount of money over a period of time around twenty thousand dollars out of the bank and that during a different period of time not corresponding with any of the thralls dr j put cash in his bank of around nine thousand dollars somehow that was a game that was paid and i understand you think it's so if we were verse on grounds other than sufficiency of the evidence do you really man for a new trial yes ok so i mean there will be a new trial there's no double jeopardy no there's no double jeopardy in th sixty nine as the court can see in these briefs the very first criminal trial i ever had was in front of judge real which was the hitler case which was cited three it was my very first case your first boring part unfortunately yes there were several curative instructions provided by the court and i apologize at the outset because we needed to mention one curative instruction which i think is important to focus on and it was actually the last instruction maybe we can work your colleagues we can work together and it seems like really bad stuff and your brief is quite candid i think in saying a lot of this stuff should never occurred and we have a judge with whom it's occurred in the past and the court for whatever reason saw fit not to reverse convictions in that case the appearance of justice issues here bothers me not so much the particular rulings and does it  curious instruction at the end of all that really solves the problem in other words if a judge behaves in a way that even the department of justice says he shouldn't have behaved too over the course of a long trial does that there's the fact that he says to the jury oh never mind heard instructions and i in particular i would say to morgan from this just this part three seven six and thirty one zero eight and this is a quote from the casey court even in cases where a judge participation is extreme that certainly not going to agree with the suggestion is a fiction the supreme court has said juries must be assumed to follow their instructions i can only say to one instance bruton for example where the court has said we're going to put that aside so gave several instructions one of the end of the second day at the end of a fairly heated back and forth before between defense counsel in court and then at the beginning of the third day there was another instruction and then a reminder at the end of the fourth day and then the one i there i think that again that's a big piece of the puzzle number one and then i want to turn to the issue of whole notion of a burden shifting there's a whole nother constellation of instructions that i  and excuse me and i think help greatly on that for example defense counsel is focused on the opening statements in the courts in the robson of defense counsel will following the instruct all excuse me following the opening statements the court gave an instruction defendant has no burden defendant doesn't have to put on any evidence right that bothers me about that is that defense counsel got up and i did read all these transcripts from the surrounding parts of them the defense talk about the government well doesn't that give you the impression that there's an affirmative obligation on the defense to talk about the evidence that it's going to put on i mean that and that's not the law  any way yet the judge i mean i am you know we're all experienced in this regard and normally the opening statement is allowed to to point at the holes in the government's evidence and talk about what the government said for of it so that's just the beginning of this long series of credit you know improper sure expectation that you're creating on the part of the jury sure and again and unfortunately it seems like it was an unfortunate phrasing on the part of the trial judge because when you look at this court's simple instruction on what an opening statement is it says quote it is simply an outline to help you understand what that party expects the evidence will show different so  we can go with the jury's supposed to follow the law but what do you think really impresses a jury more with the judges doing throughout the trial i don't know what it reads to him at the end i think again  court has to assume the juries listen to their instructions and follow them will a jury be influenced between the give and take yes but if the last words ringing in your ears are this kind of strongly worded counsel that i just quoted you know nothing i've done here should be something that should influence your verdict we have to assume that they had to abide by those well i've been thinking about the scott case too  and that was about five years ago and there was a finding that most of the comments that were cut off were irrelevant or unimportant or repetitive  here we not just not only does have that but we have some fairly egregious substantive errors as well and i think that's what takes us out of this guy case and also i think that what they were trying with and many of the questions and many of the things that the defense counsel was trying to do in any other courtroom would have been allowed to go forward i'd be happy to talk about the substantive issues with one sort of  many of them to the court then you bring it up and you ask for a reversal but i don't think the government i can't stand here and defend every single rule in every single objection that was overruled from the trial court sense from the judge's comments and or for example aggressive questioning of a of a of a witness and i don't think we have that here or general admonitions to counsel and less the jury comes away with  judicial bias issue i mean let's assume that you've got a case with four hundred close calls and everyone goes against the defense and the judge makes the kinds of comments he was making here even if we don't find that any of those four hundred rulings w at the core of it which is how is it a jury doesn't know about the propriety of the ruling when a ruling happens and what i understand this court's sort of analysis in the in the context of prichard in the hall and cases like that is whether or not the jury has communicated a sense of partiality such that they think the judge is in the government's camp on one hand and or that the judge as against a particular defendant on the other hand and you know look i also want to but i think that's what you're jurors that their minds are you know like a clean slate until after you know at the time they start deliberating you know they make up their minds as evidence comes and you know and they think about it and then they're also trying to figure out well  deciding this case properly or you know the judge should know and we're concerned about doing the proper thing and they and they get the signals that emanate from the judge and right off the bat you know mr sherman a gets beaten up you know and i think you know i read that question i thought it was a well we got the answer that i'm not here to teach law school if you don't know what don't blame me about you know our sports what that tells me is that the judge judge does and they see those black robe on the judge and they see the position of power that a judge occupies you know of course conclusions will be drawn but the government's point and consistent with this court case was that i  on manning for a different district court judge to do the new trial your honor from the government's perspective based on what we've already in the briefs number one and number two i i think i understand it's d o j policy we can't ask for the prescriptions from the list of doctors i don't i do i do not believe so i believe that the second declaration films from victoria on your bore and victoria on you bore said four doctors son grimes two others whose name escapes me right now and then two additional beneficiaries all were false prescriptions and that those all  reliable it won't in calculating the amount of loss you know what we've got here is sort of the of the evidence is not in the record of trial the judge is not dealing with that he's dealing with somebody saying oh somebody told together i want to have just thirty seconds to try and articulate what i mean by that when we go back to the bias yet i'm sorry we have more minutes to do a minute ok as i think even board has conceded in her reply brief counsel the invective and the admonitions and hostility was overwhelmingly if directed anyone directed at the defendant go hard as daughter that is each of them said i've looked at every one of these prescriptions one thousand prescriptions fourteen prescriptions thirteen prescriptions i believe none of them were for patients i have seen these are not my  instruct this court what it can do i would suggest to this court that if you were in the business of asking whether or not a jury was overcome with partiality emanating from a judge you've got a slice and dice th three defendants here because that's what they've done in their reply brief and that's what the evidence did can you address the hearsay issue absolutely as i understand  mr on your fourth point with respect to the four hundred four be evident the phone calls for mobility there were two things that i understand him to be complaining about one the transcript seem to smuggle in translations from cares the transcript wasn't admitted for the truth of the matter asserted it was an aid for the jury the court told the jury you can only rely on a phone call the second piece of the puzzle and i feel that  he's not qualified as an expert i'm not sure it's a hearsay issue but i'm troubled by it he's not qualified as an expert if i'm sure i'm sure he's not saying somebody else told me it was a wheelchair because then it would be testimonial hearsay so everything you heard what does that mean seems to me well how can she have any in the opposite being qualified as an expert or channeling somebody else's testimony how can he say that means wilcher he can say that for this reason this court's decision the united states versus the euro says that perfectly permissible as a federal rule of evidence seven a one lane witness opinion and if the court can indulge me a law enforcement officer involved in the investigation may offer lay opinions about the meaning of intercepted phone calls but these opinions are subject to the requirements of federal rule that's one seven zero one day requirements of seven seven zero one are twofold rationally based on the agent's perception number one and number two helpful investigation including his direct perception of several hours of intercepted conversations and other facts you learned during the investigation we don't have several hours of intercepted phone calls we have one phone call he said he listened to it up on but he  it would have been problematic if but for the fact that he said based on what you just heard and his investigation but it was a problem because i paused as i see i've gone over my time i'd be happy to answer any other questions by the defendants you can see they almost conceded in a reply brief this was directed at one person number one number two if you disagree with my suggestion that the instructions otherwise help deal with that one defendant you certainly can't disagree i would